Chapter 112
112.015
NOTES OF DECISIONS
Disinheritance
clause in will does not, by itself, constitute disposition of property for
purpose of avoiding intestate succession by disinherited person. McClain v.
Hardy, 184 Or App 448, 56 P3d 501 (2002)
112.025
NOTES OF DECISIONS
Where
decedent’s marriage voided his previous will and undue influence voided his
only subsequent will, division of decedent’s property is governed by rules of
intestacy. McKee v. Stoddard, 98 Or App 514, 780 P2d 736 (1989), Sup Ct review
denied
LAW REVIEW CITATIONS: 57 OLR 135 (1977)
112.035
LAW REVIEW CITATIONS: 57 OLR 135 (1977)
112.045
NOTES OF DECISIONS
Where
personal representative filed misleading petition alleging that decedent died
intestate, and he had personal interest in having estate pass by intestate
distribution under this section, he was not entitled to any compensation.
Reynolds v. Givens, 37 Or App 785, 588 P2d 113 (1978)
112.105
NOTES OF DECISIONS
Under
Oregon law, surviving child may establish right to inherit in proceeding for
social security benefits without having first had paternity established in
independent state paternity suit. Zahradnik v.
Sullivan, 966 F2d 355 (1992)
112.225
NOTES OF DECISIONS
Testamentary capacity
A
testator is presumed to have testamentary capacity if the will is executed in
due form. Nease v. Wilson, 6 Or App 589, 488 P2d 1396
(1971), Sup Ct review denied
Competency
at the time of making the will is determinative of testamentary capacity. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review
denied
Proponent
of a will has the burden of proving testamentary capacity. Nease
v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied
Testimony
of a subscribing witness which bears on mental competency is entitled to great
weight. Nease v. Wilson, 6 Or App 589, 488 P2d 1396
(1971), Sup Ct review denied
A
presumption that the decedent was mentally incompetent does not arise from the
appointment of a guardian for him, the presumption only arises where the
guardianship is set up because of the ward’s mental incompetence. Whitteberry v. Whitteberry, 9 Or
App 154, 496 P2d 240 (1972)
Under
conflicting testimony by attesting witnesses, whether testatrix was mentally
competent to execute will was question for trier of
fact. Currie v. Price, 31 Or App 141, 570 P2d 81 (1977)
Evidence,
inter alia, that decedent was in
hospital in extreme pain, could barely read and hear, and had been treated with
strong narcotic, established that she lacked testamentary capacity at time
codicil was executed. Hunt v. Galton, 37 Or App 811, 588 P2d 125 (1978), Sup Ct
review denied
Fraud and undue influence
The
law will not permit improper influences to control the disposition of a person’s
property. Nease v. Wilson, 6 Or App 589, 488 P2d 1396
(1971), Sup Ct review denied
The
burden of showing the exercise of undue influence at the time of making the
will is upon the contestant. Nease v. Wilson, 6 Or
App 589, 488 P2d 1396 (1971), Sup Ct review denied
A
disputable presumption of undue influence arises if a beneficiary who sustains
to the testator a confidential relationship participates in drafting the will. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review
denied
Reasonable
solicitations, without more, do not constitute undue influence. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review
denied
Influence
arising from gratitude, affection or esteem is not undue. Nease
v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied
112.227
NOTES OF DECISIONS
Will
contestant must show that no-contest provision is either unlawful or in
contravention of some specific public policy or it will be enforced. Larson v. Naslund, 73 Or App 699, 700 P2d 276 (1985)
112.235
NOTES OF DECISIONS
To
fulfill formal will requirements both witnesses must sign will before death of
testator. Rogers v. Rogers, 71 Or App 133, 691 P2d 114 (1984), Sup Ct review
denied
Will
is not executed when testator signs will unless that act is done in presence of
witnesses and witnesses then attest will. Perry v. Adams, 112 Or App 77, 827
P2d 930 (1992)
Testator’s
statement in will that signing was at testator’s direction, followed by
signature indicating representational capacity of signer, fulfilled requirement
that signer write on will that signer acted at direction of testator. Walker v.
Walker, 145 Or App 144, 929 P2d 316 (1996), Sup Ct review denied
Requirement
that will be acknowledged in presence of witnesses requires that document be
before witnesses at time of testator’s acknowledgement. Kirkeby
v. Covenant House, 157 Or App 309, 970 P2d 241 (1998), Sup Ct review denied
112.255
NOTES OF DECISIONS
Proponent’s
evidence was insufficient to establish that handwritten document purporting to
be decedent’s last will was holographic will under California law, where
decedent did not execute document in California and did not intend document to
be his last will but only draft since he had handwritten document typed out and
notarized, kept typed copy and discarded handwritten copy. Estate of Whitlatch v. Richardson, 99 Or App 548, 783 P2d 46 (1989)
112.270
NOTES OF DECISIONS
Where
exhibits evidenced decedent’s intent that plaintiff receive his property, but
made no reference to an underlying agreement between them to devise, such
evidence did not meet requirements of this section of a “writing signed by the
decedent evidencing the contract”. Richardson v. Richardson, 58 Or App 338, 648
P2d 377 (1982), Sup Ct review denied
Person
seeking specific performance of contract to make mutual reciprocal wills,
entered into before effective date of ORS 112.270, must show it is much more
probable than not that parties understood survivor’s will to be irrevocable. Willbanks v. Goodwin, 300 Or 181, 709 P2d 213 (1985)
This
section establishes means of proving contract to make will but does not govern
when such contracts may be enforced and thus plaintiff could bring action
during life of “testator.” Dickie v. Dickie, 95 Or App 310, 769 P2d 225 (1989), Sup Ct review
denied
112.285
NOTES OF DECISIONS
Where
all of dispositive provisions of will were defaced with exception of
insignificant bequest, will was sufficiently “mutilated” to give rise to
presumption that testatrix mutilated it with intent to revoke. Brune v. Oregon State Bd. of Higher Education, 44 Or App
449, 605 P2d 647 (1980), Sup Ct review denied
112.305
NOTES OF DECISIONS
Where
husband, in process of dissolving marriage, made will that did not contemplate
remarriage and did not indicate intent that it survive remarriage and husband,
before remarriage, did not make agreement creating exception to revocation
under this section, will was revoked by remarriage. Stevenson v. U.S. National
Bank, 72 Or App 39, 695 P2d 77 (1985), Sup Ct review denied
Validity
of voidable marriage could not be attacked in probate proceeding. Werden v. Thorpe, 126 Or App 97, 867 P2d 557 (1994), Sup Ct
review denied
112.315
NOTES OF DECISIONS
Revocation
of will by operation of law is absolute, and repeal of statute which effected
the revocation does not revive the will. Butte v. Crohn,
8 Or App 284, 494 P2d 258 (1972)
In
action seeking revocation of will by operation of law for divorce, where
decedent became Oregon domiciliary after divorce, this section, in effect while
decedent was domiciled in Oregon, was applicable rather than former statute in
effect at time of divorce. King v. Davidson, 39 Or App 239, 592 P2d 231 (1979),
Sup Ct review denied
112.400
NOTES OF DECISIONS
Section
was not retroactive as to will executed prior to section’s effective date.
Schmidt v. First National Bank, 31 Or App 455, 570 P2d 981 (1977)
112.650 to 112.667
NOTE:
Subject sections all subsequently repealed
NOTES OF DECISIONS
Properly
executed disclaimer may not be revoked or reformed based upon unilateral
mistake of law. Fleenor v. Williamson, 171 Or App
599, 17 P3d 520 (2000)
112.652
NOTE:
Repealed as of January 1, 2002
NOTES OF DECISIONS
Instrument
that disclaims “any and all interests” in property that is described in certain
provisions of will need not contain specific words, “right of succession” to be
effective. Palmer v. White, 100 Or App 36, 784 P2d 449 (1989)
Where
this section allows person to declare extent of disclaimer, condition that
would rescind disclaimer if court found it had unintended effect does not in
itself render disclaimer invalid. Palmer v. White, 100 Or App 36, 784 P2d 449
(1989)
112.657
NOTE:
Repealed as of January 1, 2002
NOTES OF DECISIONS
Where
this section prescribes devolution of disclaimed interest unless decedent has
provided for another disposition, provision of will need not expressly relate
to disclaimed property to provide another disposition. Palmer v. White, 100 Or
App 36, 784 P2d 449 (1989)
112.660
NOTE:
Repealed as of January 1, 2002
NOTES OF DECISIONS
Where
this section expressly allows disclaimer to defeat testatrix’s intention to
create spendthrift trust, disclaimer that results in acceleration of disclaimant’s interest under spendthrift trust does not
violate public policy. Palmer v. White, 100 Or App 36, 784 P2d 449 (1989)
Properly
executed disclaimer may not be revoked or reformed based upon unilateral
mistake of law. Fleenor v. Williamson, 171 Or App
599, 17 P3d 520 (2000)
112.685
NOTES OF DECISIONS
Heirs
cannot require a widow occupying land of which her husband died seised to pay rent unless they impose rent as a condition
of her occupancy or until they demand she vacate. Ferguson v. Vance, 263 Or
636, 503 P2d 706 (1972)
A
widow’s occupation of land of which her husband died seised
need not be with the children or heirs, but she can occupy the premises only so
long as the heirs or others interested do not object. Ferguson v. Vance, 263 Or
636, 503 P2d 706 (1972)
LAW REVIEW CITATIONS: 53 OLR 205 (1974);
57 OLR 135 (1977)
112.705 to 112.775
LAW REVIEW CITATIONS: 53 OLR 209 (1974)
112.735
LAW REVIEW CITATIONS: 53 OLR 208 (1974)