Note: Putnam held for new spouse, finding that the children are not to be given creditor status when it would contravene interest of surviving spouse great departure from contract – law HYPO #5: Assume W dies and H continues to work and wins the lottery. H then marries new wife. Does the contract not to revoke the will (and the original will between H and W) apply only to assets as they were at time of death, or the entire estate at death? W’s H’s We assets in time at first death. Agreement don’t freeze spouse’s applies to all assets, no matter when they were acquired, that existed at time of second death spouse’s Rationale: H can consume those assets he is not expected to save – those assets BUT if expenses of spending assets become too extravagant, you open the door to third party children beneficiaries from suing for excessive expenditures and breach of contract. CAPACITY AND CONTENTS RULE: One must have capacity in order to make a will. Section 6100: Must be 18 or older and of sound mind. A conservator may make a will for the conservatee if the conservator has been authorized by court order. ELEMENTS: Must be capable of knowing and understanding in a general way: The nature and extent of property The natural objects of his or her bounty The disposition that he or she is making of that property Must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property. So doesn't have to know exactly what you have but must be capable of understanding. Capacity is presumed and the BOP is on the person saying that capacity is lacking to prove. Threshold: 1) fundamental right to marry=low; 2) testamentary capacity=middle; 3) contract capacity=highest In re Estate Wright’s Facts: T left property to unmarried friend. There was all sorts of evidence saying he was incapacitated, like being crazy to kids, and yelling at random people. Also, attesting witnesses said he was a looney. Court says if you thought he was a looney, why did you act as witnesses? He did give some property to daughter; court says no evidence that he did not appreciate his relations and obligation sto others, or that he was no mindful of the property that he possessed.
Note: Putnam held for new spouse, finding that the children are not to be given creditor status when it would contravene interest of surviving spouse – great departure from contract law HYPO #5: Assume W dies and H continues to work and wins the lottery. H then marries new wife. Does the contract not to revoke the will (and the original will between H and W) apply only to assets as they were at time of W’s death, or the entire estate at H’s death? We don’t freeze assets in time at first spouse’s death. Agreement applies to all assets, no matter when they were acquired, that existed at time of second spouse’s death Rationale: H can consume those assets – he is not expected to save those assets BUT if expenses of spending assets become too extravagant, you open the door to third party children beneficiaries from suing for excessive expenditures and breach of contract. CAPACITY AND CONTENTS RULE: One must have capacity in order to make a will. Section 6100: Must be 18 or older and of sound mind. A conservator may make a will for the conservatee if the conservator has been authorized by court order. ELEMENTS: Must be capable of knowing and understanding in a general way: The nature and extent of property The natural objects of his or her bounty The disposition that he or she is making of that property Must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property. So doesn't have to know exactly what you have but must be capable of understanding. Capacity is presumed and the BOP is on the person saying that capacity is lacking to prove. Threshold: 1) fundamental right to marry=low; 2) testamentary capacity=middle; 3) contract capacity=highest In re Wright’s Estate Facts: T left property to unmarried friend. There was all sorts of evidence saying he was incapacitated, like being crazy to kids, and yelling at random people. Also, attesting witnesses said he was a looney. Court says if you thought he was a looney, why did you act as witnesses? He did give some property to daughter; court says no evidence that he did not appreciate his relations and obligation sto others, or that he was no mindful of the property that he possessed.