Question

Hearing that you are the greatest wills and estates lawyer in the country, Mary Jane Watson came to your office today to discuss the estate of her deceased husband, Peter Parker, who died of a spider bite on June 25, 2020.

Parker had written a will in June 2010, which in relevant part reads as follows: Disposition of Estate

A. I leave my comic book collection to my beloved wife, Mary Jane Watson. If Mary Jane predeceases me, I leave the collection to the Future Foundation, a 501(c)(3) charitable organization.

B. I leave $10,000 to my wonderful friend, Ned Leeds. C. I leave $40,000 to my siblings, share and share alike.

All the rest, residue, and remainder I leave to my best friend, Natasha Romanoff, and my Aunt May.

Parker had been having an affair with his best friend Natasha Romanoff, since 2009, and in September of 2016, Natasha died giving birth to her daughter, Anna May. Anna May is Peter Parker’s daughter, as well. In 2013, Peter had written a letter in his own handwriting to Natasha saying, “Natasha, everything I own is yours.” Peter signed the letter, and it was found with the 2010 will, but it was torn into two pieces.

Peter had four siblings when the will was executed but only his sister Sarah survived him. All siblings were married and have surviving children. Aunt May predeceased Peter, but left a son, Frankie. Anna May survived Peter.

1. Please explain to Mary Jane who will receive what from Peter’s estate, and why if:
The jurisdiction is a pure per stirpes jurisdiction, and does not allow a residue of a residue, but does allow holographic wills. Furthermore, the jurisdiction’s anti-lapse statute applies to grandparents, and lineal descendants of grandparents.

2. If Mary Jane is not happy with her share of the estate, what options does she have? What challenges can she bring and how likely is she to prevail?

3. How might your answer change if Ned Leeds served as a witness to the 2010 will?

Answer 1

The jurisdiction is per stirpes which means that all descendants of Peter must be included in the will proceeds.

Not allowing residue of a residue means that if one party of two who are supposed to get the residue and remainder of estate is deceased, then the other party will be the beneficiary of all of the residue and remainder portion of estate.

Anti-lapse statutes ensure that bequests made to family members are carried forward to their descendants in case they pre-decease the will maker.

Holographic wills do not need to be notarised or witnessed, they only need to contain the maker's (Peter) signature. Holographic wills like regular wills must be explicit about named beneficiaries and receipt of assets (Kagan, 2020). The letter from Peter to Natasha will not hold up in court due to its lack of details and therefore will likely be thrown out. That makes the will made in 2010 the last will and testament.

1. As per the current will,

- Mary Jane gets the comic book collection

- Ned Leeds gets 10,000

- Frankie receives all of the residue and remainder of the estate (anti-lapse as Frankie is the lineal descendant of Peter's grandparents and also residue of a residue)

- Peter's sister Sarah will receive 10,000.

- His siblings' children will receive their parents' share - 1/4 of the 40,000 (e.g. peter's brother's share of 10,000 will be distributed among his children)

As Natasha is not a lineal member, her share does not pass to Anna May but to Frank. If there was no anti-lapse statute, then Natasha's portion would revert back to Peter's estate. (Redsteer, 2020)

Anna May can contest the will by proving paternity (DNA testing). She would need to do so within 4 years of Peter's death else the statute of limitations will expire. A non-marital child or child born out of wedlock can still inherit if paternity is conclusively proven. (Nacol Law Firm, 2020)

2. Laws in several states prevent people from disinheriting a surviving spouse and child, as Peter's will effectively does. Mary Jane therefore cannot receive just the comic book collection as per the will. She can contest the will to be awarded a portion or percentage of the estate. She can claim 50,000 or 1/3 of the estate whichever is greater - post all administrative and other expenses being paid - , under Estates, Powers and Trusts Law section 5.1. (Findlaw, 2020). Legally, she cannot be excluded and therefore stands a good chance of winning her suit against the estate.

3. Most states require that beneficiaries not function as witnesses. If that law applies then Ned Leeds gift is void and will revert back to the estate. It will go to Frankie as per the original will. (Randolph, 2020)

References :

Findlaw. (2020) New York Consolidated Laws, Estates, Powers and Trusts Law - EPT § 5-1.1-A Right of election by surviving spouse.

Kagan, Julia (2020) Holographic Will. Investopedia.

Nacol law firm (2020) The Unknown Descendant that May Inherit?

Randolph, Mary (2020) The Witness Requirement to Execute a Will. All Law.

Redsteer, Andrine (2020). Legal Recourse if Left out of a Will as a Daughter. Legalbeagle.