Clark_11e-AM-Ch50.doc

Clark_11e-AM-Ch50.doc - 393 C HAPTER 50 W ILLS AND T RUSTS...

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Unformatted text preview: 393 C HAPTER 50 W ILLS AND T RUSTS A NSWERS TO Q UESTIONS AT THE E NDS OF THE C ASES CASE 50.1(PAGE 1031) THE E-COMMERCE DIMENSION Did SFA and Bradfords online offer of licenses for the commercial use of Monroes image have any effect on the courts decision in this case? Why or why not? No, the online offer of such property did not influence the courts decision. The principles at issue concerned a testators gifting of property that he or she owns, or does not own, at the time of death. The availability of such property or related rights for sale via the Internet did not alter these principles. THE LEGAL ENVIRONMENT DIMENSION How might the court have ruled if Monroe had phrased her residuary clause to clearly state an intent to devise property she did not then own? (Hint: Can anyoneduring or after their lifetransfer property that they do not own?) The courts ruling would likely have been the same. Monroeor any testatorhas no capacity to bequeath or devise property that she or he does not own at the time of death. Even if it were possible to clearly phrase such a clause, the court in the Shaw case explained that the effect would be to render the disposition invalid, because she had no legal right to dispose of property that did not exist at the time of her death. ... Under no circumstances, in the absence of a valid power, can any amount of testamentary intent produce the effect of subjecting property not owned by a testator at the date of his death to any disposition whatever. CASE 50.2WHAT IF THE FACTS WERE DIFFERENT? (PAGE 1033) Suppose that shortly before Pallisters death, she had asked James to tear up her will, and he had done it. Would the result have been different? Explain. Yes, because a testator may revoke a will by having someone tear it up at her direction, and the wills proponents would not have been able to prove that it existed at the time of her death or that it had been destroyed without her consent. Other evidence might have been considered in that circumstance, however, concerning, for example, Pallisters capacity, which might have influenced the result. 394 UNIT ELEVEN: SPECIAL TOPICS THE E-COMMERCE DIMENSION How might the availability of a secure online repository for a persons will affect a challenge to the will? A copy of a will might be produced more easily if it were deposited in an electronic database that could be accessed online. Whether a court would accept it as authentic is another question. The kind of proof that could be required to validate an online copy would be different from the proof needed to prove a paper copy. The testators e-signature would be in a different form (even a copy of the original would be electronic). These and other factors in such circumstances could make it easier to challenge and easier to propound a will....
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This note was uploaded on 03/17/2011 for the course LAW 1024066 taught by Professor K during the Spring '09 term at Fairleigh Dickinson.

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Clark_11e-AM-Ch50.doc - 393 C HAPTER 50 W ILLS AND T RUSTS...

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