| Lecture 10 |
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10.0 Components of Will/Contract to Make Will 10.1 Incorporation By Reference "The terms of any writing which is in existence when a will or trust instrument is executed, including but not limited to a statement of administrative provisions and fiduciary powers recorded in a record office of this State, may be incorporated into the will or trust instrument by reference to it to the extent the language of the will or trust instrument manifests an intent to do so and describes the writing sufficiently to permit its identification." Md. Code Ann., Est. & Trusts § 4-107. This provision mirrors the Uniform Probate Code treatment. See Unif. Probate Code § 2-510. Arguably, a pourover will6 directing assets to an inter vivos trust would be an example of the use of incorporation by reference. Section 4-411 specifically provides for legacies to a revocable trust. This cures one of the problematic aspects of the use of revocable trusts with pourover wills, namely the modification for the revocable trust from time to time without a concurrent modification of the will. Arguably, this may offend the requirement in § 4-107 that the writing "is in existence when the will...is executed." Section 4-411 contains curative provisions: "The legacy is valid even if the trust was amended or modified after the will was executed, and the legacy shall be given effect in accordance with the terms of the trust as they appear in writing on the date of death of the testator, including any amendment or modification." The standard incorporation by reference statute is held not to offend the requirement that wills must be executed with certain formality. These formalities are deemed to be important as a safeguard against fraud, undue influence or attempted disposition by an incompetent. A rule providing that the document incorporated by reference be in existence when the will is executed effectively provides that an ancillary document be acknowledged under the formalities of wills statute. Section 4-411, on the other hand, permits the ancillary document to be changed from time to time without benefit of the protective elements of the will statute. The formalities required for a revocable trust in Maryland are few; usually trust are simply notarized to enable recordation among state land records if there is real property involved.7 In Florida, as noted previously, state law requires that revocable trusts must have testamentary formalities for any Florida resident when operating as will substitutes.8 Similarly, New York law requires either testamentary formalities for the revocable trust or that it be notarized. The Restatement (Third) of Property: Donative Transfers § 3.6 distinguishes between incorporation by reference and the doctrine of integration. Incorporation by reference allows a writing that is not valid as a will but is in existence when a will is executed to be incorporated by reference into the will if the will manifests an intent to incorporate the writing and such writing is identified with reasonable certainty. Id. The doctrine of integration permits multiple pages to be treated as a single document that needs to be executed only once. Commonly such pages are fastened together, however there is no requirement that the pages of a will be fastened together. Extrinsic evidence may be admissible to show what the testator intended the will to comprise. For example, internal coherence among the various pages (i.e., one sentence overlapping two pages) is also evidence. See Id. at § 3.5. The integration of multiple pages as a single unified will requires that all the pages be present at the execution of the instrument; incorporation by reference simply requires that the other document be in existence and referred to by the will. Section 4-107 departs from Uniform Probate Code formulation by explicitly permitting administrative or fiduciary powers to be recorded in Maryland and incorporated by reference. This practice is followed by several firms within the state and permits a unified approach to fiduciary powers and presumably reduces the size of the instruments. The Maryland Attorney General has opinioned that when administrative provisions and fiduciary powers have been duly recorded and properly incorporated into a will, those recorded provisions need not be re-recorded as part of the probated instrument. 62 Op. Att'y Gen. Md. 909 (1977). 10.2 Acts of Independent Significance "The doctrine of independent significance is universally accepted. Under the doctrine, a provision may validly refer to an external circumstance having significance apart from its effect upon the will. The term 'external circumstance' includes any fact, act, or event existing or occurring outside of the four corners of the will. An external circumstance has independent significance if it is one that would naturally occur or be done for some reason other than the effect it would have on the testamentary disposition...The rationale for the doctrine is that the independent significance of the external circumstance – its lifetime or non-testamentary character – substitutes for attestation even though the circumstance itself is not attested." Restatement (Third) of Prop.: Donative Transfers § 3.7 cmt. The Restatement illustrates this point with examples of a bequest of "the car I will own at my death," a bequest of "the balance on hand in my checking account at my death," a bequest of "the contents of my safe deposit box." Maryland recognizes contracts to make a will. In Ledingham v. Bayless, 218 Md. 108 (1958), the Court of Appeals upheld a written contract to leave a one-half undivided interest in a Howard County farm to the son who was to work on the farm in exchange for the interest. The contract was in the form of a tenancy agreement which specified the sharing of the profits and losses and provided that, in the event of death, the son would be considered the legal owner of one-half of the undivided interest. The facts of the case indicated that the son worked on the farm in accordance with the agreement. After the death of his parents, the tenant son subsequently filed an action against his other siblings for specific performance of the contract. The court held that a testamentary disposition ordered via contract is governed by contract law: "[T]here would seem to be no reason to treat a contract to make a will as governed by principles different in any way than those applied to contracts in general, and most courts take this view. As in other contracts, the parties may agree on the surrender or acquisition of any legal rights as consideration, and the adequacy of such consideration is material only as an element of fraud or undue influence or as one of the factors which a court will take into consideration in determining whether or not to grant specific performance. An agreement to render services which the promisee is not bound to render, independent of the contract, is sufficient consideration." Id. at 115. The issue of specific performance turned on slightly different contractual considerations: "Where a promisor in an agreement to devise property has failed to meet his obligation, in whole or in part, the promisee will be given equitable relief if the contract is fair and reasonable and founded upon sufficient consideration and the parties cannot be restored to their original position. Equity grants relief in the nature of specific performance, holding the heirs, devisees, next-of-kin and personal representatives of the promisor to be trustees holding legal title to the property for the benefit of the promisee." Id.at 117. Maryland also recognizes oral agreements to make a will. In Hanson v. Urner, 206 Md. 324 (1955), the Court of Appeals upheld an oral contract to make a will based on services. In that case, the former daughter-in-law of the decedent claimed that she and the decedent had agreed that the daughter-in-law would take care of the decedent in the decedent's home in exchange for a bequest of the decedent’s commercial real estate to the daughter-in-law. As a general rule, the courts look with disfavor on oral agreements to be left a devise: "It is undeniably true that the courts look with disfavor upon an oral agreement for services which are to be compensated for after the promisor's death by devise or bequest. [Citation omitted]. The rule that the terms of such a contract must be certain and definite and must be affirmatively established by clear and convincing testimony is grounded in wise policy. Especially in a case for the specific performance of a contract to devise real property where it has been devised to someone else, the utmost certainty of proof is required, because… ‘by the enforcement of the contract, the court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, and when he is no longer present to vindicate himself against the imputation of bad faith.' [Citations omitted]. Obviously the contract in such a case cannot be established by evidence of declarations of the testator to mere strangers to the transaction in chance conversations, which the witnesses had no reason to recollect from interest in the subject matter, and which may have been imperfectly heard and inaccurately remembered." Id. at 333. Aside from the policy considerations disfavoring oral contracts to make a will, there are various evidentiary hurdles. For example, the so-called ‘dead man’s statute’ applies to any transaction involving a decedent: "A party to a proceeding by or against a personal representative, heir, devisee, distribute, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the deed or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement." Md. Code Ann., Cts. & Jud. Proc. § 9-116 (LexisNexis 2006). In Hanson, the daughter-in-law brought forth the physician and various intimate friends of the decedent who testified to the declaration of the contract. This testimony was specific as to the terms of the contract, including which commercial property the daughter-in-law was to receive in exchange for the services. The Statute of Frauds, Md. Code Ann., Cts. & Jud. Proc. § 5-901 (LexisNexis 2006), imposes an impediment to the enforcement of an oral contract if the contract relates to the devising of an interest in land.9 As the Court of Appeals has explained: “The law is settled in this State that an oral contract to make a will devising an interest in land is within clause 4 of the fourth section of the Statute of Frauds, and is unenforceable unless the bar of the Statute is removed…While the performance of ordinary services will not take an oral contract out of the statute of frauds if the value of such services can be ascertained with reasonable accuracy in an action at law and adequately compensated by an award of damages, yet where it is impossible to restore the complainant to his original position by any legal remedy, the essential condition of equity jurisdiction in case of part performance is fulfilled, and the rendition of the services will take the oral contract out of the statute." Hanson, 206 Md. at 332. Arguably, however, the court in Hanson presents a muddled interpretation of the law. Presumedly, if the agreement serves as an exchange for real property, the unique character of real property would always make it impossible to restore the injured party by a damage award regardless of whether the value of the services could be identified with accuracy. Generally an oral agreement may be enforced if there is performance by one of the parties to the contract regardless of the Statute of Frauds’ restrictions. Specifically, such performance must not be explainable in any other manner except as evidence that a specific unwritten contract must have existed. Hence, the performance must be such that it proves the terms of the supposed agreement. In order for acts of performance to remove an oral agreement from the Statute of Frauds, the court must "by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position difference from that which, according to their legal rights, they would be in if there were no contract." Mann v. White Marsch Properties, Inc., 321 Md. 111, 117 (1990), quoting Unitas v. Temple, 314 Md. 689, 709, (1989). The conduct claimed to be performance must be referable to the alleged oral agreement exclusively. See Unitas, 314 Md. at 552. If there is any possible explanation for the conduct other than performance of the alleged agreement, the conduct is per se insufficient to avoid the Statute of Frauds. See id. at 709-10 (holding that performance was not met because conduct was "objectively explainable" as something other than performance of the alleged agreement). Unitas v. Temple involved an alleged oral agreement by a man to provide financially for a woman with whom he had a personal and professional relationship. This woman, Ms. Temple, presented the following facts in defense of this oral agreement: • Direct testimony from her, her parents and others that the alleged agreement was valid; • Evidence that the decedent, Dr. Rangle, actually prepared a will to financially provide for Ms. Temple and signed it on two occasions. However, neither occasion included the requisite two witnesses (although on one occasion he had one witness and the signing ceremony was interrupted by an emergency telephone call from a patient); • Other facts showing an agreement between the parties. Despite these facts, the Court of Appeals held that the oral contract could not be introduced into evidence. Quoting A. Corbin, Corbin on Contracts § 430 (1950), the court noted: "[P]art performance will not make an oral contract enforceable unless it is such as to be directly 'referable' to that contract. There is so much variation in the ordinary wordings of this requirement that it cannot be reduced to any very definite form; it must be explained rather than stated. The phrase 'referable' to the contract' frequently appears; but nobody gives any exact meaning to 'referable'." "It is believed that the principal idea that is struggling for expression is that the party performance must be clearly evidential of the existence of a contract – it must be such as would not ordinarily have taken place in the absence of a contract and therefore is not reasonably explicable on some other ground." The decision in Mann v. White Marsh Properties, Inc., is similarly instructive. In that case, the purchaser sued a vendor for specific performance of an alleged oral contract to convey real estate, relying on such acts as a title search, zoning compliance activities, and percolation tests as evidence of his part performance of the contract. The trial court granted summary judgment to the vendor but the Court of Special Appeals reversed, holding that conflicting inferences could be drawn as to whether the purchaser's act demonstrated the existence of a contract. The Court of Appeals reversed to hold expressly that the question of whether the acts of the party seeking to invoke a performance exception to the Statute of Frauds are equivocal or unequivocal to the existence of a contract is "one for the court on summary judgment and not one for the court as trier of fact." Mann, 321 Md. at 118. The court further held: “White Marsh's activities included having the title searched, having plans prepared and reviewed for zoning compliance, and making arrangements for a percolation test. As the Court of Special Appeals recognized, these actions are consistent with the existence of a contract, and they are also consistent with the absence of a contract, in that they are consistent with investigations preliminary to, or part of, negotiations. Simply by reason of theses acts the circuit court could not find, on the record in summary judgment, that the parties were unequivocally in a position difference from that which, according to their legal rights, they would be in if there were no contract.” 6 A pourover will is one giving money or property to an existing trust. Black’s Law Dictionary (8th ed. 2004).
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