I. (60 minutes)

The first will of Reuben Chavez executed properly in 1990 contained the following provisions:

Article 3. I give all of my tangible personal property to my son, Juan, and his children.

Article 4. I give the sum of $50,000 from my savings certificates to my dear friend, Claudia Mills, if she survives me.

Article 5. I give the residue of my estate consisting of all of my property not disposed of by other provisions of this will to my son, Juan, if he survives me. I know that I have a son, Jorge, and a daughter, Juanita, but I choose to leave them nothing because they both have moved away and not kept in touch in my old age. I do not approve of the way they have chosen to lead their lives.

Reuben Chavez's second will properly executed in 1992 contained the following provisions:

Article 1. I make this my will and revoke all prior wills and codicils that I may have executed at any time.

. . .

Article 4 I give all of my tangible personal property to my children, Juan and Juanita, in equal shares.

Article 5. I give the sum of $50,000 from my savings certificates to my dear friend, Claudia Mills, if she survives me.

Article 6. I give the residue of my estate to my children, Juan and Juanita, who survive me, in equal shares. I intentionally leave nothing to my son, Jorge, who has not contacted me in years.

Reuben died in May, 1994, survived by his daughter, Juanita, and his son, Jorge. His son, Juan, was killed in a plane crash in 1993 survived by his son, Ramon, who is still living. Reuben had always been close to Ramon and continued to be up to the time of his death.

Claudia Mills is an attorney who represented Reuben in his divorce from his wife in 1989. From that time until Reuben's death, he and Claudia had dated. Many of Reuben's friends will testify that their relationship was quite close and intimate.

Both of Reuben's wills were drafted by Charles Smith, an attorney in partnership with Claudia. Smith will testify that he drafted the wills only after Reuben insisted that he wanted Smith to represent him. Both Claudia and Smith had recommended that Reuben seek the advice of an independent lawyer, but Reuben insisted that he knew what he wanted and would not go to anyone else. Reuben signed a letter stating those facts.

Smith also is willing to testify that Reuben explained that he changed his first will after Juanita made the effort to contact him and even moved back to the town where Reuben lived in 1992 to be closer to him. From that time until his death, Reuben and Juanita saw each other frequently.

After Reuben's death the original of the 1990 will was found in his desk drawer where he kept other valuable papers. The original of the 1992 will, however, has not been found although Attorney Smith has a copy in his office file. Smith remembers very clearly that Reuben took the will with him after the execution and said that he would keep it with his other valuable papers.

Reuben's estate has a total value of $400,000 mostly in stocks and bonds. He did have savings certificates worth a total of $42,000.

A statute of the state of Reuben's domicile reads:

If a subsequent will which revokes a prior will is itself revoked, the prior will is revived only if the testator intended that the prior will be revived.

How should Reuben's estate be distributed?

II. (60 minutes)

[NOTE: The questions in this part have different times

and points assigned to them.]

A. (30 minutes) In 1986 Raymond Wilson died leaving a will which created a trust for the benefit of his son, Dennis, who had never shown any responsibility in handling money. The trust directs that the trustee pay all income to Dennis annually until he reaches the age of 40 at which time all of the trust assets are to be distributed to him outright. If he dies before reaching 40, the trust is to go to his issue who survive him, per stirpes, or if none, to the First Baptist Church. During the term of the trust the trustee also has the power to distribute amounts of principal that the trustee in its discretion deems advisable.

The trust contains the following clause:

No beneficiary hereunder has the power to transfer or in any way anticipate the beneficiary's interest in this trust nor is any beneficiary's interest subject to claims of any creditor of the beneficiary without regard to the nature of the claim or how the claim arose.

Two years ago when he was 32 years old, Dennis transferred some of his own property to the trustee to be administered as part of the trust Raymond had created for him. Raymond's will authorized the trustee to receive such an addition and administer it as part of the trust. Dennis did this because he was gambling heavily and thought this was a good way to keep the property out of his hands. He would not be able to gamble it away if he did not have it.

About a year ago Dennis got into a fight in a bar and seriously injured another patron, Clark Kent. Kent sued Dennis and obtained a substantial judgment against Dennis. Kent now has demanded payment of this judgment from the principal and income of the trust. Can Kent collect from the trust? To what extent? Explain your answer.

B. (15 minutes) Alice Walker left a will in which she gave one half of her estate to be her daughter, Mary, outright. She gave the other one half in trust for the benefit of her other daughter, Grace. This trust required that the income be paid to Grace or be accumulated as the trustee saw fit as long as Grace remained married to her husband, Dick James. The trust contains no provision for distributions of principal except that it requires the trustee to distribute the trust to Grace if she divorces Dick. If she dies while she is still married to Dick, the trustee is required to distribute the trust to Mary or her issue if she is not then living.

Alice made no secret of her dislike of Dick. She told several friends that she believed that Dick was lazy and was after her money. She also believed that he treated Grace badly.

You are the judge of the court in which Alice's estate is being administered. Grace has filed a petition asking that the trust be declared invalid and that her share be distributed to her outright. How would you rule and why?

C. (15 minutes) Briefly describe, in a way that a client could understand, the difference between the terms "per stirpes", "per capita with representation" and "per capita at each generation" as we have defined those terms in class.