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If you check your will or trust you will probably run across the Latin term “per stirpes.”   The Supreme Court in the recent probate and trust case of O’DONOGHUE v. DOOLEY, 2016 OK 110, 383 P.3d 773 defined per stirpes to mean ” ¶17 The Latin term “per stirpes” means “by roots or stocks” and is a method of dividing an estate where the gift is “[p]roportionately divided between beneficiaries according to their deceased ancestor’s share.” Black’s Law Dictionary (10th Ed. 2014). The term comes from the Latin word “stirps” which references a “branch of a family” or “a line of descent.” Black’s Law Dictionary (10th Ed. 2014). The phrase “lineal descendant” is defined to mean “[a] blood relative in the direct line of descent. Children, grandchildren, and great-grandchildren are lineal descendants. Black’s Law Dictionary, (10th Ed. 2014). Spouses are neither blood relatives nor lineal descendants of each other.”

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In everyday speech, it means that the inheritance will follow the blood lines down from the ancestor and stop at the first alive person or persons who can take.  Let’s say that a will leaves a share of an estate to my children per stirpes.  You have only one child.  Unfortunately your child does not survive you.  But he or she leaves a child, your grandchild.  The grandchild steps into the shoes his or her ancestor, your child and inherits your child’s share.  Le’t say that you have two or more children.  If any one or more of your children does not survive you, then his or her children would step into their parent’s place to inherit.

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An experienced probate, will, and living trust attorney like Brent D. Coldiron, knows what to do in these situations. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.

 

The probate court in Tulsa County ruled that a child was disinherited by a pour over will and a trust.  In September 1997, Ralph and Nancy Murano created the “Murano Revocable Trust” (Trust). The Trust made Ralph and Nancy Murano trustees, and dedicated the benefits of the Trust to themselves during their lifetimes. It appointed new trustees upon the deaths of Ralph and Nancy, and provided for shares to nine beneficiaries, including plaintiff Jeromy Murano (Murano). At the same time, Nancy Murano made a will (Will) bequeathing all residue of her estate to the Trust.

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In January 2013, after Ralph Murano’s death, Nancy Murano made amendments to the Trust, deleting the existing paragraph on beneficiaries, and adding a new paragraph listing only four beneficiaries. Jeromy Murano was not among these amended beneficiaries. Nancy Murano was ill with multiple sclerosis at the time of the amendment, and having considerable difficulty writing. She signed the amendment with a ‘X’ and her initials, although she did later manage to sign a notarized document requesting her attorney to implement the Trust amendment.
After Nancy Murano’s death, Jeromy Murano challenged this Trust amendment, claiming her mark and initials were legally insufficient to amend the Trust. He later added theories that Nancy Murano was not competent at the time of the amendment, and that he was an “omitted child” or pretermitted heir in the Will, and entitled to a share of the Trust property pursuant to 84 O.S. § 132, and In re Estate of Richardson, 2002 OK CIV APP 69, 50 P.3d 584. In November 2014, the probate court issued a declaratory judgment finding that: 1) Murano was not a pretermitted heir, and 2) Nancy Murano’s amendments to the Trust were legally effective to remove Murano as a beneficiary.

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The Court of Appeals held in this published opinion as follows:

This appeal presents two questions of law. The first is whether the holding of In re Estate of Richardson, 2002 OK CIV APP 69,50 P.3d 584, requires property to be distributed to Murano as an “omitted child’ despite the Trust amendments.

Title 84 O.S.2011 § 132 provides:
When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.
In Richardson, the plaintiff sought an omitted child’s share from the estate of his deceased father. The executor moved for summary judgment on the basis that decedent intentionally omitted plaintiff in an amendment to a pour-over trust executed after decedent’s Will. Id., ¶ 1. The trial court granted summary judgment, but Division I of this court reversed, holding that. . . the provisions of a pour-over trust, which have been amended after a will is executed, are not incorporated by reference in the will so that the amended provisions of the trust constitute competent evidence of the testator’s intent to omit an heir as required by Oklahoma’s pretermitted heir statute.
Richardson thus held that an amendment to a trust mentioned in a will is not effective if it removes a child as a beneficiary of the trust unless the will is similarly amended to show a clear intent to omit the child from any distribution.
Richardson appears, however, to be in opposition to Welch v. Crow, 2009 OK 20, ¶ 5, 206 P.3d 599. In that case, an inter vivostrust conveyed property to two children, Jean Ann Morgan and Mary K. Crow. The associated will recognized that decedent hadfour children: Jean Ann Morgan, Mary K. Crow, Jerry Welch, and Martin Welch. Martin Welch was deceased at the time of the will’s execution. There was no language expressly omitting Martin Welch or his children from the will. Martin Welch’s children therefore sued to obtain a share of the trust property as pretermitted heirs.
The Supreme Court reiterated that:
Our recent opinion in In re Estate of Jackson, 2008 OK 83, 194 P.3d 1269, is dispositive of the question. There, we held that § 132 “unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts.” In the instant cause, the grandchildren are not entitled to a statutory share in the Trust.
The Supreme Court concluded that only the named beneficiaries of the trust should receive a distribution.
We find no authority indicating that the Supreme Court explicitly disavowed the rule of Richardson in these later cases. The question, therefore, is whether this case falls under the rule of Richardson (child omitted from will) or Welch (child omitted from trust). We find a crucial difference between this case and Richardson. In Richardson, the will did not refer to the son by name or by class. In this case, the will did refer to Murano as a child, and stated that the residue of the estate was to be distributed pursuant to the Trust agreement. The facts in this case are very close to those in Welch, and we find the result ofWelch applicable in this case. We also find this result logical based on broader principles.
A will that bequeaths the contents of a revocable trust in which the settlor is both trustee and beneficiary bequeaths nothing until the settlor’s death. Hence, the intent of the testator is determined by the contents and provisions of the trust at the time it becomes irrevocable. Nancy Murano’s intent shown in the Will was clearly and unambiguously to bequest to her heirs only what she gave them in the Trust instrument, which was subject to change at any time before her death. Murano was not omitted from the Will, but was bequeathed whatever the Trust provided for him. In this case it provided nothing. We find no principle that a worthless bequest renders the recipient an “omitted child.” Rather, we find it logical that making a knowingly worthless bequest shows a clear intent to disinherit.
The second question of law is whether the amendment to the Trust was valid, because it was signed with an ‘X’ and the settlor’s initials. Murano argues that the Trust was a document involving or affecting the transfer of real property subject to 16 O.S. 2011 § 34, which provides that: When real estate is conveyed or encumbered by an instrument in writing by a person who cannot write his or her name, the person shall execute the same by a mark, and the person’s name shall be written near the mark by one of two persons who saw the mark made, who shall write their names on the instrument as witnesses. In case the instrument is acknowledged, then the officer taking the acknowledgment shall, in addition to the other necessary recitals in the acknowledgment, state that the grantor executed the instrument, by inserting in the form of acknowledgment provided in Section 33 of this title by individuals after the words “foregoing instrument” the words “by the person’s mark, in my presence and in the presence of __________ and __________ as witnesses”.
The Trust amendments in this case, signed with a ‘X’ and initials, were witnessed by others, but not attested to in the form required by 12 O.S. § 34. The threshold question, therefore, is whether § 34 applies in this case, i.e., was real estate “conveyed or encumbered” by the Trust amendments? Analyzing reported cases pursuant to § 34, we find no case applying this statute to a trust amendment.1 We must therefore turn to first principles. The Trust at issue was revocable during the life of the settlor and created no immediate or vested future right in the beneficiaries. Inherently, the amendment “conveyed” no property from Nancy Murano to the beneficiaries under those conditions. Nor did the amendments create any encumbrance upon the real estate that did not previously exist.2 We find that the Trust amendment in this case was not a “conveyance or encumbrance” of real property, and was not subject to § 34.

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CONCLUSION: This case is teaching that you need an experienced attorney helping you with your estate planning.

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An experienced attorney, such as Brent D. Coldiron, would have made it clear that there was an intent to disinherit in both the will and the trust.  Why depend on a court to end up with the right decision.  Let your attorney make sure it happens.  Brent D. Coldiron knows the law.  He knows what to do.  You can reach Brent D. Coldiron at (405) 478-5655 or 737-2244.  His offices are at 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City.

Oklahoma probate law defines undue influence as that which compels the testator to do that which is against his will, from fear, the desire of peace, or some feeling which he is unable to resist. The influence must be undue, in order to vitiate the will, because influences of one kind or another surround every rational being, and operate necessarily in determining one’s course of conduct under every relation of life. Within due and reasonable limits such influence affords no ground of legal objection.

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Undue influence necessary to set aside a will must be a present restraint, fraud or undue influence, operating upon the testator’s mind in the very act of making the will, and affecting its execution or the disposition it makes, as the undue influence must dominate testator at the time of making the will and contemporaneous threats have this effect.

Influence based on affection for members of a family is not undue influence, as such influence is natural and proper and in a different class from that which a stranger may obtain.

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Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. Mere general influence, not brought to bear on the testamentary act, is not undue influence; but in order to constitute undue influence, it must be used directly to procure the will, and must amount to coercion destroying the free agency of the testator. Mere suspicion that undue influence was brought to bear is not sufficient to justify the setting aside of the will.

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Based on the above summary of how an Oklahoma probate court will consider evidence of undue influence, it requires good proof.  I once had a case where we were able to prove undue influence.  An attorney-in-fact sequestered the will maker in her home.  Then locked the relatives out.  And had the will signed under those circumstances.  The court set the will aside for undue influence.

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Brent Coldiron is a practicing attorney will offices in Edmond/Oklahoma City and Midwest City.  Give him a call if you have questions.  His number is (405) 478-5655 or 737-2244.

Any person who makes a will in Oklahoma is legally presumed to have been legally competent to make the will.

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The will stated as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being $ 1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name, this 17th day of April, A. D. 1920.

“Emanuel J. Kerchner, Testator.

“Signed. Published and Declared, by the said Emanuel J. Kerchner as his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto; and at the time we know the said Emanuel J. Kerchner to be of sound and disposing mind and memory.

“Witness Our Hands, the day and date above given.

“Z. H. Tibbetts,

“W. H. Harris,

“Witnesses.”

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The question before the probate court was the maker of the will at the time he executed his last will and testament competent to make the will?

The probate court considered the habit and capacity of the will maker to actively transact his ordinary business and make his own contracts.  The appellant court determined that the actual time and place to be when the will was signed was the point in time in which a will maker must be competent.

The opinion of the will maker’s doctor as to his mental condition would be considered by the court.

The probate court said that legal competency to make a will consisted of the following:

“The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapse of memory, mere decay or feebleness of memory, or absent-mindedness, ought not to invalidate a will, unless amounting, under our general rule, to a mental incapacity to collect the particulars essential to a just testamentary disposition.  It is a general rule that testamentary capacity consists in the ability to understand the nature of his property, the natural objects of his bounty, and the nature of the testamentary act, and it is sometimes said that it is sufficient if he knows of what his estate consists and the persons to whom he desires to give it.  This rule does not mean that all these things must be known by the testator minutely, but if he knows them in a general way, this is enough. ”

 

The probate court is not to hold being old against anyone who makes a will.  The mere fact that a person is aged person in no way operates against the validity of the will.

A will going to probate carries this strong presumption.  There is a presumption of sanity that the person who made the will was legally competent.  It is for everyone who makes a will.  The burden of proving unsoundness of mind in a will contest rests on the contestant.

 

The court held: An examination of all the testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions.

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Brent Coldiron practices law at 1800 East Memorial Road, Suite 106 in Edmond/Oklahoma City and 2801 Parklawn Drive, Suite 503 in Midwest City.  Brent can be reached at (405) 478-5655 or 737-2244.

The following probate case illustrates how an adopted child was not entitled to inherit an Osage Indian Headright.   This is the dispositive wording in the will: “I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”  The adopted child was adopted by a deceased grandchild of the deceased.  The adopted child wanted to step into the grandchild’s shoes and inherit from the grandmother.  The “heirs of my body” language indicated that there was not an intent to include the adopted child.

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To avoid problems like this good attorneys usually include a definition of children which will include adopted children.  Sometimes definitions are limited to children adopted before the age of 21, or earlier.

Good probate, will and trust attorneys may also include in the definition of children whether the child is born inside or outside of wedlock. Sometimes wording is used which intentionally omits any child or person who claims to be a pretermitted (forgotten or unknown) child or descendant of a child who may make a claim to the estate.

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Ware’s estate is an interesting case.

 

IN RE WARE’S ESTATE
1958 OK 263
348 P.2d 176
Case Number: 37784
Decided: 11/05/1958
Supreme Court of Oklahoma

Cite as: 1958 OK 263, 348 P.2d 176
IN THE MATTER OF THE ESTATE OF NANCY WARE, DECEASED. BILLIE JOE YOUNG FLETCHER ROGERS, PLAINTIFF IN ERROR,
v.
NANCY ROGERS RECTOR, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF NANCY WARE, DECEASED, DEFENDANTS IN ERROR.

Syllabus by the Court.

¶0 Where a member of the Osage Tribe of Indians willed the income from the Osage Indian headrights she owned, to her two grandchildren, with the provision in paragraph ‘III’ of her will that upon the death of either ‘* * * leaving a child or children surviving * * *’, his or her share ‘* * * shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of any said grandchildren by right of representation * * *’, in view of said paragraph, the character of the property involved, and the circumstances in evidence, the judgment of the trial court holding that a certain adopted child of the testatrix’ deceased grandchild was not a beneficiary under said provision, was neither contrary to law nor to the evidence.

Appeal from the District Court of Osage County; Jesse J. Worten, Judge.

In proceedings by the administratrix with the will annexed of the estate of Nancy Ware, deceased Osage Indian allottee, in connection with disposition of said estate, the county court determined that Billie Joe Young Fletcher Rogers, an adopted child of the testatrix’ deceased grandchild, was not entitled to any interest in the headrights left by testatrix. After Rogers had appealed to the district court, which court’s judgment was also against him, he appealed to this court. Affirmed.

Shoemake & Briggs, Pawhuska, Gordon L. Patten, Tulsa, for plaintiff in error.

F.W. Files, Pawhuska, for defendants in error.

BLACKBIRD, Justice.

¶1 This appeal involves a determination of the proper devolution of one-half of the 1 2/3 Osage Indian headrights owned, at the time of her death, by one Nancy Ware, who was enrolled opposite Roll No. 1808, and received an allotment, as a member of the Osage Tribe of Indians. Said allottee died in January, 1933, while a resident of Osage County, and leaving a will executed during the same month of the previous year, but not approved in the Office of the Secretary of the Interior until June 27, 1933.

¶2 Under the terms of said will, and the decree of the county court entered June 11, 1934, in the proceedings to admit same to probate, the testatrix’ grandchildren, Nancy Rogers Big Elk and Thomas Rogers, were paid the income from said Osage headrights in proportions of one-half to each, until the death of the latter in December, 1953, which necessitated a determination as to what disposition was to be made, in accordance with testatrix’ will, of that portion of the headrights from which he had been receiving income. The matter was rendered controversial by the fact that, in 1942, the said Thomas Rogers had adopted, as his son, Billie Joe Young Fletcher Rogers, the son (by a former marriage) of his wife, Grace, whom he married in 1937, more than four years after the testatrix’ death.

¶3 The portion of the testatrix’ will governing the devolution of the headrights involved herein is paragraph “III”, which reads as follows:

“I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”

¶4 After her appointment, in 1956, as administratrix with the will annexed of the estate of the testatrix, her deceased grandmother, Nancy Rogers, now Rector, who is one and the same as “Nancy Rogers Big Elk” and is the “surviving grandchild” within the nomenclature of the above quoted will, filed in the probate proceedings pertaining to said estate, a pleading entitled: “Final Account, Petition To Construe Will of Deceased and Judicially Determine the Death of Thos. Rogers, also known as `Thomas L. Rogers, Jr.,’ and For a Decree of Distribution.”

¶5 At the hearing held on said pleading in the county court, the pivotal question was: Whether Billie Joe Young Fletcher Rogers, being an adopted, rather than a natural, child of the testatrix’ deceased grandchild, Thomas Rogers, was a “child” of a grandchild of the testatrix within the meaning of that term, and equivalent expressions, if any, used in the above quoted third paragraph of her will.

¶6 The county court determined the question against the adopted boy, Billie Rogers, and decreed that the income from the headright interest (including that which had accrued since the death of Thomas Rogers) “be paid to Nancy Rogers Rector during her lifetime.” Upon appeal to, and trial de novo by, the district court, herein referred to as the trial court, said court entered a judgment, in accordance with findings of fact and conclusions of law, which, in every material respect, concurred with the county court’s decree. Thereafter, Billie Rogers, hereinafter referred to as appellant, perfected the present appeal to this court. Nancy Rogers Rector appearing here in her capacity as an individual, as well as administratrix, will be hereinafter referred to as appellee.

¶7 In his argument for reversal, the appellant attacks both the trial court’s findings of fact and conclusions of law, but treats particularly of said court’s first three conclusions of law, which were in words and figures as follows:

“1. That the adoption of a child under the Oklahoma law only fixes the status of such adopted child insofar as his adoptive parent is concerned and confers upon such adopted child only the legal consequence of the adopted child for the purpose of inheritance or other rights of such child from his adoptive parent.

“2. That under the law of Oklahoma the right of an adopted child to succeed to property of kindred of the adoptive parent, the claimant, under Title 10 O.S.A. [§§] 51 and 52 , is expressly excluded from taking property limited to the body, or bodies, of the parent by adoption and from lineal or collateral kindred of such adoptive parent by right of representation.

“3. That title 25 O.S.A., Section 7 , has been construed by the Supreme Court of the State of Oklahoma in the case of In re Captain’s Estate, in which the Court said:

“`Since this section refers to the adopted person as a “child” and Section 27, O.S. 1931, 25 Okl.St.Ann. Sec. 7 , states that, “the term children includes children by birth and by adoption”, it is apparent that said section was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents “by right of representation”.'”

¶8 Appellant attributes the claimed errors in the trial court’s judgment to his failure to recognize that the case of In re Captain’s Estate, 191 Okl. 463, 130 P.2d 1002, (which so obviously influenced said judgment) dealt with an intestacy situation where statutes are usually the final arbiter of the descent and distribution, rather than a testacy situation like the present one, where the intention of the testator governs. Pursuing this premise, appellant attempts (without evidence of the testatrix’ intention, other than the words of the will itself) to show that by omitting to preface the terms “child” and “children” with the word “natural” in her will, the testatrix understood said terms as including adopted children (by statute) in Oklahoma, and that her use of other terms such as “living issue” and “heirs of my body” (which appellant concedes do not include adopted children) shows that she recognized the distinction between such terms.

¶9 Generally speaking, of course, statutes do not govern, or even influence, the matter of who may be beneficiaries of estates under wills, as they do the matter of who shall be beneficiaries of estates in intestate succession. Accordingly, a testator or testatrix may, by will, include among the beneficiaries of his or her estate, persons who have neither a natural nor legal claim thereon; and, when such intention is clear, it matters not that such persons would have no claim to any part of the estate under the laws of succession or descent and distribution. It is only where the words of the will leave the testator’s intention in doubt, that such statutes, or those that restrict the devolution of such estates, or those bearing upon the relationship of persons such as the testatrix and the claimant, may be entitled to consideration. But, said statutes are considered – not because they control the devolution of the estate directly – but because they may furnish a clue to arriving at the testator’s intention, in view of the presumption, usually indulged, that he was cognizant of their existence and efficacy, when the will was drafted and executed. Thus, it is only to the extent that such statutes, federal and state, are applicable to appellant’s relationship to the testatrix, or to the devolution of her estate, that they may constitute any foundation, in reason or logic, for his contention that the word “child”, as used in the testatrix’ will, includes him. And, in determining such statutes’ applicability, we may look to cases involving intestate estates, as well as those involving testate estates, where the statutory construction there announced is a general one and does not hinge upon testacy or intestacy. Clearly, In re Captain’s Estate, supra, is such a case. In our opinion in that case we said (at page 1005 of 130 P.2d) that Tit. 10, O.S. 1951, sec. 51 (O.S. 1931, sec. 1711) “relates itself only to the general relationship * * * between parent and child (and) other than the right of inheritance.” Following this statement in that opinion, we demonstrated why decisions from other jurisdictions upholding an adopted child’s right to inherit from kindred of his adoptive parents, are neither controlling nor persuasive. We there noted in sec. 52, (O.S. 1931, sec. 1712) of the same Title, reference to the word “child”, which, under Tit. 25, O.S. 1951, sec. 7 , may mean an adopted child, as well as a natural child, but concluded that “said section (52) was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents `by right of representation’.” In reaching this conclusion we there said (at page 1006 of 130 P.2d):

“The position taken by the appellant that the provision in Section 1712 denying the adopted child the right to inherit from the lineal or collateral kindred of the adoptive parents by right of representation constitutes implied legislative authority for such child to inherit directly in his own right as a natural child from such lineal or collateral kindred, is untenable. This section deals exclusively with the personal rights and duties existing between the adopted child and the adoptive parents. It grants full inheritance rights to the child so far as the property of the parents is concerned, but denies the child the right to take property limited to their bodies and the right to participate as the parents’ representative in any of the estates of their kindred by blood, thus evincing a legislative intent and purpose to keep the property of the family, other than that of the adoptive parents, in the family, and away from the adopted child. Nowhere is there an express provision that the child shall inherit from any one other than the adoptive parents.” (Emphasis ours).

¶10 Here, if there were any doubt from the provisions of paragraph III of the will as a whole, including those containing the terms “heirs of my body” and “right of representation”, that it was the intention of the testatrix to keep the devolution of her headrights in her own blood line, we think it is readily dispelled upon consideration of the inheritance restrictions placed by Congress upon such interests in Osage tribal property. In this connection, see the Act of Congress of June 28, 1906 (34 Stat. 539), as amended by the Act of Congress of March 3, 1921 (41 Stat. 1249-1251), the Act of Congress of April 18, 1912 (37 Stat. 86-88) cited in the Secretary of the Interior’s endorsed approval on the will in question, as authority therefor; and, more particularly Section 7 of the Act of Congress of February 27, 1925 (43 Stat. 1008-11), as amended by the Act of Congress of September 1, 1950 (64 Stat. 572) dealt with in Ware v. Beach, Okl., 322 P.2d 635. The ultimate purpose of the last two Congressional Acts was to prevent heirs, except those of Indian blood, from inheriting from persons having one-half or more Indian blood of the Osage Tribe of Indians “any right, title, or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe; * * *”. Upon inquiry by this court, counsel say that there is no question of federal inheritance restrictions in this case. Assuming, without deciding, that Billie Rogers meets the qualifications imposed by Congress on the inheritance of Osage Indian headrights, the question then arises: How could those who drafted and executed the will in question be certain that any child the testatrix’ grandchild might adopt would meet such qualifications? Therefore, is it not reasonable to assume that in making testamentary disposition of such restricted Indian property it would be done in such manner as to leave no question as to its efficacy? And, would not keeping headrights in the testatrix’ blood line be the best way of being certain that said property would be inherited by heirs who could establish Indian blood (under the Federal Acts, supra) by their enrollment record or by the enrollment record of a lineal Indian ancestor? We think all of these questions must be answered in the affirmative, and, in view of the presumption that the testatrix knew of the inheritance restrictions on such property, such answers furnish substantial insight as to what she intended in her will’s reference to a child or children of a grandchild or grandchildren. Upon consideration of the foregoing, and, in the absence of any evidence to the contrary, it can only be concluded that such references were intended to exclude adopted children. It therefore follows, that the judgment of the trial court must be, and is hereby affirmed.

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The following will was filed for probate. The trial court found that the testator was incompetent. The Supreme Court reversed the trial court and found that the testator was competent.

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Here is an excerpt from the opinion of the court: “An examination of all this testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions. We are particularly impressed with that testimony of George L. Cook, who drew the will; of Dr. W. H. Harris, one of the attesting witnesses, and of L. E. McClure, the executor. It appears that upon the recommendation of a friend, who was in no wise interested, the deceased went to Cook and stated to him that he desired to have his will drawn. Cook had known Emanuel Kerchner for a number of years, but had not been connected with him in any way, and as far as the testimony goes had not attended to any business for him. Emanuel Kerchner came into Cook’s office on the 17th day of April, 1920, by himself. It does not appear that any person came to town with him. He stated plainly and with clearness to Mr. Cook the property which he had and the disposition which he desired to make of it by will. He acted and talked normally, talked with Cook about his relations. Cook took down with pencil the instructions given him as to the provisions of the will, read them over to Kerchner and asked him if they met his approval. He said they were exactly what he wanted; stated that he held a note against Nick Kerchner and desired to give him that note; that Harry Burns had treated him more kindly than his own son. Cook then drew the will on the typewriter, read it over to Kerchner. It was satisfactory. Dr. W. H. Harris, the physician who knew Kerchner well, and had treated him for many years, was called as one witness to the will, and Dr. Tibbets as another witness. Both of those men had offices in the same building where the will was drawn. They were requested by Kerchner to witness the will when he had stated to them that it was his last will and testament. They did so, and Kerchner then took the will and went away.

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¶17 Dr. W. H. Harris, one of the attesting witnesses, had been acquainted with Kerchner for 25 years. Had seen his frequently during that time and had acted as his physician. He testified that his mental condition did not change from the time he first became acquainted with him up to the time he saw him a short time before his death, and Dr. Harris attended him in his last illness. L. E. McClure, the executor and a banker, had known Kerchner since 1912. Kerchner had kept his papers in that bank. Kerchner brought his will to McClure in the bank on the date it was executed, told him that it was his will and he wanted it put away for safekeeping. McClure put the will in Kerchner’s safety box with the rest of his papers and after Kerchner’s death broke the seal on the envelope, brought the will to Alva and turned it over to the county judge. McClure was acquainted with Kerchner in a business way. Deceased Kerchner had kept an account at McClure’s bank for years and always transacted his own business without the assistance of any one. When he brought the will to McClure there was no one with him, He transacted business with the bank just the same afterwards as before the will was deposited there. McClure says that the deceased was entirely capable of carrying on his business, understood the nature of all business transactions, and the value and extent of his property, and that he noticed no difference in the deceased from the time he first became acquainted with him until the last time he saw him, shortly before his death.

¶18 The substance of this testimony as to the normal condition of the mind of Emanuel Kerchner is sustained by the testimony of many witnesses, all of whom had thorough opportunity to judge of his condition during many years and up to the time of the making of his will and up to the time of his death. All this testimony has convinced us that the testator, Kerchner, was at the time of making this will of sound mind, and the testimony introduced by the protestant does not, in our judgment, when considered in its most favorable aspects, reach the point where it raises in our mind any serious doubt as to the competency of the testator. We therefore find that the judgment of the trial court upon this branch of the case was not sustained by sufficient evidence and was against the great weight of the evidence.”

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The will in question is as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being
$1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name…”

The Supreme Court reversed the trial court and found that the testator was competent. It is important that the appellant court noted the important badges of competency of an individual to make a will. These are: (1) he knew well the property which he possessed; (2) the indebtedness due him; (3) his relation to his kindred; (4) his duty toward such kindred; (5) he knew the diposition which he desired to make of his property; (6) the will which he executed expressed his intentions.

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The Supreme Court affirmed the following legal principles in reaching its decision:

A testator has a sound mind for testamentary purposes when he can understand and carry in mind, in a general way, the nature and situation of his property and his relations to those who naturally have some claim to his remembrance and to those in whom and the things in which he has been chiefly interested.

The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapses of memory, mere decay or feebleness of memory or absent mindedness, ought not to invalidate a will unless amounting under our general rule to a mental incapacity to collect the particulars essential to a just testamentary disposition.

A presumption of sanity goes with everyone, and the burden of proving unsoundness of mind in a will contest rests on the contestant.

From this case certain “Badges of Competency” are evident. First, there is an overall presumption that a will properly executed (you need an attorney to make sure this is done correctly) was competently executed. There is a presumption of sanity, or competency. The burden to prove that someone was not competent is on the objector to the will.

Second, no one has to be perfect mentally to make a valid will. A good enough memory is OK. It does not have to perfect. Forgetfulness is allowed. Did the will maker understand what he or she owned. Who his or her relatives were and who would be his or her natural objects of his love and affection.

It is good enough to know in a general way what is owned, and the relationship with the natural objects of bounty or close family and friends. The Supreme Court stated these five “Badges of Competency” as follows: (1) To know in a general way the property owned; (2) To know in a general way his or her own business affairs; (3) To remember his or her relationship with close family and friends; (4) To understand that he or she has a duty toward close family; (5) To know and understand what he or she wanted to happen with the estate after death.

Brent has been helping his clients since 1976.  He knows his way around the courtroom, but also how to keep his clients out of court.  He is an expert with wills, trusts, probate, living wills, advance directives, guardianships, powers of attorney and solving many problems that affect us all.  Brent is an expert with nursing home Medicaid qualification.  He has saved thousands of dollars for his clients who need to qualify for Medicaid.  He knows how to legally protect resources and qualify for Medicaid.  He is experienced in dealing with the Department of Human Resources.  Cal Brent’s office at (405) 478-5655 or 737-2244.  Brent has two offices: 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City.

 

In the case of WELCH v. CROW, 2009 OK 20, 206 P.3d 599 Decided: 03/31/2009 THE SUPREME COURT OF THE STATE OF OKLAHOMADYLAN WELCH and HILLARY found that on April 12, 1995, a mother created her revocable trust and executed a pour-over will. Pour over wills are never intended to be probated, since all of the property is supposed to be owned in the revocable trust.

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The only problem is that the mother had a deceased son who left issue that she didn’t leave anything to in her trust or in her will. Neither the will nor the Trust made any provision for her deceased son’s issue. The grandchildren fought the will and trust. They claimed they were entitled to a share of the Trust as pretermitted heirs or that the Trust was illusory.

The Supreme Court held that: 1) Oklahoma’s pretermitted heirs statute, 84 O.S. 2001 §132, is not applicable to revocable inter vivos trusts; and 2) because the Trust provided for contingent beneficiaries, it was not illusory simply because Neighbors was the sole trustee and the only vested present beneficiary.
The mother her revocable trust and she was the sole trustee and only vested beneficiary during her life. Upon its creation, some of her property was conveyed into the Trust. The terms of the Trust provided that at the time of her death, the successor trustees were to be her daughters, and her son-in-law, collectively, the trustees. After the Trust paid the expenses of the estate, the remaining principal and income were to be distributed to the daughters in equal shares.

The will recognized that the mother had four children, including the one deceased. The son deceased was deceased at the time of the will’s execution. The grandchildren were not referred to in the will. The will provided that at the time of her death, the entirety of her estate was to be distributed to the Trust. This is what a pour-over will usually does, it pours-over into the trust. If the Trust were not in existence at the time of her death, the will provided that her daughters take the entirety of her estate in equal shares. And the will also stated that she was omitting anything for her other living son.

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The trial court found that the omitted issue of her deceased son were her heirs and were pretermitted heirs as defined by 84 O.S. 2001 §132.7.

The grandchildren won with the will, so they then filed a suit contesting the trust. Asking the court to determine that either they had a statutory share in the Trust and were entitled to an accounting by the trustees or, in the alternative, that the Trust was illusory. The trial court ruled against the omitted grandchildren.

The first impression question before the Supreme Court was whether naming a contingent beneficiary satisfies the requirement that a trust may not have the same person as sole trustee and sole beneficiary.
Title 84 O.S. 2001 §132 Does Not Apply To Revocable Inter Vivos Trusts.

The grandchildren argued that as pretermitted heirs, they were entitled to a statutory share in the Trust under 84 O.S. 2001 §132.14 The trust responded that §132 applies only to wills, and not to trusts. The Supreme Court noted that the opinion of In re Estate of Jackson, 2008 OK 83, 194 P.3d 1269, held that §132 “unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts, and that the grandchildren are not entitled to a statutory share in the Trust.

The other first impression question was whether naming a contingent beneficiary satisfies the requirement that a trust may not have the same person as sole trustee and sole beneficiary. In other words, can you make a self-settled trust when you are the sole beneficiary. The Supreme Court held that the right to dispose of property is an inalienable natural right that persists throughout a person’s lifetime, and the right to control disposition of property after death is subject to statutory limitations. And, that Oklahoma law permits an individual to dispose of property at death by trust.

When it is applied to the law of trusts, the so-called “merger doctrine” is the equitable concept that a valid trust must have a separation of the legal estate from the beneficial enjoyment, and that no trust can exist where the same person possesses both.18 Title 60 O.S. 2001 §175.6, without using the term “merger doctrine,” codifies the principle that if a trustor is a beneficiary and the sole trustee, a valid trust also requires a beneficiary other than the trustor.19 Title 60 O.S. 2001 §175.3(K) defines a trust beneficiary as “any person entitled to receive from a trust any benefit of whatsoever kind or character.”

The majority rule is that a trust is not illusory or invalid simply because the interests of its beneficiaries, other than the trustor, are contingent. The Restatement (Third) of Trusts §25, Comment b provides in pertinent part:

(The) validity (of) an inter vivos trust is not affected by the fact that the interests of all beneficiaries other than the settlor do not take effect in possession or enjoyment before the settlor’s death, or that they are contingent or subject to conditions subsequent, including the exercise of a power of revocation, withdrawal, amendment, or appointment reserved to the settlor, whether exercisable during life or by will.

The reporter’s note to Restatement (Third) of Trusts §25, Comment b provides in pertinent part:

(C)ourts regularly and properly find valid trusts where settlors have retained complete control, and where other beneficiaries usually, if drafting is competent, have only future interests that are not only defeasible (by revocation or amendment) but also “contingent” upon surviving the settlor and maybe other events as well. . . .

Seven states have enacted statutes which explicitly provide that a trust which has the same person as sole trustee and sole present beneficiary is not invalid if it provides for a contingent or successor beneficiary. Nineteen states and the District of Columbia have adopted a version of the Uniform Trust Code, which provides at §402(b) that a beneficiary is definite if the beneficiary can be ascertained at the time of the creation of the trust or at some time in the future, subject to the rule against perpetuities. The Uniform Comment to §402(a)(5) provides that the merger doctrine is not applicable to a trust with the same person as sole trustee and sole life interest beneficiary if another person is designated the remainder beneficiary. Two other states, which do not have a statute directly addressing the issue, have adopted the Restatement view in appellate court opinions. While there are a few state court decisions which take a view contrary to the Restatement, each of these decisions has been subsequently overruled by statute. A few other decisions appear to require a present, vested beneficiary other than the sole trustee, but, by using terms like “vested interest subject to divestment” to rename contingent interests, embrace the Restatement view for all practical purposes. Our research has not disclosed a viable case or statute contrary to the Restatement view on this issue.

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The Supreme Court stated that in Thomas v. Bank of Okla., N.A., 1984 OK 41, ¶21, 684 P.2d 553, this Court determined that a revocable inter vivos trust may not be employed to defeat a surviving spouse’s forced share of an estate as provided by 84 O.S. 2001 §44. The Court held that such a trust was illusory as to the surviving spouse and set forth the method of determining the validity of a trust:

(T)he test of the validity of a trust is whether the transfer is real or illusory; that the test is whether the settlor in good faith divested himself of the property ownership or simply made an illusory transfer as a mask for the effective retention of the property.

Here, it is clear that the Trust was not an artifice for the effective retention of Neighbors’ property. Instead, Neighbors employed the common estate-planning device of creating a revocable inter vivos trust and simultaneously executing a pour-over will to provide for her heirs at the time of her death. The Restatement view is persuasive and consistent with the definition of a trust beneficiary found at 60 O.S. 2001 §175.3(K). A trust is not illusory simply because it has the same person as the sole trustee and only vested present beneficiary if it provides for at least a contingent beneficiary.

The Supreme Court held that the Trust was not illusory simply because the mother was the sole trustee and she was the only vested present beneficiary during her life. Because the Trust provided for her daughters as contingent beneficiaries, it was a valid trust.

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IN THE MATTER OF THE ESTATE OF ADAMS, 2004 OK CIV APP 91, 101 P.3d 344
APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA
The decision of the HONORABLE NOAH EWING, JR., TRIAL JUDGE, was AFFIRMED.

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Wanda Belle Adams, the decedent executed a will on July 1, 1996. She was then in declining health but lived until February 8, 2003, at which time she was seventy three. During her later years she needed increasing assistance with her normal life activities. She had never married and had no children. As the result of illness at the age of twelve or thirteen, she found it necessary to use a wheelchair for all her adult life, but was able to work as a public accountant. She was survived by four sisters and three brothers. Another brother predeceased her.

A brother filed his Petition for Letters of Administration and Determination of Heirs on March 12, 2003. He alleged his sister had died intestate. A sister objected alleging that her sister had died with a valid will made on July 1, 1996. It was produced for probate. The will left the Decedent’s home and adjoining land to the sister’s son and daughter-in-law, and the remainder of the estate was to go to the sister. Nothing like getting left out of a will is better to kindle a family fight!

At the hearing the brother argued that his deceased sister “was not competent to execute a will on July 1, 1996.” The two witnesses to the decedent’s will testified at the hearing in support of its validity, as did the beneficiaries of the will. One of the witnesses to the will was the attorney who drafted it, and the other was another attorney.

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The trial court found the will was valid and admitted it to probate. The court concluded the case centered around the issue of testamentary capacity and that the “most complicating factor” was the court’s granting of guardianship over Decedent at approximately the same time as Decedent executed her will. The trial court found the guardianship did not, as a matter of law, preclude Decedent from executing a valid will, and that the testimony of the lawyer who drafted the will was “most convincing” because he had been involved with both execution of the will and application for Decedent’s guardianship.

In probate cases, being of equitable cognizance, the appellant court will examine and weigh the evidence, but we must abide by the presumption that the trial court’s determination is correct unless it is found to be clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Holcomb, 2002 OK 90, 63 P.3d 9. The trial court enjoys deference when it comes to the resolution of conflicting evidence because it had the opportunity to observe the demeanor and conduct of the witnesses. And, the burden of persuasion on the issue of testamentary capacity lies with the party contesting the validity of the will. In re Estate of Maheras, 1995 OK 40, 897 P.2d 268.

In Estate of Holcomb, at, 13, the Supreme Court defined testamentary capacity as follows:

Testamentary capacity exists when a person possesses, in a general way, the ability to appreciate the character and extent of the devised property, understands the nature of the relationship between himself and the natural objects of his bounty, and apprehends the nature and effect of the testamentary act. … In adjudging a decedent’s testamentary capacity, it is appropriate for the trial tribunal to consider evidence of the testator’s mental capacity, appearance, conduct, habits and conversation both before and after the will’s execution to the extent these factors are relevant to the maker’s mental condition at the time the will was executed.

¶8 Appellant concedes the contested will was executed with the requisite formalities dictated by 84 O.S. 1991 § 55, but in his Brief in Chief contends the will is invalid because of noncompliance with 84 O.S. Supp. 1992 § 41. This latter section provides that one subject to guardianship or conservatorship may lawfully dispose of his or her estate by will, but requires the will to be subscribed and acknowledged in the presence of a judge of the district court. This contention fails because Appellant did not raise it before the trial court and is barred from raising it for the first time on appeal. Marlin Oil Corporation v. Barby Energy Corporation, 2002 OK CIV APP 92, 55 P.3d 446.1

A long standing rule of law in Oklahoma is that a presumption of want of testamentary capacity does not arise from the fact that the maker of a will may have been under guardianship at the time of the making of the will. In re Nitey’s Estate, 1935 OK 1218, 175 Okla. 389, 53 P.2d 215. Thus, incompetency or impairment which may support guardianship does not, as a matter of law, mean that the subject of the guardianship is unable to still make a will. The guardianship is some evidence for consideration of the court in determining the condition of Decedent’s mind at the time the will was signed.

The court also stated that being unable to manage one’s own estate was not inconsistent with testamentary capacity. That testamentary capacity is not identical to business capacity and a person subject to a guardianship is not necessarily a person of unsound mind. Tthat a person may not then have sufficient mind and vigor of intellect to transact business generally and make contracts, yet be competent to make a will. The presumption is that every person is sane.

The Order Appointing Guardians over the deceased sister stated, that she was “impaired by reason of mental confusion and physical limitations, resulting in an inability to receive and evaluate information effectively, meet the essential requirements for her physical health and safety, and manage her financial resources.” The appellant court stated that there was nothing in the finding, which was entered a month after the Decedent executed her will, which would necessarily preclude a determination of testamentary capacity.

The court also commented on the fact that the will left everything to one sister and her child and spouse. That the Decedent’s will was “an unnatural will in its disposition of her property.” Because she left the bulk of her estate to one sister only and wholly omitted her remaining six brothers and sisters and the children of her deceased brother. An unnatural disposition of property may be considered in determining his testamentary capacity. But the appellant court stated that leaving everything to one sibling is not an unnatural will.

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OLD FAITHFUL GEYSER, YELLOWSTONE, 2015. LIKE OLD FAITHFUL SOMEDAY YOUR WILL IS GOING TO BE READ. MAKE SURE IT IS DOES WHAT YOU WANT IT TO WHEN YOU DIE.

The court went on to observe that no presumption of testamentary incapacity arises because a will gives property to persons other than those “who are natural objects of the testator’s bounty”, and if a testator is possessed of testamentary capacity, he may “give his property entirely to strangers.” In re Newkirk’s Estate, 1969 OK 93, 456 P.2d 104. The Oklahoma Supreme Court has held “[i]t is natural for a person to make provisions in his will for those who were particularly close and helpful to him during his lifetime, and more especially, to those within his own family.” In re Lacy’s Estate, 1967 OK 123, 431 P.2d 366.

The sister proponent of the will testified she had a long and close relationship with Decedent and that she was the “primary person who took her deceased sister to where she needed to go” until her child and spouse moved next door to Decedent. At Decedent’s request they moved a house trailer onto her property in 1985. The Decedent helped pay off the trailer and they remained there for twelve years.

The court went on to discuss the testimony of the other witnesses, and concluded saying that there is no dispute that Decedent did not enjoy good health at the time she executed her will. However, advanced age or physical infirmity alone do not render one incapacitated to make a will. Rose v. Foster, 1955 OK 242, 288 P.2d 745. The extent of Decedent’s mental impairment is contested, but the trial court’s finding that she possessed testamentary capacity at the time she executed her will is not clearly against the weight of the evidence. The trial court’s order admitting Decedent’s will to probate is accordingly AFFIRMED.

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BRENT HAS BEEN HELPING CLIENTS WITH LEGAL PROBLEMS FOR OVER 39 YEARS. HE HAS A VERY GOOD REPUTATION. YOU CAN TRUST HIM TO KNOW WHAT TO DO.

Brent D. Coldiron is an experienced will, probate, guardianship, and living trust attorney. He understands the rules for capacity to make a will. He knows what to do. He has over 39 years experience. Call Brent at (405) 478-5655.

A Probate, Will and the Cy Pres Doctrine

Oklahoma is a common law state that has adopted the cy pres doctrine. Cy pres is defined as a “doctrine that equity will, when a charity is originally or later becomes impossible, inexpedient, or impracticable of fulfillment, substitute another charitable … Continue reading →