Tad and Bert Turner were brothers who each owned 1/2 of the shares of Tadbert Company, a successful construction firm. In 1981 Tad validly executed a will in which he left his entire estate to his then wife, Marlene. If she did not survive him, he gave his estate to his children in trust until the younger reached the age of 30 at which time they would divide the property equally. At the time Tad had 2 children, Nancy, age 21, and Wade, age 14. In 1984 Tad and Marlene divorced. Shortly after the divorce was final and in the presence of his friend, Bill Baker, Tad tore the 1981 will in half saying to Baker, 'I just want to be sure that Marlene does not take any part of the property.'

In 1989, Tad married a second time to Grace Parks. By that time Nancy had become a very successful money manager with a very high income, and Wade was just about to graduate from college with a degree in civil engineering and the intention of joining Tadbert Company. Tad's lawyer, Bev Glazer, attended the wedding, and brought the will she had drafted for Tad with her. At the reception and after several glasses of champagne, Bev supervised the signing of the will. Everyone present thought it a wonderful addition to the festivities. Tad signed in the presence of a number of friends, his children and Grace. Bev asked Bill Baker to sign as a witness and said she would be the second. Knowing that only two witnesses were required for a will, she also suggested that Grace sign as a witness to her new husband's commitment to the marriage. Grace signed and so did Bill Baker. Tad then proposed a toast to the occasion, and in the ensuing celebration, Bev forgot to sign the will. She did not discover this oversight until after TadÕs death.

This 1989 document provided among other things as follows:

'I give all of the stock I own in Tadbert Company to my son, Wade, whom I expect will eventually succeed me as president of the company. To equalize the treatment of my children, I give $300,000, the value of my interest in the company to my daughter, Nancy.

I give the residue of my estate to my wife, Grace Parks, if she survives me.'

Tad had a great deal of wealth from sources other than the company, and his expectation was that the residue of his estate would be much larger than the value of the company. He named his brother, Bert, as the personal representative of his estate.

In 1991, Bert Turner died, and Tad purchased Bert's entire interest in Tadbert Company from his estate for $400,000 and thereby became sole shareholder in the company. In 1992, Tad and Grace had a child, Dustin.

In January, 1994, Tad discovered that he had cancer. He remembered that Bert had been named as personal representative and was no longer alive to act. Without the assistance of a lawyer he wrote the following note:

'This is an addition to my will. I name my wife, Grace Parks, as personal representative of my estate.'

He signed this paper in the presence of 2 of his friends on March 1, 1994, and they both signed as witnesses in his presence.

On October 15, 1994, Tad died survived by his wife, Grace Parks, and his children, Nancy, Wade and Dustin. At that time his estate had a value of $5,000,000. He was the sole owner of the stock in Tadbert Company which had a value of $1,000,000. The rest of the estate consisted of real estate and stocks and bonds.

How should Tad's estate be distributed? Explain fully.

II. (60 minutes)

A. (30 minutes)

B. (30 minutes) In his will Victor Willis made the following devises:

'I give my interest in the apartment building at 27 S. First Street, Mankato, Minnesota, to my son, Michael.

I give the residue of my estate, consisting of all property I may dispose of by will but not disposed of by prior provisions of this will, to my friend and companion, Raymond Stacy, if he survives me, and if he does not, to my son, Michael.'

Victor lived in Minnesota all of his life. In late 1995, he was diagnosed with terminal cancer. As the disease progressed, his pain became more and more intense. Substantial quantities of pain medications failed to make the pain bearable. On numerous occasions he asked several people to do something to end his misery. Finally, on February 15, 1996, Michael entered Victor's hospital room and intentionally shot him to death. After some deliberation the county attorney issued a statement that she would not prosecute Michael on the ground that his anguish over his father's condition and suffering was punishment enough for his act.

Victor was survived by his only child, Michael, Michael's only child, Eric, and Raymond Stacy. He was not married at his death. His estate consisted of the apartment building and other assets worth $200,000.

You are the judge of the probate court in Minnesota in which Victor's estate is being administered. How would you direct his personal representative to distribute the estate? Explain.

III. (60 minutes)

A. (30 minutes) In the following examples you may assume that the facts given are true. Assume in each case that Testator was never married and had no lineal descendants. Neither of her parents survived her. She had one brother, Brother, and a sister, Sister. Brother had one child, Carol Smith, and both Brother and Carol Smith survived Testator. Sister had 2 children, Ralph and Mary. Mary had 2 children of her own. Both Sister and Mary predeceased Testator. Ralph and Mary's 2 children survived Testator. In each example state how the estate should be distributed and give your reasons.

(1) Five years before her death Testator executed a valid will leaving her entire estate to her favorite niece, Carol Smith. A year before her death erroneously believing that Carol Smith was dead (she was on a solo round the world sailing trip and had not been heard of for several months), Testator tore up the will with the intention of revoking it. She died before executing another will.

(2) Suppose that instead of tearing the will but under the same erroneous belief, Testator executed a second will expressly revoking the first will and leaving the entire estate 'to my nieces and nephews in equal shares.'

(3) Suppose that instead of tearing the will or executing the will in example (2), but under the same erroneous belief, Testator executed a second will stating, 'Because my niece, Carol Smith, is dead, I hereby revoke my prior will and devise my property in equal shares to all of my nieces and nephews who survive me.'

How should Testator's estate be distributed in each example? Why?

B. (30 minutes) Longfellow devised the copyright to a novel he had written to his son, Hank, and the copyright to a collection of his poetry to his son, Wadsworth. He devised the residue of his very substantial estate in trust to Bank, as trustee of a trust with income payable in equal shares to Hank and Wadsworth for life and then to the survivor for life. At the death of the survivor of Hank and Wadsworth, the trustee was directed to distribute the trust assets to Longfellow's then living issue, per stirpes. During the term of the trust the trustee also had the power to distribute principal to either son 'in amounts it deems advisable in its sole and absolute discretion.' The trust included the following clause:

'The interests of the beneficiaries of this trust shall not be alienable by them nor shall such interests be subject to the claims of creditors of any beneficiary.'

Hank and Wadsworth were both childless at the time of Longfellow's death, and agreed that they should share equally in all of their father's assets. Accordingly each one disclaimed and refused to accept the copyright interest to him. As a result under state law both copyrights passed under the residuary devise to the trust.

Ten years after Longfellow's death, Hank lost a lawsuit arising out of his business activities. Compensatory damages of $50,000 were granted and because of the fraudulent nature of his actions, punitive damages of $250,000 were also granted. The judgment creditor has retained you to initiate proceedings to reach Hank's interest in the trust to satisfy the judgment. What arguments would you make on behalf of the creditor? How would you assess the chances of your success? Why?