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BENJAMIN N

Law

BENJAMIN N. CARDOZO SCHOOL OF LAW «+ YESHIVA UNIVERSITY
EXAMINATION COVER SHEET

Course: Introduction to U.S. Law

INTRODUCTION TO U.S. LAW
Fall 2020
Final Exam

FACTS
Posie Lambert was a 75-year-old widow with a heart condition. She had no living children but
had one granddaughter, Elma, 25. Posie was wealthy from her investments 1n silver mines in
Alaska and the stock market. Since her early parents’ deaths, Elma had lived on and off with her grandmother.
When Elma visited her grandmother in Ohio 1n February 2020, Posie told Elma she needed a
pacemaker inserted due to an uneven heart rhythm. Posie also talked about her increasing desire to preserve public and park lands. She mentioned that she was in the process of selling her mining investments and was making contributions to select environmental groups.
After Posie’s pacemaker procedure, Elma stayed with Posie. Posie’s heart doctor told Elma when she came to take Posie home from the hospital that patients commonly experience some depression following heart-related issues and some decline after a heart procedure, which 1s mostly recovered over time with rest and exercise.
Elma remained in Ohio due to COVID-19, coming and going from Posie’s home and spending
weekends with friends at a nearby vacated Ohio State University student house. Posie was
slowly recovering and continuing to pay attention to the increasingly unsettled world
circumstances. She and Elma grew more distant during this period and Posie was concerned that Elma refused to wear a mask.
In June, Posie decided to execute a new will in which she left her investment assets to two major non-profit environmental organizations. Isolated in her home due to the COVID-19 pandemic, Posie called her long-time attorney to discuss her desire to write a new will.
Posie’s attorney sent her the new will he had prepared. Posie read, approved, signed it and sent it back to her attorney. On June 23, 2020, the lawyer hosted a Zoom meeting with Posie, himself and two of his firm’s paralegals. All were in separate physical locations. Posie joined the meeting using her [Pad tablet. The lawyer told Posie he had revoked her old will and he shared his screen so all could see the new will document. Posie’s Internet connection was unstable but she was able to vaguely see her lawyer’s face although she sometimes complained that he and the two witnesses, who each signed her will, were “frozen” on the screen. After ending the Zoom meeting, the lawyer called Posie on the phone and told her that her June 23, 2020 will was now valid. Posie told him she was relieved that this was done and she thanked him. On June 24th, Posie died of a heart attack. Shortly after the funeral, Posie’s lawyer informed Elma about the bequests 1n Posie’s will and explained that Posie had left Elma her home 1n Ohio.
Elma believes Posie’s will is invalid because the witnesses were not in Posie’s “conscious
presence” as required by Ohio law. Elma claims either Posie’s earlier will, which left her entire
estate to Elma, remains valid, or, 1f it was properly revoked, that Posie’s new will is invalid, and therefore as Posie’s only living descendent, she 1s entitled to Posie’s entire estate under the Statute of Descents. Elma filed an action against Posie’s attorney and the two organizations to whom Posie left her investment assets, claiming Posie’s June 23, 2020 will 1s invalid. The Defendants filed a motion for summary judgment, arguing that Ohio law had been complied with as a matter of law. The Ohio trial court granted Defendants’ motion for summary judgment, finding the will valid. Elma has appealed to the Ohio Appeals Court.

QUESTION: You are a law clerk to a judge on the Ohio Appeals Court, the state’s intermediate court of appeals. The judge for whom you are clerking asks you to write her a draft opinion in response to Elma’s appeal. In writing this draft opinion, do not repeat facts but use facts as relevant; do not reproduce statutory or case language, but use it as relevant; and you can discuss any relevant material that we read this semester as well as the statutes, cases, and other materials provided here.
STATUTES
OHIO STATUTE: 2105.06 Statute of Descent and Distribution (1953; amended 1986)
When a person dies intestate (without a will) having title or nght to any personal property, or to any real property or inheritance, in this state, the personal property shall be distributed, and the real property or inheritance shall descend and pass on to next of kin, except as otherwise provided by law, 1n the following course:

(A) If there is no surviving spouse, to the child or children of the intestate or the grandchild or

grandchildren of the intestate ....
OHIO STATUTE: 2107.03 Method of Making Wills (Statute of Wills) (1924; amended
1985)
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 1n the Testator’s conscious presence and at the Testator’s express direction. The will shall be attested to and subscribed to in the conscious
presence of the Testator, by two or more competent witnesses, who saw the Testator sign the
will.
OHIO STATUTE: 3230.10. Declaration by Governor.
The governor may issue an executive order declaring a state of emergency for any portion of the state if he or she determines that an emergency resulting from a disaster or the mmunent threat of a disaster exists. If a governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency and identifying the impact of such declaration on the operations, requirements, and proceedings of the state. No person shall forfeit any right, privilege, or other benefit under state law as a result of any directives by the Governor under an emergency declaration.
OHIO’S STAY AT HOME AND EMERGENCY PROCEDURES ORDER 04/02/2020
I, Amy Acton, Governor of Ohio, 1n conjunction and furtherance of existing Ohio law, hereby
declare a state of emergency for the State of Ohio.

Stay at home or place of residence. All individuals currently living within the State of Ohio are
ordered to stay at home or at their place of residence except as allowed in this Order. To the
extent individuals need to occupy shared spaces, all individuals must follow CDC guidelines for proper social distancing and all safety protocols.
Intent of this Order. The intent of this Order is to ensure that the maximum number of people
self-isolate to slow the spread of COVID-19 to the greatest extent.
Court proceedings. This stay at home order pertains to court proceedings except in case of
emergency.
Prohibited in-person activities. All residents are to refrain from all in person activities except
for proceedings that are medical in nature or whose time-sensitivity prevents their being
accomplished at such time as the emergency no longer exists.
CASES
In re Tracy's Estate, Ohio Appeals Court (1955) Testator Tracy was suffering from tuberculosis and confined to a small bedroom in her home. She told her nurse, Reba, that she was revoking her old will and requested that her nurse find two witnesses for the signing of her new will. Because of the contagiousness of Tracy’s condition, these witnesses watched Tracy from outside her room sign her name on the new will in her bedroom and heard her state that she revoked her former will. Her earlier will left her property to her brother. Her new will left her estate to her nurse and neighbor in equal parts.
The witnesses signed the will in the dining room 25 feet away from Testator’s bedroom. Testator could see into the dining room and hear the witnesses in conversation, but Testator could not actually see the act of signing. Because the witness signing was immediately after the Testator’s signing and the Testator could hear and understand by the nature of the witnesses’ conversation that they were attesting to her will, we find that the 2107.03 “conscious presence” test was satisfied These requirements ensure fulfillment of the Testator’s intentions at the time of signing.
The burden on the challenger of a will to establish lack of compliance with statutory
requirements requires a factual showing. That burden was not met here. The statute 1s designed to effectuate the policies of safeguarding titles and frustrating fraudulent claims. The testator here complied with the statute, exercising the grant of power given by the statute in accordance with the reasonable conditions placed upon that power. This testator provided what our legislature, in authorizing the passing of property by will, has determined to be reliable evidence that her will 1s valid.
Matter of Jefferson’s Will, Ohio Supreme Court (1990)
Testator Jefferson’s attorney prepared Testator’s will following Testator’s wishes. Jefferson
signed the will in his attorney’s presence. Then the attorney signed the will as a witness. The
Testator lived out of town in a nursing home. The Testator was unable to travel and did not want other residents or staff of the home to know about his private matters. The attorney brought the will to his colleague’s law office in town for the second witness signing. The attorney along with his colleague called Jefferson and told him that he had a will in his hand with Jefferson’s and his signature on it. Jefferson confirmed that they had signed the will. The attorney stated that he knew that the person on the other end was Jefferson. The attorney’s colleague proceeded to sign the Testator’s will as a second witness. We hold that the second signer to the Testator’s will was not in the “conscious presence” of the Testator and thus the will did not meet the statutory requirements. The Statute of Wills is a clear and time-honored statement of legislative agreement. In 1985, in accordance with the State Law Reconciliation Act, the legislature amended and updated the Statute of Wills’ numbering and language to conform to the Family Law Code, and added the following preamble language to the statute: “ Whereas the effectuation of the true legacy of a testator’s property and the fulfill ment of the will of the testator are paramount goals, the Statute of Wills requires and facilitates fair and known procedures that we reaffirm and uphold. ” As we stated in a previous case in a different but applicable situation, “the design of the rules of practice are to facilitate business and advance justice, and should be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice … . In the making of contracts, procedure is bound to purpose and effect. T h us, f or malities t hat are rati o nall y relate d t o t heir i nte n de d p ur p ose ma y o nl y gi ve wa y t o practical rele va nce a n d i n de pe n de nt a p plicati o n w here n ecessit y pr o vi des n o alter nati ve.” S uc h is t he wa y wit h wills. Base d o n t he e vi de n ce prese nte d, we d o n ot fi n d t his practical rele va n ce prese nt here. W hit acre v. Cr o we , O hi o S u pre me C o urt ( 2 0 1 2) Testat or Ka y was d yi n g a n d s o u g ht t o ma ke her will. I n her will, s he na me d her da u g hter, Vict oria Cr o we, d efe n d a nt here , as t he s ole b e neficiar y a n d h er s o n, Mic hael, as e xec ut or of her estate. T he will ma de n o me nti o n of Ka y’s t hree ot her c hil dre n, S ha w n, A n gie, a n d Nic k ( plai ntiffs). After Ka y di e d, t he plai ntiffs file d a c o m plai nt c o ntesti n g t he vali dit y of t he will’s e xec uti o n u n der O hi o la w. Ka y si g ne d t he will i n her u pstairs be dr o o m, w h ere a o ne- wa y “ b a b y” m o nit or tra ns mitte d vi de o a n d a u di o of K a y t o ot hers i n t he li vi n g r o o m d o w nstairs. T he m o nit or di d n ot tra ns mit s o u n d or vi de o i n t he ot her directi o n, fr o m d o w nstairs t o u pstairs. After K a y si g ne d t he will, her s o n, Mic hael, br o u g ht it d o w nstairs, w here Sara W hite a n d J ose p h Reic h si g ne d t he will as wit nesses. Ka y’s da u g hter, Vict oria, was als o pres e nt. T he d o or t o Ka y’s be dr o o m was o pe n at t he ti me, a n d t h us s he ma y ha ve bee n a ble t o hear t he c o n vers ati o ns i n t he li vi n g r o o m bel o w. We h ol d t hat t he wit ness es di d n ot attest a n d s u bscri be t o Ka y’s will wit hi n her “c o ns ci o us prese nce,” as re q uire d b y O hi o Stat ute 2 1 0 7. 0 3. “ C o nsci o us prese nce” re q uires t hat t he wit ne sses be i n t he testat or's ra n g e of visi o n or t hat t he testat or hear a n d u n derst a n d t hat t he wit nesses are subscribing and attesti n g t o t he will at t he ti me t he y are d oi n g s o. T he c hall e n gers here ha v e carri e d t heir b ur d e n a n d esta blis he d a “lac k of co m plia nce wit h stat ut or y re q uire me nts.” See I n re Tr acy’s Est ate, O hi o A p peals C o urt ( 1 9 5 5). Si nce t he will is n ot vali d, the decedent’s estate will be resolved in accordance with the Statute of Descents and all five children shall take an equal share of the decedent’s estate.

Litevich v.Wolf, Ohio Appeals Court (2016)
Legal Zoro 1s a program that enables people to prepare their own wills on their computers. Here, Testator, now deceased, wrote a will using a recently purchased Legal Zoro software application on her computer. To use Legal Zoro to create a will, the Testator logged on to her computer, which required a password, and then used her personal credit card to pay for the account and Legal Zoro’s services.
The Testator completed a lengthy process to determine with specificity her exact wishes. This
process required her to provide “all her pertinent personal information” including her social
security number. After finishing, the Testator was required to confirm the document she created with an electronic signature. Testator then participated in a phone call with two Legal Zoro professional will witnessers. They told her that they would be witnessing and attesting to her will. She understood and agreed. She signed her will by e-signature, after which the document was transmitted to the two professional will witnesses to sign.
One of the professional witnesses was involved in another will signing going on with another
Legal Zoro user and left the room for a period during Testator’s signing and transmission of her signed will.
We hold the will to be invalid. Upholding the execution formalities for testamentary instruments is necessary for the legally valid transfer of property at death. Advances in technology do not obviate the necessity for care and attention to legal principles and statutory requirements. The testamentary wishes of those who utilize authentication techniques that were not available when the Statute of Wills was promulgated must meet a high standard of necessity and integrity to fulfill the statute’s clear requirements.
As per the legislative pronouncement, a will shall not be valid unless it is in writing, signed by
the testator and attested to by two witnesses, each of them in the testator's conscious presence. Our Statute of Wills amounts to a positive rule for the transmission of property, which must be complied with, as a complete act at the time of execution. This rule was not followed here.

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