Wills, Trusts, and Estates
[O]nly individuals with familial ties to the adopting parent should be presumed to be included in the gift class
A trustee cannot purchase from himself at his own sale without an order of the court, and neither can his wife.
Montana adopts the harmless error rule, which allows a will to be treated as properly executed if it is established by "clear and convincing evidence that the decedent intended the document to be the decedent's will."
Section 2107.03 provides the method for making a will. It states in part:
Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator's conscious presence and at the testator's express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator's signature.
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We hold that for a writing to be admitted into probate as a will under N.J.S.A. 3B:3–3, the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that:
- the decedent actually reviewed the document in question; and
- thereafter gave his or her final assent to it. Absent either one of these two elements, a trier of fact can only speculate as to whether the proposed writing accurately reflects the decedent's final testamentary wishes.
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Although a document or writing added upon a document was not executed in compliance with N.J.S.A. 3B:3–2, the document or writing is treated as if it had been executed in compliance with N.J.S.A. 3B:3–2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
If the only breach of trust is selling the property for too little value, the damages are the difference between the sale price and the value. Otherwise, the damages are the full value of the property.