wills and trusts spring 2008professor gillettjay.law.ou.edu/faculty/gillett/wills and...
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Wills and TrustsSpring 2008
Professor Gillett
The classroom experience and participation in class discussions is an importantcomponent of the learning process. The following represents the highest grade that you canreceive based on the number of your absences:
Highest Grade AbsencesA+ 0-4
C+ 5-6 F 7 or more
THERE WILL BE NO EXCUSED ABSENCES. IF YOU MISS MORE THAN 5MINUTES OF CLASS, YOU WILL BE TREATED AS ABSENT.
IF YOU ARE UNPREPARED FOR CLASS, YOU WILL BE TREATED AS ABSENT.
HAVING SOMEONE SIGN THE ROLL SHEET ON YOUR BEHALF OR YOURSIGNING THE ROLL SHEET IF YOU MISS MORE THAN 5 MINUTES OF CLASS IS
AN HONOR CODE VIOLATION.
Chapter 1 - Introduction to Estate PlanningPages 1-8, 20-39, 48-58
Chapter 2 - Intestacy: An Estate Plan by DefaultPages 59-94, 99-101, 114-121, 126-135Okla. Stat. 10 Section 7505-6.5
84 Section 211-232
Chapter 3 - Wills: Capacity and ContestsPages 141-156, 158-176, 186-197Okla. Stat. 58 Section 29, 41, 61, 67
84 Section 43Case Estate of Holcomb
Chapter 4 - Will: Formalities and FormsPages 199-215, 218-225, 236-241, 245-294Okla. Stat. 15 Section 178
58 Section 30, 81, 8284 Section 41, 44, 46, 54, 55, 71, 81, 82, 101-106, 114, 143, 144, 213
Case Estate of Speers
Chapter 5 - Wills Substitutes: Nonprobate TransfersPages 295-345Okla. Stat. 6 Section 901, 902
58 Section 178, 100158 Section 1251-125860 Section 7484 Section 52, 101, 142
Chapter 6 - Interpretation of WillsPages 365-415Okla. Stat. 46 Section 5
84 Section 11, 14, 142, 152, 168, 174, 177, 185, 213
Chapter 7 - Restrictions on the Power of DispositionPages 417-423, 438-445, 466-468, 473-474, 480-484Okla. Stat. 15 Section 178
46 Section 558 Section 311-31884 Section 3, 4, 11, 14, 44, 103, 131-133, 142, 152, 174, 177, 185, 213,
215Case Estate of Richardson
Chapter 8 - Trusts: Creation, Types, and CharacteristicsPages 485-493, 498-516, 518-557, 572-587Okla. Stat. 58 Section 1213-1215
60 Section 136, 175.25, 175.25(A), 175.25(D), 175.25(G), 175.41, 175.49, 1101-1109
84 Section 301
Chapter 13 - Trust Administration: The Fiduciary ObligationPages 779-843Okla. Stat. 60 Section 156, 161-163, 175.7, 175.8, 175.10, 175.13, 175.15,
175.17-20, 175.24, 75,29, 175.30, 175.33, 175.35, 175.48
You are responsible for locating and reading the relevant Oklahoma statutes in the supplement inaddition to those specifically set forth above.
The University of Oklahoma is committed to providing reasonableaccommodation for all students with disabilities. Students with disabilities whorequire accommodations in this course are requested to speak with the professoras early in the semester as possible. Students with disabilities must be registeredwith the Office of Disability Services prior to receiving accommodations in thecourse. The Office of Disability Services is located in Goddard Health Center,Suite 166, phone 405/325-3852 or TDD only 405/323-4173.
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TITLE 6. BANKS AND TRUSTCOMPANIES
§ 901. Deposits in name of two or morepersons--Payable on death deposit accounts--Forms ofdeposit accounts included
A. When a deposit has been made or shall hereafter bemade in any bank in the names of two or more persons,payable to any of them or payable to any of them or thesurvivor, such deposit, or any part thereof, or any interestthereon, may be paid to either of the persons, whether oneof such persons shall be a minor or not, and whether theother be living or not; and the receipt or acquittance of theperson so paid shall be valid and sufficient release anddischarge to the bank for any payment so made.
B. 1. When a deposit has been made or shall hereafterbe made in any bank using the terms "Payable on Death" or"P.O.D.", such deposits shall be payable on the death of theaccount owner to one or more designated P.O.D.beneficiaries, or to an individual or individuals namedbeneficiary if living and if not living, to the named estate ofthe beneficiary, notwithstanding any provision to thecontrary contained in Sections 41 through 57 of Title 84 ofthe Oklahoma Statutes. Each designated P.O.D. beneficiaryshall be a trust, an individual, or a nonprofit organizationexempt from taxation pursuant to the provisions of theInternal Revenue Code, 26 U.S.C., Section 501(c)(3).
2. A deposit account with a P.O.D. designation shallconstitute a contract between the account owner, (orowners, if more than one) and the bank that upon thedeath of the last surviving owner of the account, andafter payment of account proceeds to any secured partywith a valid security interest in the account, the bankwill hold the funds for or pay them to the namedprimary beneficiary or beneficiaries if living. If anynamed primary beneficiary is not living, the share ofthat beneficiary shall instead be held for or paid to theestate of that deceased beneficiary unless contingentbeneficiaries have been designated by the accountowner as allowed by paragraph 4 of this subsection.
3. Each P.O.D. beneficiary designated on a depositaccount shall be a primary beneficiary unlessspecifically designated as a contingent beneficiary.
4. If there is only one primary P.O.D. beneficiary on adeposit account and that beneficiary is an individual,the account owner may designate one or morecontingent beneficiaries for whom the funds shall beheld or to whom the funds shall be paid if the primarybeneficiary is not living when the last surviving ownerof the account dies. If there is more than one primaryP.O.D. beneficiary on a deposit account, contingentbeneficiaries shall not be allowed on that account.
5. If the only primary P.O.D. beneficiary is not livingand one or more contingent beneficiaries have beendesignated as allowed by paragraph 4 of thissubsection, the funds shall be held for or paid to thecontingent beneficiaries in equal shares, and shall not
belong to the estate of the deceased primarybeneficiary. If the only primary beneficiary is notliving, and a contingent beneficiary or contingentbeneficiaries have been designated as allowed byparagraph 4 of this subsection, but one or moredesignated contingent beneficiaries are also not living,the share that otherwise would belong to any deceasedcontingent beneficiary shall instead be held for or paidto the estate of that deceased contingent beneficiary.
6. In order to designate multiple primary P.O.D.beneficiaries for a deposit account, the account shouldbe styled as follows:
"(Name of Account Owner), payable on death (orP.O.D.) to (Name of Beneficiary), (Name ofBeneficiary), and (Name of Beneficiary, in equalshares.)"
7. If only one primary P.O.D. beneficiary has beendesignated on a deposit account, the account ownermay add the following, or words of similar meaning, inthe style of the account or in the account agreement:
"If the designated P.O.D. beneficiary is deceased,then payable on the death of the account owner to(Name of Beneficiary), (Name of Beneficiary), and(Name of Beneficiary), as contingent beneficiaries,in equal share."
8. Adjustments may be made in the styling, dependingupon the number of owners of the account, to allow forsurvivorship rights, and the number of beneficiaries. Itis to be understood that each beneficiary is entitled to aproportionate share of the account proceeds only afterthe death of the last surviving account owner, and afterpayment of account proceeds to any secured party witha valid security interest in the account. In the event ofthe death of a beneficiary prior to the death of theaccount owner, the share of that beneficiary shall go tothe estate of that beneficiary. Unless one or morecontingent beneficiaries have been designated to takethe place of that beneficiary as provided in paragraph 4of this subsection. All designated primary P.O.D.beneficiaries shall have equal shares. All designatedcontingent P.O.D. beneficiaries shall have equal sharesas if the sole primary beneficiary is deceased.
9. A bank may require the owner of an account toprovide an address for any primary or contingentP.O.D. beneficiary. If the P.O.D. account is aninterest-bearing account and the funds are not claimedby the P.O.D. beneficiary or beneficiaries within sixty(60) days after the death of the last surviving accountholder, or after the bank has notice of the death of thelast surviving account holder, whichever is later, thebank has the right to convert the account to anon-interest-bearing account.
10. No change in the designation of a namedbeneficiary shall be valid unless executed by the ownerof the fund and in the form and manner prescribed bythe bank; however, this section shall be subject to theprovisions of Section 178 of Title 15 of the Oklahoma
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Statutes.
11. The receipt or acquittance of the named beneficiaryso paid, or of the legal representative of such namedbeneficiary's estate, if the beneficiary is deceased andthere is no contingent beneficiary designated to take theplace of that beneficiary, shall be valid and sufficientrelease and discharge to the bank for any payment somade, unless, prior to such payment, the bank receivesnotice in the form and manner required in Section 905of this title.
12. Subsequent to the effective date of this act, a bankshall provide a customer creating a P.O.D. account witha written notice that the distribution of the proceeds inthe P.O.D. account shall be consistent with theprovisions of Section 901 of Title 6 of the OklahomaStatutes.
C. The provisions of this section shall apply to allforms of deposit accounts, including, but not limited to,transaction accounts, savings accounts, certificates ofdeposits, negotiable order of withdrawal (N.O.W.)accounts, and M.M.D.A. accounts.
§ 902. Trustee deposit accountsA. Whenever any deposit shall be made in a bank by
any person which is in form in trust for another, and noother or further notice of the existence and terms of a legaland valid trust shall have been given in writing to the bank,in the event of the death of the trustee, the same, or any partthereof, together with the interest thereon, may be paid tothe person or persons for whom the deposit was made. Adeposit held in this form shall be deemed to constitute aTotten Trust. A revocation of such trust may only be madein writing to the bank and the bank shall not suffer anyliability for payment of funds pursuant to the trust unlessand until it receives written notice of revocation.
B. 1. If a deposit account is opened with a bank byone or more persons expressly as a trustee for one or moreother named persons and further notice of the existence andterms of a legal and valid trust is not given in writing to thebank, the bank may accept and administer the account asset forth in subsection A of this section.
2. If a deposit account is opened with a bank by one ormore persons expressly as a trustee for one or moreother named persons pursuant to or purporting to bepursuant to a written trust agreement, the trustee mayprovide the bank with a certificate of trust to evidencethe trust relationship. The certificate shall be anaffidavit of the trustee and must include the effectivedate of the trust, the name of the trustee, the name ormethod for choosing successor trustees, the name andaddress of each beneficiary, the authority granted to thetrustee, the disposition of the account on the death ofthe trustee or the survivor of two or more trustees, otherinformation required by the bank, and anindemnification of the bank. The bank may accept andadminister the account, subject to the provisions ofTitle 58 of the Oklahoma Statutes, in accordance withthe certificate of trust without requiring a copy of thetrust agreement. The bank is not liable foradministering the account as provided by the certificate
of trust, even if the certificate of trust is contrary to theterms of the trust agreement, unless the bank has actualknowledge of the terms of the trust agreement.
3. On the death of the trustee or the survivor of two ormore trustees, the bank may pay all or part of thewithdrawal value of the account with interest asprovided by the certificate of trust. If the trustee did notdeliver a certificate of trust, the bank's right to treat theaccount as owned by a trustee ceases on the death ofthe trustee. On the death of the trustee or the survivorof two or more trustees, the bank shall, unless thecertificate of trust provides otherwise, pay thewithdrawal value of the account, with interest, in equalshares to the persons who survived the trustee, arenamed as beneficiaries in the certificate of trust, andcan be located by the bank from its own records. Ifthere is not a certificate of trust, payment of thewithdrawal value and interest shall be made asprovided by Title 58 of the Oklahoma Statutes. Anypayment made under this section for all or part of thewithdrawal value and interest discharges any liability ofthe bank to the extent of the payment. The bank maypay all or part of the withdrawal value and interest inthe manner provided by this section, regardless ofwhether it has knowledge of a competing claim, unlessthe bank receives actual knowledge that payment hasbeen restrained by order of a court of competentjurisdiction.
4. This section does not obligate a bank to accept adeposit account from a trustee who does not furnish acopy of the trust agreement? or to search beyond itsown records for the location of a named beneficiary.
5. This section does not affect a contractual provisionto the contrary that otherwise complies with the laws ofthis state.
TITLE 10. CHILDREN
CHAPTER 75. OKLAHOMA ADOPTION CODE
ARTICLE 5. ADOPTION PROCEEDINGS
§ 7505-6.5. Effect of final decree--Grandparental rightsA. After the final decree of adoption is entered, the
relation of parent and child and all the rights, duties, andother legal consequences of the natural relation of child andparent shall thereafter exist between the adopted child andthe adoptive parents of the child and the kindred of theadoptive parents. From the date of the final decree ofadoption, the child shall be entitled to inherit real andpersonal property from and through the adoptive parents inaccordance with the statutes of descent and distribution.The adoptive parents shall be entitled to inherit real andpersonal property from and through the child in accordancewith said statutes.
B. After a final decree of adoption is entered, thebiological parents of the adopted child, unless they are theadoptive parents or the spouse of an adoptive parent, shall
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be relieved of all parental responsibilities for said child andshall have no rights over the adopted child or to theproperty of the child by descent and distribution.
C. A grandparent, who is the parent of the minor'sbiological parents, may be given reasonable rights ofvisitation to the child, only to the extent permitted by theprovisions of Section 5 of this title.
D. A decree of adoption does not affect any propertyright or benefit vested in the child before the decreebecomes final.
TITLE 15. CONTRACTSChapter 3. Interpretation of Contracts
§ 178. Contracts designating former spouse asbeneficiary or providing death benefits--Effect ofdivorce or annulment
A. If, after entering into a written contract in which abeneficiary is designated or provision is made for thepayment of any death benefit (including life insurancecontracts, annuities, retirement arrangements,compensation agreements, depository agreements, securityregistrations, and other contracts designating a beneficiaryof any right, property, or money in the form of a deathbenefit), the party to the contract with the power todesignate the beneficiary or to make provision for paymentof any death benefit dies after being divorced from theperson designated as the beneficiary or named to receivesuch death benefit, all provisions in the contract in favor ofthe decedent's former spouse are thereby revoked.Annulment of the marriage shall have the same effect as adivorce. In the event of either divorce or annulment, thedecedent's former spouse shall be treated for all purposesunder the contract as having predeceased the decedent.
B. Subsection A of this section shall not apply:1. If the decree of divorce or annulment is vacated;
2. If the decedent had remarried the former spouse andwas married to said spouse at the time of the decedent'sdeath;
3. If the decree of divorce or annulment contains aprovision expressing an intention contrary tosubsection A of this section;
4. If the decedent makes the contract subsequent to thedivorce or annulment;
5. To the extent, if any, the contract contains aprovision expressing an intention contrary tosubsection A of this section; or
6. If the decedent renames the former spouse as thebeneficiary or as the person or persons to whompayment of a death benefit is to be made in a writingdelivered to the payor of the benefit prior to the deathof the decedent and subsequent to the divorce orannulment.
C. For purposes of subsection A of this section, "death
benefit" shall not include:1. Any interest in property in which the decedent'sformer spouse has an interest as a joint tenant; or
2. Any interest in property in which the decedent'sformer spouse has a beneficial interest in an expresstrust created by the decedent during the decedent'slifetime for which provision is made in Section 175 ofTitle 60 of the Oklahoma Statutes.
D. This section shall apply to any contract of adecedent made and entered into on or after November 1,1987 and to depository agreements and securityregistrations made and entered into on or after September1, 1994
TITLE 31. HOMSTEAD ANDEXEMPTIONS
§ 10. Short titleThis act shall be known and may be cited as the
"Family Wealth Preservation Trust Act".
§ 11. DefinitionsAs used in the Family Wealth Preservation Trust Act:1. "Grantor" means an individual, whether or not aresident of this state, establishing or creating apreservation trust;
2. "Oklahoma assets" includes:a. a stock, bond, debenture, membership interest,partnership interest, or other equity or debt interestissued by an Oklahoma-based company,
b. a bond or other obligation issued by this state oran Oklahoma governmental agency,
c. a bond or other obligation issued by a county ofthis state , by a municipal government located inthis state, by a school district located in this state orby any public trust for the benefit of either this stateor one or more political subdivisions of this state,
d. an account in an Oklahoma-based bank. As usedin this subparagraph, "account" means a demand,time, savings or passbook type of account or acertificate of deposit type of account,
e. real or tangible personal property, or any interesttherein, having a situs in this state, which shallinclude, but not be limited to:(1) mineral interests, or
(2) promissory notes secured primarily by real ortangible personal property or both,
f. any security backed exclusively by promissorynotes, if at least a majority in value of suchpromissory notes are secured by real or tangiblepersonal property having a situs in this state orboth, and
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g. mutual funds, as defined pursuant to TheInvestment Company Act of 1940, 15 U.S.C.,Section 80a-1 et seq. and The Securities Act of1933, 15 U.S.C., Section 77a et seq., and commontrust funds, as defined pursuant to Section 1010 ofTitle 6 of the Oklahoma Statutes, to the extent theassets within such funds meet one or more of therequirements listed in subparagraphs a through f ofthis paragraph;
3. a. "Oklahoma-based bank" means a bank, savingsassociation or credit union which both:(1) takes deposits insured by the Federal DepositInsurance Corporation or the National CreditUnion Administration, and
(2) has a place of business in Oklahoma, whichshall be a physical location, and
b. "Oklahoma-based trust company" means a trustcompany chartered under the laws of this state ornationally chartered and having a place of businessin Oklahoma, which shall be a physical location;
4. "Oklahoma-based company" means a corporation,limited liability company, limited partnership, limitedliability partnership or other legal entity formed orqualified to do business in this state and having itsprincipal place of business in this state, which principalplace of business shall be a physical location;
5. "Preservation trust" means a trust:a. established by a grantor under Oklahoma law,
b. having at all times as a trustee or cotrustee anOklahoma-based bank that maintains a trustdepartment or an Oklahoma-based trust company,
c. having as beneficiaries only qualifiedbeneficiaries or a qualified beneficiary,
d. having a majority in value of its assets comprisedof Oklahoma assets, except that if any asset whichqualifies, or is intended to qualify, as an Oklahomaasset ceases or fails to qualify as an Oklahomaasset, the trustee shall have a reasonable period oftime following discovery thereof to convert suchnonqualifying asset into an Oklahoma asset, and
e. reciting in its terms that the income generatedfrom the corpus of the trust is subject to the incometax laws of this state; and
6. "Qualified beneficiary" or "qualified beneficiaries"means:
a. the lineal ancestors and lineal descendants of thegrantor or the grantor's spouse, including adoptedlineal descendants if they were under the age ofeighteen (18) at the time of the adoption,
b. the spouse of the grantor,
c. a nonprofit organization qualified under theprovisions of the Internal Revenue Code of 1986,26 U.S.C., Section 501(c)(3), or
d. a trust settled for the sole benefit of one or morequalified beneficiaries.
§ 12. Corpus and income of preservation trust exemptfrom attachment, execution, forced sale, andliens--Exceptions--Transfer of assets
Notwithstanding Section 3 of this title and Section299.15 of Title 60 of the Oklahoma Statutes, the corpusand income of a preservation trust shall be exempt fromattachment or execution and every other species of forcedsale and no judgment, decree, or execution can be a lien onthe trust for the payment of debts of a grantor, except achild support judgment, except for any additional propertycontributed to the preservation trust by the grantor havingan aggregate fair market value, determined as of the date ofeach contribution, minus liabilities to which the property issubject, in excess of One Million Dollars ($1,000,000.00).Any incremental growth derived from income or anincrease in value of the corpus of a preservation trust shallalso be considered protected by this section. Transfer of anasset to a preservation trust does not affect any mortgage,security interest or lien to which that asset is subject.
§ 13. Preservation trust--Revocable orirrevocable--Contributions
A preservation trust may be established as a revocableand amendable trust or as an irrevocable trust. If thegrantor of a preservation trust revokes or partially revokesthe preservation trust, the exemption provisions of Section12 of this title shall not be applicable to any propertyreceived by the grantor as a result of such revocation orpartial revocation. The fair market value of any propertyreceived by the grantor as a result of a partial revocationshall increase the amount of property which the grantormay contribute to the preservation trust pursuant to Section12 of this title.
§ 14. Preservation trust exemptions independent and inaddition to other exemptions
The exemptions provided for pursuant to otherprovisions of the laws of this state shall be independent ofand in addition to the exemption provided for pursuant toSection 12 of this title.
§ 15. Effect on homestead exemptionThe provisions of the Family Wealth Preservation Trust
Act shall not operate to increase the area and value of thehomestead exemption provided for pursuant to Section 2 ofthis title.
§ 16. Revocation of preservation trust cannot becompelled--Restrictions on transferability
No court or other judicial body shall have the authorityto compel a person holding a power of revocation oramendment over a preservation trust to exercise the powerof revocation or amendment. The provisions of this actshall be considered restrictions on the transferability of thegrantor's beneficial interest in the preservation trust that isenforceable under applicable nonbankruptcy law within themeaning of Section 541(c)(2) of the United StatesBankruptcy Code or any successor provisions.
§ 17. Transfers subject to Uniform Fraudulent TransferAct
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Any transfer of monies or property by a grantor to apreservation trust shall be subject to the provisions of theUniform Fraudulent Transfer Act.
§ 18. Grantor limited to single preservation trust
A grantor may not establish more than one preservationtrust. However, in the event a preservation trust establishedby a grantor is wholly revoked or terminated, the grantormay establish a new preservation trust, and this act shall beapplicable to such new preservation trust.
TITLE 46. MORTGAGESChapter 1. Mortgages of Realty
§ 5. Mortgage follows property passing by succession orwill When real property, subject to a mortgage, passes bysuccession or will, the successor or devisee must satisfy themortgage out of his own property, without resorting to theexecutor or administrator of the mortgagor, unless there isan express direction in the will of the mortgagor that themortgage shall be otherwise paid.
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TITLE 58. PROBATEPROCEDURE
Chapter 1. Jurisdiction
§ 1. Probate jurisdiction and venue of district court A. The district court has probate jurisdiction, and thejudge thereof power, which must be exercised in the casesand in the manner prescribed by statute:
1. To open and receive proof of last wills andtestaments, and to admit them to proof and to revokethe probate thereof, and to allow and record foreignwills;
2. To grant letters testamentary, of administration andof guardianship, and to revoke the same;
3. To appoint appraisers of estates of deceased personsand of minors and incapacitated persons;
4. To compel personal representatives and guardians torender accounts;
5. To order the sale of property of estates, or belongingto minors or to incapacitated persons;
6. To order the payments of debts from estates orguardianships;
7. To order and regulate all distribution of property orestates of deceased persons;
8. To compel the attendance of witnesses and theproduction of title deeds, papers, and other property ofan estate, or of a minor, or incapacitated persons;
9. To exercise all the powers conferred by this chapteror by other law;
10. To make such orders as may be necessary to theexercise of the powers conferred upon it; and
11. To appoint and remove guardians for infants, andfor persons insane or who are otherwise incapacitatedpersons; to compel payment and delivery by them ofmoney or property belonging to their wards, to controltheir conduct and settle their accounts.
B. The district court which has jurisdiction and venueof the administration of any estate is granted jurisdictionand venue to cause Oklahoma and federal estate taxes to beequitably apportioned and collected.
C. The district court which has jurisdiction and venueof the administration of any estate is granted unlimitedconcurrent jurisdiction and venue to hear and determine:
1. In whom the title to any property is vested, whetherthe property is real, personal, tangible, intangible, orany combination thereof;
2. Rights with respect to such property as to all personsand entities;
3. Whether or not such property is subject to thejurisdiction of the court in the decedent's estate; and
4. Issues relating to trusts or issues involving aguardian or ward that may arise.
D. For proceedings under subsection C of this section,service of notice and process shall be required as in othercases and the provisions of the Oklahoma Pleading Code,Section 2001 et seq. of Title 12 of the Oklahoma Statutes,shall be followed.
§ 5. Venue of probate acts Wills must be proved, and letters testamentary or ofadministration granted in the following applicablesituations:
1. In the county of which the decedent was a resident atthe time of his death, regardless where he died.
2. In the county in which the decedent died, leaving anestate therein, the deceased not being a resident of thisstate.
3. In the county in which any part of the estate of thedeceased may be, where the decedent died out of thisstate, and the decedent was not a resident of this state atthe time of his death.
4. In the county in which any part of the estate may beand the decedent was not a resident of this state, butdied within it, and did not leave an estate in the countyin which he died.
5. In all other cases, in the county where application forletters is first made.
§ 6. Venue in certain cases When the estate of the decedent is in more than onecounty, he having died out of the state, and not having beena resident thereof at the time of his death, or being suchnonresident and dying within the state, and not leavingestate in the county where he died, the district court of thatcounty in which application is first made for letterstestamentary or of administration, has exclusive jurisdictionof the settlement of the estate.
§ 7. Jurisdiction coextensive with state The district court of the county in which application isfirst made for letters testamentary or of administration inany of the cases above mentioned, shall have jurisdictioncoextensive with the state in the settlement of the estate ofthe decedent and the sale and distribution of his real estateand excludes the jurisdiction of the district court of everyother county.
§ 8. Transfer of old matters authorized When it is made to appear that any probate matterpending in any court of this state which, by Acts ofCongress and the Constitution, was transferred from thecourts of the Territory of Oklahoma and the United Statescourts in the Indian Territory to the courts of this state, isnot in the county where the venue of such suit, matter orproceeding would lie if arising after the admission of thisstate into the Union, the court where such suit, matter orproceeding is pending shall, upon the application of the
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guardian, executor or administrator, or any other personhaving a substantial interest therein, or upon its ownmotion, when a proper showing has been made for aremoval, within twenty (20) days after application is madetherefor, make an order transferring such suit, matter orproceeding to the county where the venue would properlylie if such suit, matter or proceeding had arisen since theadmission of this state into the Union, by transmitting tosuch county the original papers, together with certifiedcopies of all orders and judgments, upon the payment of allaccrued costs: Provided, that where any minor is the ownerof an estate situate in a county or in counties other than thatof his domicile and a guardian or curator has heretoforebeen appointed for such minor or his estate in any suchcounty other than that of the domicile of such minor, suchsuit, matter or proceedings shall be transferred in themanner and upon the conditions herein provided, to thecounty of the domicile of such minor; And provided,further, that such original papers, together with suchcertified copies of all orders and judgments, shall be filedin the court to which such matter is removed, and the sameshall proceed as if ordinarily filed therein, without furtherservice of notice.
§ 9. Transfers already made legalized All transfers of records, suits or proceedings of aprobate nature which, by Acts of Congress and theConstitution, were transferred from the Territory ofOklahoma and the United States courts in the IndianTerritory to the courts of this state, and thereaftertransferred to another county, where such county wouldhave been the proper venue had such suit, matter orproceeding, been commenced after the admission of thisstate into the Union, are hereby legalized; and no sale orother proceeding by the court to which such suit, matter orproceeding has been transferred shall be void because ofsuch transfer.
§ 10. Transfer to county of domicile of minor or ward In any case where it is shown to the court that thedomicile of a minor or ward has been changed from thecounty where the guardianship is pending to anothercounty in this state, the guardianship may, upon applicationverified by oath, after notice has been given to the next ofkin of such minor or ward and upon good cause shown, beremoved to such other county, which would be the propervenue, in the manner and upon the conditions prescribed inthe second preceding section for the transfer of suits,matters or proceedings if the court finds that the domicileof the minor or ward has been changed in good faith andthat such transfer would be for the best interest of suchminor or ward.
§ 11. Personal representative defined As used in this title, "personal representative" includesexecutor, administrator, administrator with will annexed,conservator, guardian and persons who performsubstantially the same function under the law governingtheir status and includes a successor personal representativeappointed to succeed a previously appointed personalrepresentative.
Chapter 2. Probate of Wills
§ 21. Custodian of will to deliver same to district court Every custodian of a will, within thirty (30) days afterreceipt of information that the maker thereof is dead, mustdeliver the same to the district court having jurisdiction ofthe estate, or to the executor named therein. A failure tocomply with the provisions of this section makes the personfailing responsible for all damages sustained by any oneinjured thereby.
§ 22. Who may petition court for proof of will Any executor, devisee or legatee named in a will, orany other person interested in the estate, may at any timeafter the death of the testator, petition the court havingjurisdiction to have the will proved, whether the same be inwriting, in his possession or not, or is lost or destroyed, orbeyond the jurisdiction of the state, or a nuncupative will.
§ 23. Requisites of petition for probate A petition for the probate of a will must show:
1. the jurisdictional facts;
2. whether the person named as executor consents toact, or renounces his right to the letters testamentary;
3. the names, ages, and residence of the heirs, legatees,and devisees of the decedent, so far as known to thepetitioner;
4. the probable value and character of the property ofthe estate;
5. the name of the person for whom letters testamentaryare prayed.
The petition for the probate of a will must be in writingand signed by the applicant or his counsel.
No defect of form, or in the statement of jurisdictionalfacts actually existing, shall make void the probate of awill.
§ 24. Court may compel production of will by onehaving possession If it be alleged in the petition that the will is in thepossession of a third person and the court is satisfied thatthe allegation is correct, an order must be issued and servedupon the person having possession of the will, requiringhim to produce it in the court at the time named in theorder. If he has possession of the will and neglects orrefuses to produce it in obedience to the order, he may bywarrant of the court be committed to the jail of the county,and kept in close confinement until he produces it.
§ 24.1. Preservation of original will--Removal fromcustody Upon the filing of a petition for the probate of a willand upon the production of the will, the clerk of the districtcourt shall safely preserve the original will and shall notpermit it to be removed from the county courthousebuilding until after a photographic, photostatic or certifiedcopy thereof has been filed in the court; provided, however,that after such copy is prepared and filed, the judge of the
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district court may, for good cause shown and upon writtenorder filed with the court clerk, permit the original will tobe removed from the courthouse building.
§ 25. Hearing--Notice, how given When a petition for probate of a will is filed, the courtmust fix a day for hearing the petition, not less than ten(10) nor more than thirty (30) days from the date of filingof the petition, and if the names and addresses of all heirs,legatees, and devisees of the testator are known to thepetitioner and are set out in the petition, the court shallcause notice of such hearing to be given as provided inSection 34 of this title, by mailing copies of the notice toall heirs, legatees, and devisees, other than devisees andlegatees whose devises and bequests are conditioned uponanother named person's predeceasing the testator inaccordance with terms stated in the will and such namedperson did not predecease the testator in accordance withterms stated in the will, postage prepaid, at their last-knownplace of residence not less than ten (10) days prior to thedate of the hearing; provided, however, if the name oraddress of one or more heirs, legatees, or devisees of thetestator is not known to the petitioner, or if one or moreheirs, legatees, or devisees of the testator are alleged tohave survived the testator but died prior to the filing of thepetition and the petitioner alleges that he knows of nopersonal representative for the decedents' estates, notice ofthe hearing of the petition shall be given by mailing, asabove provided, and, in addition thereto, the notice shall bepublished in one issue of a newspaper, and in such case thehearing shall not be less than ten (10) days from the date ofpublication of the notice. For purposes of this section, if alegatee or devisee is the trustee of an express trust ortestamentary trust, notice need be given only to the trusteeand not to the beneficiaries of the trust unless thebeneficiaries are otherwise entitled to notice as heirs or aslegatees or devisees of property not devised or bequeathedto the trust.
§ 26. Heirs, legatees, devisees and executors to be givennotice by mail Written or printed copies of the notice of the timeappointed for the probate of the will, must be addressed tothe heirs, legatees and devisees of the testator, at theirplaces of residence, if known to the petitioner, anddeposited in the post office, with the postage thereonprepaid by the petitioner, at least ten (10) days before thehearing; the notice must be issued by the judge over theseal of the court. Proof of the mailing of the notice must bemade at the hearing; the same notice and proof of servicethereof on the person named as executor must be made ifhe be not the petitioner; also on any person named ascoexecutor, not petitioning, if his place of residence beknown.
§ 27. Powers of judge at chambers The judge of the district court may, at any time, receivepetitions for the probate of wills, make and issue allnecessary orders and writs to enforce the production ofwills and the attendance of witnesses, hear petitions, trialsof issues, admit wills to probate, and do all other thingscoming under his probate jurisdiction.
§ 28. Proof of notice--Waiver of notice At the time appointed for the hearing, or at the time to
which the hearing may have been postponed, the court,unless the parties appear, must require proof that the noticehas been given, which being made, the court must heartestimony in proof of the will. If such notice is not provedto have been given, or if from any other cause it isnecessary, the hearing may be postponed to a day certain.The appearance in court of parties interested is a waiver ofnotice.
§ 29. Contest before probate--Persons entitled Any person interested may appear and contest the will.Devisees, legatees or heirs of an estate may contest the willthrough their guardians or attorneys appointed bythemselves, or by the court for that purpose; but a contestmade by an attorney appointed by the court does not bar acontest, after probate, by the party so represented, ifcommenced within three (3) months from the date the willwas admitted to probate; nor does the nonappointment ofan attorney by the court of itself invalidate the probate of awill.
§ 30. Admission on testimony of one subscribing witness If no person appears to contest the probate of a will, thecourt may admit it to probate on the testimony or affidavitgiven after the will has been filed of one of the subscribingwitnesses only if satisfied from the testimony or affidavit ofsuch witness that the will was executed in all particulars asrequired by law, and that the testator was of sound mind atthe time of its execution. This section shall not apply toself-proved wills as described in Title 84 O.S., Section 55.
§ 31. Olographic will, how proved An olographic will may be proved in the same mannerthat other private writings are proved.
§ 32. Notices required to be published once each weekfor two or more consecutive weeks--Interval When notice is required by this act to be publishedonce each week for two (2) or more consecutive weeks, theinterval between the first publication and each successivepublication shall be not less than six (6) days.
§ 33. "Newspaper" defined Wherever the term "newspaper" appears herein, it shallmean newspaper as defined by 25 O.S.1961, § 106, asamended by Section 1, Chapter 63, O.S.L.1967 (25O.S.Supp.1968, § 106), and by House Bill No. 1253, FirstSession, Thirty-second Legislature of the State ofOklahoma.
§ 34. Mailing and proof of mailing--Persons authorizedto make When mailing is required by Section 21 et seq. of thistitle, the mailing shall be made by the court clerk or adeputy court clerk or by the attorney for the party and proofof the mailing shall be by affidavit of the court clerk ordeputy court clerk or attorney filed in the case. Any mailingmade pursuant to this section after June 22, 1988, which isin compliance with the provisions of this section at the timethis act becomes effective, shall be deemed to be incompliance with this section.
§ 41. Proceedings on contest If anyone appears to contest the will, he must filewritten grounds of opposition to the probate thereof, and
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serve a copy on the petitioner and other residents of thecounty interested in the estate, any one or more of whommay demur thereto upon any of the grounds of demurrerallowed by law in civil actions. If the demurrer besustained, the court must allow the contestant a reasonabletime, not exceeding ten (10) days, within which to amendhis written opposition. If the demurrer is overruled, thepetitioner and others interested may jointly or separatelyanswer the contestant's grounds, traversing or otherwiseobviating or avoiding the objections. Any issues of factthus raised, involving:
1. The competency of the decedent to make a last willand testament.
2. The freedom of the decedent at the time of theexecution of the will from duress, menace, fraud, orundue influence.
3. The due execution and attestation of the will by thedecedent or subscribing witnesses; or,
4. Any other questions substantially affecting thevalidity of the will must be tried and determined by thecourt.
On the trial the contestant is plaintiff, and the petitioneris defendant.
§ 42. Judgment--Recording The district court, after hearing the evidence onpetitions for the probate of wills, must set forth its findingsof fact and conclusions of law in writing and render ajudgment based upon such findings, either admitting, orrefusing to admit, the will to probate. The judgment and thewill must be recorded where the will is admitted to probate.
§ 43. Witnesses on trial of contest--Depositions If the will is contested, all the subscribing witnesseswho are present in the county, and who are of sound mind,must be produced and examined; and the death, absence orinsanity of any of them must be satisfactorily shown to thecourt. If none of the subscribing witnesses reside in thecounty, and are not present at the time appointed forproving the will, or although such witnesses reside in thecounty and are insane or incompetent, and such facts arefirst made to appear to the court, either in contested ornoncontested will cases, the court may admit the testimonyof other witnesses to prove the sanity of the testator and theexecution of the will and, as evidence of the execution, itmay admit proof of the handwriting of the testator and ofthe subscribing witnesses, or any of them. Provided thatwhen the testimony of any nonresident witness or witnessesresiding out of the county wherein any will is sought to beadmitted to probate, may be desired, touching the executionof such will, either in contested or noncontested will cases,it shall be lawful for the party seeking to have such willadmitted to probate, or resisting the same in the districtcourt, to cause the deposition of such witness to be taken inlike manner, as now is or hereafter may be provided in civilcases; and the court may, in its discretion, direct theoriginal of such will to be attached to any commissionissued in such case; and the deposition of any such witnesstaken, certified and returned, according to law, shall be oflike force and effect as if his testimony had been heard inthe court; provided, that before any such original will shall
be suffered to be attached to any such commission, aphotostatic or certified copy thereof shall be made andexamined, and certified by the judge to be a true copy ofthe original, and until the return of such original, such copyshall be retained in the office of the judge, in lieu of suchoriginal will; and if such will be admitted to probate, thesame may, in case of the loss or destruction of the originalthereof, be recorded from such certified copy. Provided,further, that in all cases where wills have heretofore beenproved in substantial compliance with the provisionshereof, such proof is hereby validated.
§ 44. Recording of testimony--Admissibility The testimony of any witness or witnesses admitted at ahearing on a petition to probate a will shall be recorded inone of the following methods:
(a) filing with the court clerk a written summary of thetestimony, subscribed and sworn to by each witness inthe presence of a judge having jurisdiction of probatematters; or
(b) having the testimony taken down verbatim inshorthand, stenotype, or any other method approved bythe court; or
(c) having the testimony recorded verbatim by a soundrecorder approved by the court; or
(d) having the testimony recorded verbatim by anofficial court reporter.
If the testimony is recorded by one of the methodsdescribed in subdivisions (b) or (c), the same shall betranscribed, subscribed and sworn to by each witness, andfiled with the court clerk. If the testimony is recorded bythe method described in subdivision (d), the same shall betranscribed and certified by the official court reporter whotook the testimony, and filed with the clerk of the court.Such evidence shall be admissible in any subsequentproceedings concerning the validity of the will, or thesufficiency of the proof if the subscribing witness is dead,or has permanently left this state.
§ 51. Foreign wills recorded Every will duly proved and allowed in any of theterritories, or in any of the United States or the District ofColumbia, or in any foreign country or state, may beallowed and recorded in the district court of any county inwhich the testator shall have left any estate, or any estatefor which claim is made.
§ 52. Petition--Hearing--Notice--Summaryadministration
A. When a copy of the will and the order or decreeadmitting same to probate, duly certified, shall be producedby the executor, or by any other person interested in thewill, with a petition for letters, the same must be filed, andthe court or judge must appoint a time for the hearing,notice whereof must be given as provided for an originalpetition for the probate of a will.
B. Regardless of the value of the estate, any willadmitted to probate in another jurisdiction may be admittedto probate and administered under the proceduresprescribed pursuant to Section 241 or 245 of this title.
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§ 53. Proof required If, on the hearing, it appears upon the face of the recordthat the will has been proved, allowed and admitted toprobate in any of the territories, or any state of the UnitedStates, the District of Columbia, or in any foreign countryor state, and that it was executed according to the law of theplace in which the same was made, or in which the testatorwas at the time domiciled, or in conformity with the laws ofthis state, it must be admitted to probate, be certified in likemanner according to the facts, and recorded, and have thesame force and effect as a will first admitted to probate inthis state, and letters testamentary or of administrationissued thereon.
§ 61. Causes for contesting will after probate When a will has been admitted to probate, any personinterested therein may at any time within three (3) monthsfrom the date the will was admitted to probate contest thesame or the validity of the will. For that purpose he mustfile in the court in which the will was proved a swornpetition in writing containing his allegations, that evidencediscovered since the probate of the will, the material factsof which must be set forth, shows:
1. That a will of a later date than the one proved by thedecedent, revoking or changing the will, has beendiscovered, and is offered; or
2. That some jurisdictional fact was wanting in theprobate; or
3. That the testator was not competent, free fromduress, menace, fraud, or undue influence when thewill allowed was made; or
4. That the will was not duly executed and attested.
§ 62. Citations--To whom issued Upon filing the petition, a citation must be issued to theexecutors of the will, or to the administrators with the willannexed, and to all the legatees and devisees mentioned inthe will, and heirs residing in the state, so far as known tothe petitioner, or to their guardian, if any of them areminors or adjudicated incompetents, or their personalrepresentatives, if any of them are dead, requiring them toappear before the court on some day therein specified, toshow cause why the probate of the will should not berevoked. A copy of such citation shall be mailed to all suchpersons, nonresidents of the state, whose addresses areknown to petitioner, at least ten (10) days before suchhearing.
§ 63. Petition and notices when another will offered If another will be offered by the petition, it must showall that is required in the original case of a petition for theprobate of a will, and notice must be given as requiredbefore the hearing of proof of any will originally: provided,that such notice need not be given to any persons uponwhom the citation required in the preceding section is to beserved.
§ 64. Hearing and judgment--New will, admitting toprobate At the time appointed for showing cause, or at any timeto which the hearing is postponed, personal service of the
citations having been made upon the persons namedtherein, and the required publication, posting and service ofthe notices having been made, and all duly proved, thecourt must proceed to try the issues joined in the samemanner as in an original contest of a will. If upon hearingthe proofs of the parties the court shall decide that the willis, for any of the reasons alleged, invalid, or that it is notproved to be the last will of the testator, the probate mustbe annulled and revoked; and if the court shall decide thatthe new will is valid, it may admit the same to probate inthe same manner as originally upon the probate of acontested will.
§ 65. Result of revocation Upon the revocation being made, the powers of theexecutor or administrator with the will annexed, mustcease; but such executor or administrator shall not be liablefor any act done in good faith previous to the revocation.
§ 66. Costs of contest The fees and expenses must be paid by the partycontesting the validity or probate of the will, if the will inprobate be confirmed. If the probate be annulled andrevoked, the costs must be paid by the party who resistedthe revocation, or out of the property of the decedent, as thecourt directs.
§ 67. Probate conclusive, when If no person, within three (3) months after theadmission to probate of a will, contests the same or thevalidity thereof, the probate of the will is conclusive,saving to infants and persons of unsound mind, a period ofone (1) year after their respective disabilities are removed.
§ 81. Proceedings in case of lost will Whenever any will is lost or destroyed, the court musttake proof of the execution and validity thereof andestablish the same, notice to all heirs, legatees and deviseesbeing first given, as prescribed in regard to proofs of willsin other cases. All the testimony given must be reduced towriting, signed by the witnesses, filed and preserved.
§ 82. Special requisites of proof No will shall be proved as a lost or destroyed will,unless the same is proved to have been in existence at thetime of the death of the testator or is shown to have beenfraudulently destroyed in the lifetime of the testator, norunless its provisions are clearly and distinctly proved by atleast two credible witnesses. For purposes of this section, acopy of the alleged lost or destroyed will can be admittedinto evidence, whether or not the copy reflects the signatureor signatures appearing on the original will, if the copy isproperly identified, and the court shall determine whatprobative value, if any, is to be assigned to such copy.
§ 83. Court's certificate--Filing--Letters testamentary When a lost or destroyed will is established, theprovisions thereof must be distinctly stated and certified bythe judge of the district court, under his hand and the sealof the court, and the certificate must be filed and recordedas wills are filed and recorded, and letters testamentary orof administration with the will annexed, must be issuedthereon in the same manner as upon wills produced andduly proved; if the court has admitted into evidence a copyof the lost or destroyed will and finds that the copy
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distinctly states the provisions of the will, the court maycertify the copy of the will as distinctly stating theprovisions of the will; the testimony must be reduced towriting; signed, certified and filed as in other cases, andshall be admissible as evidence in any subsequentproceeding.
§ 84. Restraint of former administration If before or during the pendency of an application toprove a lost or destroyed will, letters of administration aregranted on the estate of the testator, or letters testamentaryof any previous will of the testator are granted, the courtmay restrain the administrators or executors so appointedfrom any acts or proceedings which would be injurious tothe legatees or devisees claiming under the lost ordestroyed will.
§ 91. Nuncupative wills, how proved Nuncupative wills may, at any time within six (6)months after the testamentary words are spoken by thedecedent, be admitted to probate on petition and notice asprovided for the probate of wills executed in writing. Thepetition, in addition to the jurisdictional facts, must allegethat the testamentary words, or the substance thereof, werereduced to writing within thirty (30) days after they werespoken, which writing must accompany the petition.
§ 92. Nuncupative wills--Special requirements The district court must not receive or entertain apetition for the probate of a nuncupative will until the lapseof fourteen (14) days from the death of the testator, normust such petition be at any time acted on, unless thetestamentary words are or their substance is, reduced towriting and filed with the petition, nor until the survivinghusband or wife, if any, and all other persons resident inthe state or county, interested in the estate, are notified, asprovided herein.
§ 93. Proceedings in contest Contests of the probate of nuncupative wills andappointments of executors and administrators of the estatedevised thereby must be had, conducted and made ashereinbefore provided in cases of the probate of writtenwills: Provided, that double the period allowed for thepetition of revocation of the probate of a written will shallbe allowed in which to petition for the revocation andannulling of the nuncupative will.
§ 241. Dispensing with regular proceedings in estatesunder $150,000--Notice to creditors and notice ofhearing--Procedure
A. If, upon filing a petition for probate and after theappointment of the personal representative, it appears thatthe value of the real and personal property in the estatedoes not exceed One Hundred Fifty Thousand Dollars($150,000.00), the court shall order the personalrepresentative to make an inventory of the estate, and thecourt shall appoint appraisers unless the court determinesthat appraisement is not necessary.
B. If, upon return of the inventory of the estate of thedecedent, and appraisement of the estate if required, itappears that the value of the whole estate, both real andpersonal property, does not exceed One Hundred FiftyThousand Dollars ($150,000.00), and upon application of
the personal representative, the court shall dispense withthe regular proceedings or any part thereof prescribed bylaw, and the court shall order notice to creditors, and issueorder for hearing upon the final accounting and petition fordetermination of heirship, distribution and discharge;provided, nothing herein shall affect the lien upon anyproperty for any estate or transfer tax which may be dueupon the estate of the decedent.
C. Notice to creditors and notice of hearing upon thefinal accounting and petition for determination of heirship,distribution and discharge shall be published once eachweek for two (2) consecutive weeks in some newspaper ofgeneral circulation, published in the county where theprobate is filed. If there is no legal newspaper in a county,then all such notices required by this subsection shall bepublished in a legal newspaper in an adjoining countyhaving a legal newspaper. Notice to creditors and notice ofhearing upon the final accounting, determination ofheirship, distribution and discharge may be combined inone notice, referred to as a "combined notice". The noticeto creditors or combined notice shall be mailed to creditorsof the decedent as provided in Sections 331 and 331.1 ofthis title. Creditors shall file claims against the estate withthe personal representative or the attorney for personalrepresentative within thirty (30) days after the publicationof the notice. Notice of the hearing or the combined noticeshall be mailed to all persons interested in the estate of thedecedent at their respective last-known addresses not lessthan ten (10) days prior to the date of the hearing, and thenotice shall set forth a date by which final account andpetition for distribution will be filed. The date of the filingshall precede by at least five (5) days the order allowingfinal accounting, determination of heirs, and of legateesand devisees, if any, and distribution.
D. The matter shall be set for hearing not less thanthirty-five (35) days following the first publication ofnotice to creditors or combined notice, and upon thehearing the court shall, after proof of payment of funeralexpenses, expenses of last sickness and of administrationand allowed claims, issue an order allowing the finalaccounting, determining heirship and the legatees anddevisees, if any, of the decedent, distributing the propertyof the estate and discharging the personal representativeand surety or sureties on the personal representative's bond,or defer such discharge if in the discretion of the court suchdeferral is necessary or desirable.
Chapter 6. Homestead and Family Allowance
§ 311. Property to be delivered to the family--Homestead Upon the death of either husband or wife, the survivormay continue to possess and occupy the whole homestead,which shall not in any event be subject to administrationproceedings, except as in this title provided, until it isotherwise disposed of according to law; and upon the deathof both husband and wife the children may continue topossess and occupy the whole homestead until the youngestchild becomes of age. The title to the land set apart for thehomestead property shall pass, subject to the right ofhomestead, the same as other property of the decedent andshall be included in the decree of distribution. And in
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addition thereto, the following property must beimmediately delivered by the executor or administrator tosuch surviving wife or husband, and child or children, andis not to be deemed assets, namely:
1. All family pictures.
2. A pew or other sitting in any house of worship.
3. A lot or lots in any burial ground.
4. The family Bible and all school books used by thefamily, and all other books used as part of the familylibrary, not exceeding in value of One Hundred Dollars($100.00).
5. All wearing apparel and clothing of the decedent andhis family.
6. The provisions for the family necessary for one (1)year's supply, either provided or growing, or both; andfuel necessary for one (1) year.
7. All household and kitchen furniture, includingstoves, beds, bedsteads and bedding.
No such property shall be liable for any prior debts orclaims whatever.
§ 312. Exempt property also allowed family In addition to the property mentioned in the precedingsection, there shall also be allowed and set apart to thesurviving wife or husband, or the minor child or children ofthe decedent, all such personal property or money as isexempt by law from levy and sale on execution or otherfinal process from any court, to be, with the homestead,possessed and used by them, and no such property shall beliable for any prior debts or claims against the decedent,except, when there are no assets thereunto available, for thepayment of the necessary expenses of his last illness,funeral charges and expenses of administration.
§ 313. Homestead exempt from debt or liability The homestead is not subject to the payment of anydebt or liability contracted by or existing against thehusband and wife, or either of them, previous to or at thetime of the death of such husband or wife, except such asare secured by lien thereon, as provided in the laws relatingto homesteads.
§ 314. Additional allowance for maintenance duringsettlement of estate If the amount set apart as aforesaid be less than thatallowed, and insufficient for the support of the survivingspouse and children, or either, or, if there be no suchpersonal property to be set apart, and if there be other estateof the decedent, the court may in its discretion make suchreasonable allowance out of the estate as shall be necessaryfor the maintenance of the family, according to theircircumstances during the progress of the settlement of theestate, which, in case of an insolvent estate, must not belonger than one (1) year after granting letters testamentary,or of administration.
§ 315. Allowance a preferred claim Any allowance made by the court in accordance with
the provisions of this article must be paid in preference toall other charges, except funeral charges or expenses ofadministration, and any such allowance, whenever made,may, in the discretion of the court, take effect from thedeath of the decedent.
§ 316. Who entitled to property set apart A. When personal property is set apart for the use ofthe family, in accordance with the provisions of this article,if the decedent left a widow or surviving husband, and nominor child, such property is the property of the widow orsurviving husband. If the decedent left also a minor child,the one-half ( 1/2 ) of such property shall belong to thewidow or surviving husband, and the other half to theminor child; and if the decedent left more than one minorchild, the one-third ( 1/3 ) of such property shall belong tothe widow or surviving husband and the remainder in equalshares to the minor children, and if the decedent left nowidow or surviving husband, such property shall belong tothe minor child, or, if more than one minor child, to themin equal parts. This subsection shall not apply to the estateof a decedent who dies on or after July 1, 1985.
B. This subsection shall apply to the estate of adecedent who dies on or after July 1, 1985. When personalproperty is set apart for the use of the family, in accordancewith the provisions of Sections 311 through 315 of thistitle, if the decedent leaves a surviving spouse, and nominor child, such property is the property of the survivingspouse. If the decedent leaves a surviving spouse and aminor child or children, one-half ( 1/2 ) of such propertyshall belong to the surviving spouse and the remainder tothe minor child, or if more than one minor child, to them inequal parts. If the decedent leaves no surviving spouse,such property shall belong to the minor child, or, if morethan one minor child, to them in equal parts.
§ 318. When widow has independent income If the widow has a maintenance derived from her ownproperty equal to the portion set apart to her by thepreceding sections of this article, the whole property so setapart, other than her right in the homestead, must go to theminor children.
Chapter 16. Uniform Simultaneous Death
Act § 1001. Disposition of property upon insufficientevidence of survivorship Where the title to property or the devolution thereofdepends upon priority of death of two or more persons andthere is no sufficient evidence to establish that the personshave died otherwise than simultaneously, the property ofeach person shall be disposed of as if he had survived,except as provided otherwise in this act.
§ 1002. BeneficiariesIf property is so disposed of that the right of a
beneficiary to succeed to any interest therein is conditionalupon his surviving another person, and both persons die,and there is no sufficient evidence to establish that the twohave died otherwise than simultaneously, the beneficiaryshall be deemed not to have survived. If there is nosufficient evidence to establish that two or more
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beneficiaries have died otherwise than simultaneously andproperty has been disposed of in such a way that at the timeof their death each of such beneficiaries would have beenentitled to the property if he had survived the others, theproperty shall be divided into as many equal portions asthere were such beneficiaries and these portions shall bedistributed respectively to those who would have taken inthe event that each of such beneficiaries had survived.
§ 1003. Joint tenants or tenants by the entiretyWhere there is no sufficient evidence to establish that
the two joint tenants or tenants by the entirety have diedotherwise than simultaneously, the property so held shallbe distributed one-half ( 1/2 ) as if one had survived andone-half ( 1/2 ) as if the other had survived. If there aremore than two joint tenants and all of them have so died theproperty thus distributed shall be in the proportion that onebears to the whole number of joint tenants. The term "jointtenants" includes owners of property held undercircumstances which entitled one or more to the whole ofthe property on the death of the other or others.
§ 1004. Husband and wifeWhere a husband and wife have died, leaving
community property, and there is no sufficient evidence toestablish that they have died otherwise thansimultaneously, one-half ( 1/2 ) of all the communityproperty shall pass as if the husband had survived and as ifsaid one-half ( 1/2 ) were his separate property, and theother one-half ( 1/2 ) thereof shall pass as if the wife hadsurvived and as if said other one-half ( 1/2 ) were herseparate property.
§ 1005. Life or accident policies--Annuitycontracts--Distribution of proceeds
Where the insured or the annuitant and the beneficiaryin a policy of life or accident insurance or in an annuitycontract have died and there is no sufficient evidence toestablish that they have died other than simultaneously, theproceeds of the policy or contract shall be distributed as ifthe insured or annuitant had survived the beneficiary,except if the policy or contract is community property ofthe insured or annuitant and his spouse, and there is noalternative beneficiary, or no alternative beneficiary exceptthe estate or personal representatives of the insured, theproceeds shall be distributed as community property underSection 4.
§ 1006. Inapplication in certain casesThis act shall not apply in the case of wills, living
trusts, deeds, or contracts of insurance or annuity, or anyother instrument wherein provision is made for distributionof property different from the provisions of this act, orwhere provision is made for a presumption as tosurvivorship which results in a distribution of propertydifferent from that here provided, in all of which cases theprovisions of such instrument shall be given effect.
§ 1007. Construction and interpretationThis act shall be so construed and interpreted as to
effectuate its general purpose to make uniform the law inthose states which enact it.
§ 1008. CitationThis act may be cited as the Uniform Simultaneous
Death Act.
CHAPTER 17A. UNIFORM DURABLE POWER OFATTORNEY ACT
§ 1071. Short titleSections 1071 through 1077 of this title shall be known
and may be cited as the "Uniform Durable Power ofAttorney Act".
§ 1072. DefinitionA durable power of attorney is a power of attorney by
which a principal designates another his attorney-in-fact inwriting and the writing contains the words "This power ofattorney shall not be affected by subsequent disability orincapacity of the principal, or lapse of time," or "Thispower of attorney shall become effective upon thedisability or incapacity of the principal," or similar wordsshowing the intent of the principal that the authorityconferred shall be exercisable notwithstanding theprincipal's subsequent disability or incapacity, and, unlessit states a time of termination, notwithstanding the lapse oftime since the execution of the instrument.
§ 1072.1. Attributes of durable power ofattorney--Authority granted
A. The durable power of attorney may show or state:1. The fact of execution under the provisions of theUniform Durable Power of Attorney Act; [FN1]
2. The time and conditions under which the power is tobecome effective;
3. The extent and scope of the powers conferred; and
4. Who is to exercise the power, including anysuccessor attorney-in-fact if a prior appointedattorney-in-fact dies, ceases to act, refuses or is unableto serve, or resigns.
B. The power may grant complete or limited authoritywith respect to the principal's:
1. Person, including, but not limited to, health andmedical care decisions and a do-not-resuscitate consenton the principal's behalf, but excluding:
a. the execution, on behalf of the principal, of aDirective to Physicians, an Advance Directive forHealth Care, Living Will, or other documentpurporting to authorize life-sustaining treatmentdecisions, and
b. the making of life-sustaining treatment decisionsunless the power complies with the requirementsfor a health care proxy under the Oklahoma Rightsof the Terminally Ill or Persistently UnconsciousAct or the Oklahoma Do-Not-Resuscitate Act; and
2. Property, including homestead property, whetherreal, personal, intangible or mixed.
§ 1072.2. Execution--Witnesses--Presumptions--Validityof prior powers
A. A durable power of attorney may be executed inaccordance with the following provisions; provided,however, failure to execute a power of attorney as
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prescribed in this section shall not be construed to diminishthe effect or validity of an otherwise properly executeddurable power of attorney:
1. The principal shall sign the power of attorney at itsend, or, if the principal is unable, some other personshall subscribe his name thereto in his presence and byhis direction. The principal, or such other person, shallsign in the presence of two witnesses, each of whomshall sign his name in the presence of the principal andeach other;
2. The witnesses shall not be:a. under eighteen (18) years of age,
b. related to the principal by blood or marriage, or
c. the attorney-in-fact or anyone related to theattorney-in-fact by blood or marriage; and
3. The execution of the power of attorney shall be insubstantially the following form:
Signed: _________________________ (Principal's signature)
City, County, and State of Residence____________________________________________________________________________
The principal is personally known to me and I believe theprincipal to be of sound mind. I am eighteen (18) years ofage or older. I am not related to the principal by blood ormarriage, or related to the attorney-in-fact by blood ormarriage. The principal has declared to me that thisinstrument is his power of attorney granting to the namedattorney-in-fact the power and authority specified herein,and that he has willingly made and executed it as his freeand voluntary act for the purposes herein expressed.
Witness:________________________________________Witness:_________________________
STATE OF OKLAHOMA ) ) SS.COUNTY OF ____________________ )
Before me, the undersigned authority, on this ____ day of_______________, 19____, personally appeared____________________ (principal),_________________________ (witness), and_____________ (witness), whose names are subscribed tothe foregoing instrument in their respective capacities, andall of said persons being by me duly sworn, the principaldeclared to me and to the said witnesses in my presencethat the instrument is his or her power of attorney, and thatthe principal has willingly and voluntarily made andexecuted it as the free act and deed of the principal for thepurposes therein expressed, and the witnesses declared tome that they were each eighteen (18) years of age or over,and that neither of them is related to the principal by bloodor marriage, or related to the attorney-in-fact by blood ormarriage. ______________________________
Notary PublicMy Commission Expires:______________________________
B. Execution of a durable power of attorney insubstantially the form prescribed by this section shall createa presumption that the principal understands the nature andpurpose of the power of attorney and has executed the samewhile being of sound mind, and of his free will. A persondealing with the attorney-in-fact shall not be required toinquire into the validity or adequacy of the execution of thepower of attorney, nor shall any such person be required toinquire into the validity or propriety of any act of anattorney-in-fact apparently authorized by a power ofattorney executed pursuant to this section.
C. Notwithstanding the provisions of Section 26 ofTitle 16 of the Oklahoma Statutes, county clerks shallrecord any durable power of attorney executed insubstantially the form prescribed in subsection A of thissection.
D. All powers of attorney executed prior to September1, 1992, pursuant to the provisions of Sections 1051through 1062 of Title 58 of the Oklahoma Statutes or theUniform Durable Power of Attorney Act shall be valid. Alldurable powers of attorney established on or afterSeptember 1, 1992, shall be executed pursuant to theprovisions of the Uniform Durable Power of Attorney Act.
E. A power of attorney executed in another state shallbe considered valid for purposes of the Uniform DurablePower of Attorney Act if the power of attorney and theexecution of the power of attorney substantially complywith the requirements of the Uniform Durable Power ofAttorney Act.
F. Nothing in this section shall be construed to affectpowers of attorney established pursuant to common law.
§ 1073. Disability or incapacity of principal not affectingacts done pursuant to durable power of attorney
All acts done by an attorney-in-fact pursuant to adurable power of attorney during any period of disability orincapacity of the principal have the same effect and inure tothe benefit of and bind the principal and his successors ininterest as if the principal were competent and not disabled.
§ 1074. Relationship of court-appointed fiduciary andattorney-in-fact-- Principal's nomination of fiduciary
A. If, following execution of a durable power ofattorney, a court of the principal's domicile appoints aconservator, guardian of the estate, or other fiduciarycharged with the management of all of the principal'sproperty or all of his property except specified exclusions,the attorney-in-fact is accountable to the fiduciary as wellas to the principal. The fiduciary has the same power torevoke or amend the power of attorney that the principalwould have had if he were not disabled or incapacitated.
B. A principal may nominate, by a durable power ofattorney, the conservator, guardian of his estate, orguardian of his person for consideration by the court ifprotective proceedings for the principal's person or estateare thereafter commenced. The court shall make its
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appointment in accordance with the principal's most recentnomination in a durable power of attorney except for goodcause or disqualification.
§ 1075. Death, disability or incapacity ofprincipal--Effect on power of attorney
A. Death of the principal revokes and terminates thepower of attorney, provided however, the death of aprincipal who has executed a written power of attorney,durable or otherwise, does not revoke or terminate theagency as to the attorney-in-fact or other person, who,without actual knowledge of the death of the principal, actsin good faith under the power. Any action so taken, unlessotherwise invalid or unenforceable, binds successors ininterest of the principal.
B. The disability or incapacity of a principal who haspreviously executed a written power of attorney that is nota durable power does not revoke or terminate the agency asto the attorney-in-fact or other person, who, without actualknowledge of the disability or incapacity of the principal,acts in good faith under the power. Any action so taken,unless otherwise invalid or unenforceable, binds theprincipal and his successors in interest.
§ 1076. Affidavit of lack of knowledge of termination orrevocation of power of attorney
As to acts undertaken in good faith reliance thereon, anaffidavit executed by the attorney-in-fact under a power ofattorney, durable or otherwise, stating that he did not haveat the time of exercise of the power actual knowledge of thetermination of the power by revocation or of the principal'sdeath, disability, or incapacity, is conclusive proof of thenonrevocation or nontermination of the power at that time.If the exercise of the power of attorney requires executionand delivery of any instrument that is recordable, theaffidavit when authenticated for record is likewiserecordable. This section does not affect any provision in apower of attorney for its termination by expiration of timeor occurrence of an event other than express revocation or achange in the principal's capacity.
§ 1077. Construction and application of actThe Uniform Durable Power of Attorney Act shall be
applied and construed to effectuate its general purpose tomake uniform the law with respect to the subject of this act among states enacting it.
Chapter 20. Uniform Transfers to Minors Act § 1213. Powers and duties of custodians A. A custodian shall:
1. take control of custodial property;
2. register or record title to custodial property ifappropriate; and
3. collect, hold, manage, invest, and reinvest custodialproperty.
B. In dealing with custodial property, a custodian shallobserve the standard of care that would be observed by aprudent person dealing with property of another and is not
limited by any other statute restricting investments byfiduciaries. If a custodian has a special skill or expertise oris named custodian on the basis of representations of aspecial skill or expertise, the custodian shall use that skillor expertise. However, a custodian, in the custodian'sdiscretion and without liability to the minor or the minor'sestate, may retain any custodial property received from atransferor.
C. A custodian may invest in or pay premiums on lifeinsurance or endowment policies on:
1. the life of the minor only if the minor or the minor'sestate is the sole beneficiary, or
2. the life of another person in whom the minor has aninsurable interest only to the extent that the minor, theminor's estate, or the custodian in the capacity ofcustodian, is the irrevocable beneficiary.
D. A custodian at all times shall keep custodialproperty separate and distinct from all other property in amanner sufficient to identify it clearly as custodial propertyof the minor. Custodial property consisting of an undividedinterest is so identified if the minor's interest is held as atenant in common and is fixed. Custodial property subjectto recordation is so identified if it is recorded, and custodialproperty subject to registration is so identified if it is eitherregistered, or held in an account designated, in the name ofthe custodian, following in substance by the words: "as acustodian for ____________________ (name of minor)under the Oklahoma Uniform Transfers to Minors Act."
E. A custodian shall keep records of all transactionswith respect to custodial property, including informationnecessary for the preparation of the minor's tax returns, andshall make them available for inspection at reasonableintervals by a parent or legal representative of the minor orby the minor if the minor has attained the age of fourteen(14) years.
§ 1214. Rights, powers and authority of custodians overproperty A. A custodian, acting in a custodial capacity, has allthe rights, powers, and authority over custodial propertythat unmarried adult owners have over their own property,but a custodian may exercise those rights, powers andauthority in that capacity only.
B. The provisions of this section do not relieve acustodian from liability for breach of the provisions ofSection 13 of this act. § 1215. Delivery or payment to minor--Expenditures forminor's benefit A. A custodian may deliver or pay to the minor orexpend for the minor's benefit so much of the custodialproperty as the custodian considers advisable for the useand benefit of the minor, without court order and withoutregard to:
1. the duty or ability of the custodian personally or ofany other person to support the minor, or
2. any other income or property of the minor whichmay be applicable or available for that purpose.
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B. On petition of an interested person or the minor ifthe minor has attained the age of fourteen (14) years, thecourt may order the custodian to deliver or pay to the minoror expend for the minor's benefit so much of the custodialproperty as the court considers advisable for the use andbenefit of the minor.
C. A delivery, payment, or expenditure pursuant to theprovisions of this section is in addition to, not insubstitution for, and does not affect any obligation of aperson to support the minor.
Nontestamentary Transfer of PropertyAct
§ 1251Sections 1 through 8 of this act shall be known and
may be cited as the "Nontestamentary Transfer of PropertyAct”.
§ 1252A. An interest in real estate may be titled in
transfer-on-death form by recording a deed, signed by therecord owner of the interest, designating a granteebeneficiary or beneficiaries of the interest. The deed shalltransfer ownership of the interest upon the death of theowner. A transfer-on-death deed need not be supported byconsideration.
B. The signature, consent or agreement of or notice to agrantee beneficiary or beneficiaries of a transfer-on-deathdeed shall not be required for any purpose during thelifetime of the record owner.
§ 1253An interest in real estate is titled in transfer-on-death
form by executing, acknowledging and recording in theoffice of the county clerk in the county where the real estateis located, prior to the death of the owner, a deed insubstantially the following form:
___________________ (name of owner) being ofcompetent mind and having the legal capacity to executethis document, as owner transfers on death to____________________ (name of beneficiary) as granteebeneficiary, the following described interest in real estate:(here insert description of the interest in real estate). THISTRANSFER-ON-DEATH DEED IS REVOCABLE. ITDOES NOT TRANSFER ANY OWNERSHIP UNTILTHE DEATH OF THE OWNER. IT REVOKES ALLPRIOR BENEFICIARY DESIGNATIONS BY THISOWNER FOR THIS INTEREST IN REAL ESTATE. THEGRANTOR HAS THE RIGHT TO WITHDRAW ORRESCIND THIS DEED AT ANY TIME. ANYBENEFICIARY NAMED IN THIS DEED IS HEREBYADVISED THAT THIS DEED MAY BE WITHDRAWNOR RESCINDED WHETHER OR NOT MONEY ORANY OTHER CONSIDERATION WAS PAID ORGIVEN.
THE STATE OF OKLAHOMA
COUNTY OF ___________
Before me, on this day personally appeared __________,___________, and ___________, the owner of the landdescribed in this deed, and the witnesses, respectively,whose names are subscribed below in their respectivecapacities, and the owner of the land declared to me and tothe witnesses in my presence that the deed is a revocabletransfer-on-death of the real estate described therein, andthe witnesses declared in the presence of the owner of thereal estate and in my presence that the owner of the landdeclared to them that the deed is a revocabletransfer-on-death of the real estate described therein andthat the owner of the land wanted each of them to sign it asa witness, and that each witness did sign the same aswitness in the presence of the owner of the land and in mypresence. ____________________________________ (name of owner) ____________________________________ (witness) ____________________________________ (witness)
Subscribed and acknowledged before me by______________, the owner of the land, and_____________ and _______________, witnesses, this___ day of __________ (month), _____ (year). ____________________________ (signature of notary public)(Seal) My commission expires __________ (date). Instead of the words "transfer-on-death" the abbreviation"TOD" may be used.
§ 1254A. A designation of the grantee beneficiary may be
revoked at any time prior to the death of the record owner,by executing, acknowledging and recording in the office ofthe county clerk in the county where the real estate islocated an instrument revoking the designation. Thesignature, consent or agreement of or notice to the granteebeneficiary or beneficiaries to the revocation is notrequired.
B. A designation of the grantee beneficiary may bechanged at any time prior to the death of the record owner,by executing, acknowledging and recording a subsequenttransfer-on-death deed in accordance with theNontestamentary Transfer of Property Act. The signature,consent or agreement of or notice to the grantee beneficiaryor beneficiaries is not required. A subsequenttransfer-on-death beneficiary designation revokes all priordesignations of grantee beneficiary or beneficiaries by therecord owner for the interest in real estate.
C. A transfer-on-death deed executed, acknowledged
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and recorded in accordance with the NontestamentaryTransfer of Property Act may not be revoked by theprovisions of a will.
D. A transfer-on-death deed executed, acknowledgedand recorded in accordance with the NontestamentaryTransfer of Property Act may be disclaimed in whole or inpart or with reference to specific parts by the granteebeneficiary or beneficiaries. The disclaimer must occurwithin nine (9) months after the death of the landowner.The disclaimer shall be filed with the office of the countyclerk in which the transfer-on-death deed was recorded. If agrantee beneficiary exerts dominion over the real estatewithin the nine-month period, the disclaimer is waived.Dominion may be evidenced by acts including, but notlimited to, possession or the execution of any conveyance,assignment, contract, mortgage, security pledge, executorycontract for sale, option to purchase, lease, license,easement or right-of-way. A guardian, executor,administrator or other personal representative of a minor orlegally incompetent beneficiary may execute and file adisclaimer on behalf of the beneficiary within the time andin the manner in which the beneficiary could disclaim, ifthe guardian, executor, administrator or other personalrepresentative deems it in the best interests of and notdetrimental to the best interests of the beneficiary.
§ 1255A. Title to the interest in real estate recorded in
transfer-on-death form shall vest in the designated granteebeneficiary or beneficiaries on the death of the recordowner. The death of the record owner shall be evidenced bythe recording of an affidavit in the office of the countyclerk of the county where the real estate is located. Theaffidavit shall be executed by the grantee beneficiary orbeneficiaries. The affidavit shall state the fact of the deathof the record owner, state whether or not the record ownerand the designated grantee were husband and wife, andprovide the legal description of the real estate. The affidavitshall be notarized. If the record owner and designatedgrantee were not husband and wife, a copy of the deathcertificate of the record owner and an estate tax releaseshall be attached to the affidavit.
B. Grantee beneficiaries of a transfer-on-death deedtake the interest of the record owner in the real estate atdeath subject to all conveyances, assignments, contracts,mortgages, liens and security pledges made by the recordowner or to which the record owner was subject during thelifetime of the record owner including, but not limited to,any executory contract of sale, option to purchase, lease,license, easement, mortgage, deed of trust or lien, and toany interest conveyed by the record owner that is less thanall of the record owner's interest in the property.
C. If a grantee beneficiary dies prior to the death of therecord owner and an alternative grantee beneficiary has notbeen designated on the deed, the transfer shall lapse.
§ 1256A. A record joint owner of an interest in real estate may
use the procedures in the Nontestamentary Transfer ofProperty Act to title the interest in transfer-on-death form.However, title to the interest shall vest in the designatedgrantee beneficiary or beneficiaries only if the record joint
owner is the last to die of all of the record joint owners ofthe interest. A deed in transfer-on-death form shall notsever a joint tenancy.
B. As used in this section, "joint owner" means aperson who owns an interest in real estate as a joint tenantwith right of survivorship.
§ 1257A record owner who executes a transfer-on-death deed
remains the legal and equitable owner until the death of theowner and during the lifetime of the owner is considered anabsolute owner as regards creditors and purchasers.
§ 1258 A deed in transfer-on-death form, executed in
conformity with the Nontestamentary Transfer of PropertyAct, shall not be considered a testamentary disposition andshall not be invalidated due to nonconformity with otherprovisions in Title 58 or Title 84 of the Oklahoma Statutes.
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TITLE 60. PROPERTY
Chapter 2. Estates in Real Property
§74. Joint tenancy and tenancy by entirety A joint interest is one owned by several persons ineither real or personal property in equal shares, being ajoint title created by a single instrument, will or transferwhen expressly declared in the instrument, will or transferto be a joint tenancy, or as between husband and wife atenancy by entirety or joint tenancy as the grantor mayelect, or when granting or devising to executors or trusteesas joint tenants. A tenancy by entirety can only be createdbetween husband and wife.
Such joint tenancy or tenancy by entirety may becreated by transfer to persons as joint tenants or tenants byentirety from an owner or a joint owner to himself and oneor more persons, or from tenants in common to themselves,or by coparceners in voluntary partition, and such estatesmay be created by or for persons who have elected tobecome bound under any community property act now inexistence or which may hereafter be enacted. Anadjudication of incompetency shall not operate to terminatesuch an estate.
Where a deed, transfer or conveyance grants an estatein joint tenancy or tenancy by entirety in the grantingclause thereof, the granting clause shall control over thehabendum clause containing language inconsistent to thegranting clause.
In the event of the death of a joint tenant or tenant byentirety, leaving estate subject to probate, a certified copyof letters testamentary or of administration shall constituteprima facie evidence of such death.
The provisions of this act shall apply to all estates injoint tenancy or tenancy by entirety in either real orpersonal property heretofore or hereafter created.
Nothing herein contained shall prevent execution, levyand sale of the interest of the judgment debtor in suchestates and such sale shall constitute a severance. § 74.1 Partial invalidity The provisions of this act shall be severable and if anysection, subsection, sentence or clause of this act is for anyreason held to be invalid such holding shall not affect thevalidity of the remaining portions thereof.
§ 75. Reformation of interests violating rule againstperpetuities--Intent
Any interest in real or personal property that wouldviolate the rule against perpetuities shall be reformed, orconstrued within the limits of the rule, to give effect to thegeneral intent of the creator of that interest whenever thatgeneral intent can be ascertained. This provision shall beliberally construed and applied to validate such interest tothe fullest extent consistent with such ascertained intent.
§ 76. Construction in accordance with cy pres doctrineTo effectuate the provisions hereof, all courts of this
state are, within their otherwise jurisdictional limits, herebygranted the power to reform or construe interests in real orpersonal property, as provided in Section 1 hereof, inaccordance with the doctrine of cy pres.
Chapter 4. Uses and Trusts
§136. Requisites of a trust No trust in relation to real property is valid, unlesscreated or declared:
1. By a written instrument, subscribed by the grantor orby his agent thereto authorized by writing.
2. By the instrument under which the trustee claims theestate affected; or,
3. By operation of law.
§ 156. Deeds and conveyances--Words not giving noticeof existence of trust--Recorded written evidence A. The appearance of the words "trustee" or "as trustee"or "agent" following the names of the grantee in any deedof conveyance of land or other property, or an interesttherein, heretofore or hereafter executed, without otherlanguage showing a trust, shall not be deemed to givenotice to or put on inquiry any person dealing with saidproperty that a trust exists, or that there are otherbeneficiaries of said conveyance except the grantee namedtherein, and such conveyance shall vest the title to suchproperty in such grantee and a conveyance by such grantee,whether followed by the words "trustee" or "as trustee" or"agent" or not, shall vest title in his grantee free from anyclaims of all persons or corporations.
B. Subsection A of this section shall not apply if otherwritten evidence is recorded, whether before or after thegrantor's death, which establishes that an express trust doesexist with respect to property which the grantor hasconveyed by deed to his grantee followed by the words"trustee" or "as trustee" provided such other writtenevidence is recorded prior to conveyance of such propertyby such grantee.
§ 161. Property in which trustee may invest--Judgmentand care required Unless otherwise authorized, directed or restricted byorder of court or by the will, trust agreement, or otherdocument which is the source of the trust, the trustee mayinvest trust funds in any property, real, personal or mixed,in which an individual may invest the individual's ownfunds. In making investments, the trustee shall comply withthe provisions of the Oklahoma Uniform Prudent InvestorAct. The provisions of this section shall not be construed toauthorize a trustee to buy or sell property and investmentsfrom or to the trustee personally or to commingle trustfunds with the individual funds of the trustee.
§ 163. Retention of property originally received A trustee may retain in trust any property originallyreceived into the trust and any substitution therefor withoutliability for such retention.
§ 164. Trust as furtherance of public function The uses and purposes of the said Oklahoma Ordnance
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Works Authority Trust are hereby declared to be infurtherance of a public function and purpose and vital tothe public welfare of the people of Oklahoma, and allactions heretofore taken by said authority are hereby in allrespects approved and ratified.
§ 165. Acquisition of property It is hereby declared to be the intention and desire ofthe State of Oklahoma that the Oklahoma Ordnance WorksAuthority, as an agency of the State of Oklahoma, continueits negotiations with the General Services Administrationand complete the acquisition of said property for the useand benefit of the State of Oklahoma and its people.
§ 166. Appropriation It is hereby directed that the State Contingency andEmergency Fund Board allocate and pay over to theOklahoma Ordnance Works Authority Trust the sum ofOne Thousand Dollars ($1,000.00) in aid of suchacquisition, to be expended by said Oklahoma OrdnanceWorks Authority Trust for expenses necessarily incurred inthe acquisition and operation of said property.
§ 171. Trusts authorized--Powers of trustee Express trusts may be created in real or personalproperty or both, with power in the trustee, or a majority ofthe trustees, if there be more than one, to receive title to,hold, buy, sell, exchange, transfer and convey real andpersonal property for the use of such trust; to take, receive,invest or disburse the receipts, earnings, rents, profits orreturns from the trust estate; to carry on and conduct anylawful business designated in the instrument of trust,generally to do any lawful act in relation to the trustproperty which any individual owning the same absolutelymight do and to comply with the provisions of theOklahoma Uniform Prudent Investor Act.
§ 172. Express trust, how created--Duration--Specification of duration--Extension of term No such express trust shall be valid unless created first,by a written instrument subscribed by the grantor orgrantors duly acknowledged, as conveyances of real estateare acknowledged, and recorded in the office of the countyclerk of each county wherein is situated any real estateconveyed to such trustee, as well as in the county where theprincipal property is located or business conducted; or,second, by a will duly executed, as required by the law ofthe state. Such express trusts shall be limited in theduration thereof either to a definite period of not to exceedtwenty-one (21) years, or to the period of the life or lives ofthe beneficiary or beneficiaries thereof in being at the timeof the creation of the trust. The instrument creating thetrust shall specify the period of duration thereof within thelimitations herein provided. When such express trust hasoriginally been created for a definite term of years by awriting other than a will, the time of the existence of suchexpress trust may be extended for a period of not exceedingtwenty-one (21) years at any one time, by a writteninstrument subscribed by all beneficiaries of such expresstrust, duly acknowledged as are conveyances of real estate,and recorded in the office of the county clerk of the countywhere is located the principal office of said trust, and ineach county where is situated any real estate owned by suchexpress trust. Provided the provisions of this section shallbe applicable and limited to business trusts and shall have
no application to personal trusts.
§ 173. Succession of trustees Instruments creating express trusts may provide forsuccession to any trustee, in case of the death, resignation,removal, or incapacity of such trustee. In case of any suchsuccession, the title to the trust property shall at once vestin the succeeding trustee.
§ 174. Liability of trustees and beneficiaries Liability to third persons for any act, omission, orobligation of a trustee or trustees of an express trust whenacting in such capacity, shall extend to the whole of thetrust estate held by such trustee or trustees, or so muchthereof as may be necessary to discharge such liability, butno personal liability shall attach to the trustee or thebeneficiaries of such trust for any such act, omission orliability.
§ 175. Trust for benefit of spouse revoked upon death ofmaker--Annulment or divorce--Exemptions A. If, after making an express trust, the trustor isdivorced, all provisions in such express trust in favor of thetrustor's former spouse, which are to take effect upon thedeath of the trustor, are thereby revoked. Annulment of thetrustor's marriage shall have the same effect as a divorce. Inthe event of either divorce or annulment, the trustor'sformer spouse shall be treated for all purposes under theexpress trust, as having predeceased the trustor. Forpurposes of this section, "express trust" shall include a"Totten Trust" as described in Section 902 of Title 6 of theOklahoma Statutes and shall not include a "business trust".
B. Subsection A of this section shall not apply:1. If the decree of divorce or annulment is vacated;
2. If the trustor had remarried said former spouse andwas married to said spouse at the time of the trustor'sdeath;
3. If the decree of divorce or annulment contains aprovision expressing an intention contrary tosubsection A of this section;
4. If the trustor makes the express trust subsequent tothe divorce or annulment;
5. To the extent, if any, the express trust contains aprovision expressing an intention contrary tosubsection A of this section; or
6. If prior to the death of the trustor and subsequent tothe divorce or annulment, the trustor executes anamendment to said express trust which is not revokedor held invalid.
C. This section shall apply to any express trust, thetrustor of which dies on or after November 1, 1987.
§ 175.1. Citation of act This act may be cited as the Oklahoma Trust Act.
§ 175.2. Purposes of trust A trust in relation to real and personal property, oreither of them, may be created for any purpose or purposes
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for which a contract may be made.
§ 175.3. Definitions of terms used As used in this act unless the context or subject matterotherwise requires:
A. "Person" means an individual, a corporation, apartnership, an association, a joint stock company, abusiness trust, an unincorporated organization, or twoor more persons having a joint or common interest.
B. "Trustor" means the maker, creator, donor, settlor,grantor, of a trust and the testator or testatrix of a willcontaining trust provisions.
C. "Trustee" includes trustees, a corporate trustee andthe judicially ordered successor of the corporate trusteein the event of assumption by a financial institution offiduciary accounts for all trusts of the corporate trusteein existence on the date of the assumption, includingtestamentary trusts which come into existence after thedate of assumption, as well as a natural person and asuccessor or substitute trustee. Provided, a successor ininterest shall include a judicially ordered successor inthe event of an assumption by a financial institution offiduciary accounts for all trusts in existence on the dateof the assumption, together with those testamentarytrusts which come into existence after the date ofassumption.
D. "Relative" means a spouse, ancestor, descendant,brother, or sister, by blood or adoption.
E. "Affiliate" means any person directly or indirectlycontrolling or controlled by another person, or anyperson under direct or indirect common control withanother person. It includes, but is not limited to, anyperson with whom a trustee has an express or impliedagreement regarding the purchase of trust investmentsby each from the other, directly or indirectly, except abroker or stock exchange. It does not include a bank,trust company or affiliate of a bank or trust companywhich is providing services to an investment companyor trust as investment adviser, sponsor, distributor,custodian, transfer agent, administrator, registrar orotherwise.
F. "Trust" means an express trust only, and does notinclude so called "business trusts".
G. "Principal" means any real or personal propertywhich has been so set aside or limited by the ownerthereof, or a person thereto, legally empowered that itand any substitutions for it are eventually to beconveyed, delivered, or paid to a person, while thereturn therefrom, or use thereof, or any part of suchreturn or use is in the meantime to be taken or receivedby or held for accumulation for the same or anotherperson.
H. "Income" means the return derived from principal.
I. "Tenant" means the person to whom income ispresently or currently payable, or for whom it isaccumulated or who is entitled to the beneficial use ofthe principal presently and for a time prior to its
distribution.
J. "Remainderman" means the person ultimatelyentitled to the principal, whether named or designatedby the terms of the transaction by which the principalwas established or determined by operation of law.
K. "Beneficiary" means any person entitled to receivefrom a trust any benefit of whatsoever kind orcharacter.
L. "Trustee's compensation," as used in this act, meansthe normal, recurring fee of the trustee for services inthe management and administration of the trust estate,irrespective of the manner of computation of such fee."Trustee's commission," as used in this act, means thefee of the trustee for services rendered, other than in thenormal management and administration of the trustestate, and includes extraordinary services,remuneration of the trustee for acceptance, distribution,termination, and all other fees of similar nature, asdistinguished from regularly recurring compensationfor management and supervision of the trust estate bythe trustee.
§ 175.4. Legal estate of person in possession and entitledto rents and profits Every person who, by virtue of any transfer or devise,is entitled to the actual possession of real property, and thereceipts of the rents and profits thereof, is deemed to have alegal estate therein, of the same quality and duration, andsubject to the same conditions as his beneficial interest.subject to the same conditions as his beneficial interest.
§ 175.5. Trustee's title, when not divested by precedingsection The last preceding section does not divest the estate ofany trustee in a trust heretofore existing, where the title ofsuch trustee is not merely nominal, but is connected withsome power of actual disposition or management inrelation to the real property, which is the subject of thetrust.
§ 175.6. Manner of creating trust--Beneficiary ascotrustee A trust may be created by:
A. A declaration by the owner of property that he holdsit as trustee for another person, or for himself andanother person or persons; or
B. A transfer inter vivos by the owner of property toanother person as trustee for the transferor or for a thirdperson; or
C. A transfer by will by the owner of property toanother person as trustee for a third person; or
D. An appointment by one person having a power ofappointment to another person as trustee for the doneeof the power or for a third person; or
E. A promise by one person to another person whoserights thereunder are to be held in trust for a thirdperson; or
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F. A beneficiary may be a cotrustee and the legal andequitable title to the trust estate shall not merge byreason thereof.
Provided, however, that no trust in relation to real propertyshall be valid, unless created or declared:
1. By a written instrument subscribed by the trustor orby his agent thereto authorized by writing;
2. By the instrument under which the trustee claims theestate affected.
§ 175.6a. Acquiring and holding real property in nameof express trust--Transfer--Memorandum--Presumptionfor conveyance by trustee Any estate in real property may be acquired and held inthe name of an express private trust which is a legal entity.Where real property is so acquired, any conveyance,assignment or other transfer shall be made in the name ofsuch trust by the trustee or trustees of said trust. When realproperty is transferred or acquired in the name of the trustafter the effective date of this act, the trustee shall file amemorandum of trust with the county clerk in which thereal property is located. The memorandum of trust shallinclude the date of creation and the name of the trustee ortrustees of the trust.
Any person or persons making such conveyances andexecuting instruments while purporting to be the trustee ortrustees of such trusts shall be presumed to be acting in thecapacity indicated and within the scope of their authority inany action to set aside such conveyance brought against abona fide purchaser for value.
§ 175.6b. Time limit for challenges to validity of priorconveyances Any conveyance made and filed of record prior to theeffective date of this act placing real property or anyinterest therein in a trust naming the trust itself as thegrantee shall be valid for all purposes unless any personclaiming adversely to such trust or to its successors shallfile an affidavit setting forth the basis of such in the officeof the county clerk of the county or counties wherein saidproperty is located within one (1) year from the effectivedate of this act.
§ 175.7. Rights of transferee of trust property for valueand without notice If the trustee in breach of trust transfers trust propertyto, or creates a legal interest in the subject matter of thetrust in, a person who takes for value and without notice ofbreach of the trust, actual or constructive under therecording act, and who is not knowingly taking part in anillegal transaction, the latter holds the interest sotransferred or created free of the trust and is under noliability to the beneficiary.
§ 175.8. Transferor of money or property notresponsible for application by trustee A person who, with or without knowledge of the trust,in good faith pays or transfers to a trustee any money orother property which the trustee as such is authorized toreceive, is not responsible for the proper application thereofby the trustee; and any right or title acquired from thetrustee in consideration of such payment or transfer is not
invalid in consequence of a misapplication by the trustee.
§ 175.9. Trustee lending funds to self, affiliate, etc. Except as provided in Section 10, no corporate trusteeshall lend trust funds to itself or an affiliate, or to anydirector, officer, or employee of itself or of an affiliate; norshall any noncorporate trustee lend trust funds to himself,or to his relative, employer, employee, partner, or otherbusiness associate.
§ 175.10. Deposits by corporate trustee with itself--Security A corporate trustee may deposit with itself trust fundsin checking and savings accounts, savings certificates,certificates of deposit, and any other type of demand ortime deposit, provided it maintains under control of its trustdepartment, if it has a trust department separate from itsbanking department, as security for such deposit a separatefund consisting of securities legal for trust investmentswhich have at all times during the deposit a total marketvalue exceeding the amount of the deposit. No suchsecurity shall be required to the extent said deposit isguaranteed by or under state or federal law.
The separate fund of securities shall be marked as such.Withdrawals from or additions to it may be made from timeto time, as long as the required value is maintained. Theincome of such securities shall belong to the corporatetrustee.
§ 175.11. Trustee buying from, or selling to, self,affiliate, etc. No trustee shall directly or indirectly buy or sell anyproperty for the trust from or to itself or an affiliate; orfrom or to a director, officer, or employee of such trustee orof an affiliate; or from or to himself, a relative, employer,partner, or other business associate; provided a nationalbanking association or a state bank and trust companyperforming trust functions, where acting as executor,administrator, guardian, or trustee, may sell stock of itselfto one or more of its officers, stockholders, or directorsupon a court of competent jurisdiction finding that suchsale will be for the best interest of the trust estate andmaking an order for such sale.
§ 175.11a. Affiliates of financial institutions acting astrustees authorized to provide services, receivecompensation
A national banking association, a credit union, astate-chartered corporation, including a state-charteredbank or trust company, or a state or federal savings andloan association that has the right to exercise trust powersand that is serving as trustee, may:
1. Employ an affiliate or division within a financialinstitution to provide brokerage, investment,administrative, custodial, or other account services forthe trust and charge the trust for the services; and
2. Receive compensation, directly or indirectly, for theservices performed by the affiliate or division withinthe financial institution, whether in the form of sharedcommissions, fees, or otherwise, provided that anyamount charged by the affiliate or division for theservices is disclosed and does not exceed the customaryor prevailing amount that is charged by the affiliate or
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division, or a comparable entity, for comparableservices rendered to a person other than the trust.
§ 175.12. Trustee selling to self as trustee of anothertrust No trustee shall as trustee of one trust sell property tohimself as trustee of another trust, except bonds, notes, andobligations fully guaranteed as to both principal andinterest, by the United States of America, which may be sosold at the current market price.
§ 175.13. Trustee purchasing stock, bond or securities ofself, affiliate, etc. No corporate trustee shall purchase for a trust, shares ofits own stock, or its bonds, or other securities, or the stock,bonds or other securities of an affiliate.
This section shall not prohibit the exercise of stockrights issued in connection with shares of the trustee bankor its affiliates owned in a fiduciary capacity, nor paymentsfor the rounding out of fractional shares received inconnection with the stock dividends issued by the trusteebank or its affiliates; provided that,
(1) in the election of directors, shares of its own stockheld by a bank as sole trustee, whether registered in itsown name as such trustee or in the name of itsnominee, shall not be voted by the registered ownerunless under the terms of the trust the manner in whichsuch shares shall be voted may be determined by adonor or beneficiary of the trust and unless such donoror beneficiary actually directs how such shares shall bevoted,
(2) shares of its own stock held by a bank and one ormore persons as trustees may be voted by such otherperson or persons, as trustees, in the same manner as ifhe or they were the sole trustee.
No noncorporate trustee shall purchase for a trust the stock,bonds, or other securities of a corporation with which he isconnected as director, owner, manager, or in executivecapacity.
§ 175.14. Trustee voting corporate stock A trustee owning corporate stock may vote it by proxy,with or without power of substitution, but shall be liablefor any loss resulting to the beneficiaries from a failure touse reasonable care in deciding how to vote the stock andin voting it.
§ 175.15. Trustee owning stock in name ofnominee--Exemption A trustee owning stock may hold it in the name of anominee, without mention of the trust in the stockcertificate or stock registration book; provided that:
A. The trust records and all reports or accountsrendered by the trustee, clearly show the ownership ofthe stock by the trustee, and the facts regarding itsholdings;
B. The nominee deposits with the trustee a signedstatement showing the trust ownership, endorses thestock certificate in blank, and does not have possessionof the stock certificate or access thereto except underthe immediate supervision of the trustee. The trustee
shall be personally liable for any loss to the trustresulting from any wrongful or negligent act of suchnominee in connection with stock so held; andC. The provisions of this section shall not apply to abank, trust company or national banking association.
§ 175.16. Powers of trustee attached to office Unless it is otherwise provided by the trust instrument,or an amendment thereof, or by court order, all powers of atrustee shall be attached to the office and shall not bepersonal.
§ 175.17. Cotrustees--Powers and liabilities Unless it is otherwise provided by the trust instrument,or an amendment thereof, or by court order:
A. Any power vested in three or more trustees may beexercised by a majority of the trustees; but no trusteewho has not joined in exercising a power shall be liableto the beneficiaries or to others for the consequences ofthe exercise, nor shall a dissenting trustee be liable forthe consequences of an act in which the trustee joins atthe direction of the majority trustees, if the trusteeexpressed his dissent in writing to any of the cotrusteesat or before the time of the joinder.
B. Where two or more trustees are appointed by will ora voluntary trust to execute a trust and one or more ofthem die, the survivor may execute the trust and mayexercise the discretionary powers given to the trusteesjointly, unless the terms of the will or agreementexpress a contrary opinion.
C. Any cotrustee may give a power of attorney toanother trustee or authorize a cotrustee to perform anyact in the administration of the trust, but the trusteegiving a power of attorney or authorizing an act to beperformed by the cotrustee shall have the same liabilityand responsibility as if the trustee had performed theact done pursuant to the authorization.
D. Nothing in this section shall excuse a cotrustee fromliability for inactivity in the administration of the trust,nor for failure to attempt to prevent a breach of trust.
E. Where two or more trustees, none of whom is thesettlor, have the power as trustees to make discretionarydistributions of either principal or income to or for thebenefit of one of them, the trustee beneficiary may onlymake such discretionary distributions which providefor the health, education, or maintenance of the trusteebeneficiary or to support the trustee beneficiary in anaccustomed manner of living. The provisions of thissubsection shall apply to any trust created under adocument executed on or before the effective date ofthis act unless:
1. The trust is revocable or amendable and thesettlor revokes or amends the trust at any time toprovide otherwise; or
2. The trust is irrevocable and all parties in interestelect affirmatively not to be subject to thissubsection. Such election must be made on orbefore the later of three (3) years after the effectivedate of this act, or three (3) years after the date onwhich the trust becomes irrevocable.
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§ 175.18. Action on trustee contract--Personal liabilityof trustee--Trustee as general or limited partner Whenever a trustee shall make a contract which iswithin his powers as trustee, or a predecessor trustee shallhave made such a contract, and a cause of action arisesthereon:
1. The party in whose favor the cause of action hasaccrued may sue the trustee in his representativecapacity, and any judgment rendered in such action infavor of the plaintiff shall be collectible by executionout of the trust property. In such an action the plaintiffneed not prove that the trustee could have securedreimbursement from the trust fund if he had paid theplaintiff's claim.
2. No judgment shall be rendered in favor of theplaintiff in such action unless he proves that withinthirty (30) days after the beginning of such action, orwithin such other time as the court may fix, and morethan thirty (30) days prior to obtaining the judgment,he notified each of the beneficiaries known to thetrustee who then had a present or contingent interest, orin the case of a charitable trust the Attorney Generaland any corporation which is a beneficiary or agency inthe performance of such charitable trust, of theexistence and nature of the action. Such notice shall begiven by mailing copies thereof in postpaid envelopesaddressed to the parties to be notified at theirlast-known addresses. The trustee shall furnish theplaintiff a list of the parties to be notified, and theiraddresses, within ten (10) days after written demandtherefor, and notification of the persons on such listshall constitute compliance with the duty placed on theplaintiff by this section. Any beneficiary, or in the caseof charitable trusts, the Attorney General and anycorporation which is a beneficiary or agency in theperformance of such charitable trust, may intervene insuch action and contest the right of the plaintiff torecover. If any beneficiary is a minor or has beenadjudged incompetent, the court shall appoint aguardian ad litem, whose duty it shall be to defend suchaction.
3. The plaintiff may also hold the trustee who made thecontract personally liable on such contract, if thecontract does not exclude such personal liability. Theaddition of the word "trustee" or the words "as trustee"after the signature of a trustee to a contract shall bedeemed prima facie evidence of an intent to exclude thetrustee from personal liability.
4. If a decedent was a partner in a general partnershipand the articles of partnership so provide, on the deathof a partner, his or her trustee shall be entitled to theplace of the deceased partner in the partnership.Likewise, any other trustee contracting to enter into ageneral partnership in its capacity as trustee shall haveits liability limited to the trust assets contributed to thepartnership and the other assets of that trust under thecontrol and management of the contract. A trustee soentering the partnership shall be liable to third personsonly to the extent of the decedent's capital in thepartnership and the funds of the trust under the controland management of the trustee. This paragraph doesnot exonerate a trustee from liability for negligence.
5. Unless otherwise authorized, directed or restricted byorder of court or by the instrument creating the trust, atrustee may contract to enter into a limited partnershippursuant to the Limited Partnership Act and maycontribute to the partnership the assets designated bythe instrument creating the trust. The trustee shall beliable only to the extent of the assets contributed by thetrustee pursuant to the instrument creating the trust,notwithstanding the occurrence of any act or eventwhich would otherwise have the effect of changing thelimited partnership into a general partnership. Thisparagraph does not exonerate a trustee from liability fornegligence.
§ 175.19. Torts of trustee--Exoneration orreimbursement A trustee who has incurred personal liability for a tortcommitted in the administration of the trust is entitled toexoneration therefor from the trust property;
A. If he has not discharged the claim, or to bereimbursed therefor out of trust funds if he has paid theclaim; if
1. The tort was a common incident of the kind ofbusiness activity in which the trustee was properlyengaged for the trust; or
2. Although the tort was not a common incident ofsuch activity, if neither the trustee nor any officeror employee of the trustee was guilty of actionablenegligence in incurring the liability.
B. If a trustee commits a tort which increases the valueof the trust property, he shall be entitled to exonerationor reimbursement with respect thereto to the extent ofsuch increase in value, even though he would nototherwise be entitled to exoneration or reimbursement.
Where the trust instrument reserves to the trustor or vests inan advisory or investment committee or any other person,including a cotrustee, authority to direct the making orretention of investments, the excluded trustee or trusteesshall not be liable as a trustee for any loss resulting fromthe making or retention of any investment pursuant to suchmandatory direction, except to the extent the excludedtrustee is negligent in carrying out the execution of thedirected investment or other directed action, and nothingherein shall relieve any trustee having custody of any assetfrom liability for exercising due diligence in thesafekeeping thereof.
§ 175.20. Actions for trustee's torts--Personal liability oftrustee Where a trustee or his predecessor has incurredpersonal liability for a tort committed in the course of hisadministration:
A. The trustee in his representative capacity may besued and collection had from the trust property, if thecourt shall determine in such action:
1. That the tort was a common incident of the kindof business activity in which the trustee or hispredecessor was properly engaged for the trust; or
2. That although the tort was not a commonincident of such activity neither the trustee nor hispredecessor, nor any officer or employee of the
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trustee or his predecessor, was guilty of actionablenegligence in incurring the liability; or
3. That although the tort did not fall within Classes1 or 2 above, it increased the value of the trustproperty. If the tort is within Classes 1 or 2 above,collection may be had of the full amount of damageproved; and if the tort is within Class 3 above,collection may be had only to the extent of thepermanent increase in the value of the trustproperty.
B. In an action against the trustee in his representativecapacity under this section the plaintiff need not provethat the trustee could have secured reimbursement fromthe trust fund if he had paid the plaintiff's claim.
C. No judgment shall be rendered in favor of theplaintiff in such action unless he proves that withinthirty (30) days after the beginning of the action, orwithin such other period as the court may fix, and morethan thirty (30) days prior to obtaining the judgment,he notified each of the beneficiaries known to thetrustee who then had a present or contingent interest ofthe existence and nature of the action. Such notice shallbe given by mailing copies thereof in postpaidenvelopes addressed to such beneficiaries at their lastknown addresses. The trustee shall furnish the plaintiffa list of such beneficiaries and their addresses, withinten (10) days after written demand therefor, andnotification of the persons on such list shall constitutecompliance with the duty placed on the plaintiff by thisaction. Any beneficiary may intervene in such actionand contest the right of the plaintiff to recover. If anybeneficiary is a minor or has been adjudgedincompetent, the court shall appoint a guardian adlitem, whose duty it shall be to defend such action.
D. The trustee may also be held personally liable forany tort committed by him, or his agents or employeesin the course of their employments, subject to the rightsof exoneration or reimbursement provided in Section19 of this act.
§ 175.21. Duties, restrictions or liabilities oftrustee--Trustor may relieve trustee or add others The trustor of any trust affected by this act may, byprovisions in the instrument creating the trust, or by anamendment of the trust if the trustor reserved the power toamend the trust, relieve his trustee from any or all of theduties, restrictions, and liabilities which would otherwisebe imposed upon him by this act; or alter or deny to histrustee any or all of the privileges and powers conferredupon the trustee by this act; or add duties, restrictions,liabilities, privileges, or powers to those imposed orgranted by this act; but no act of the trustor shall relieve acorporate trustee from the duties, restrictions, and liabilitiesimposed upon it by Sections 9, 10, and 11 of this act.
§ 175.23. Jurisdiction of district court regardingtrusts--Venue--Parties--Applicable statutes A. The district court shall have original jurisdiction toconstrue the provisions of any trust instrument; todetermine the law applicable thereto; the powers, duties,and liability of trustee; the existence or nonexistence of
facts affecting the administration of the trust estate; torequire accounting by trustees; to surcharge trustee; and inits discretion to supervise the administration of trusts; andall actions hereunder are declared to be proceedings in rem.
B. The venue of such actions shall be in the countywhere the trustees or any cotrustee resides. Upon obtainingjurisdiction the same shall not be divested by the removalof the trustee from the county where the action iscommenced.
C. Actions hereunder may be brought by a trustee,beneficiary, or any person affected by the administration ofthe trust estate. If the action is predicated upon any act orobligation of any beneficiary, the beneficiary shall be anecessary party to the proceedings. The only necessaryparties to such actions shall be those persons designated asbeneficiaries by name or class in the instrument creatingthe trust and who have a vested interest in the trust which isthe subject of the action, those persons currently serving astrustees of the trust, and any persons who may be actuallyreceiving distributions from the trust estate at the time theaction is filed. Contingent beneficiaries designated by nameor class shall not be necessary parties.
D. The provisions of the statutes governing civilprocedure, commencement of action, process, process bypublication, appointment of guardians ad litem,supersedeas and appeal, shall govern all actions andproceedings brought under provisions of this act.
E. A court of competent jurisdiction may, for causeshown and upon notice to the beneficiaries, relieve a trusteefrom any or all of the duties and restrictions which wouldotherwise be placed upon the trustee by this act, or whollyor partly excuse a trustee who has acted honestly andreasonably from liability for violations of the provisions ofthis act.
§ 175.24. Powers of trustees--Enumeration--Others notexcluded--Bond of trustee A. In the absence of contrary or limiting provisions inthe trust agreement or a subsequent order or decree of acourt of competent jurisdiction, the trustee of an expresstrust is authorized:
1. To exchange, reexchange, subdivide, develop,improve, dedicate to public use, make or vacate publicplats, adjust boundaries, or partition real property, andto adjust differences in valuation by giving or receivingmoney or money's worth. Easements may be dedicatedto public use without consideration if deemed by thetrustee to be for the best interest of the trust;
2. To grant options and to sell real or personal propertyat public auction or at private sale for cash, or uponcredit secured by lien upon the property sold or uponsuch property or a part thereof or other property;
3. To grant or take leases of real property and of allrights and privileges above or below the surface of realproperty for any term or terms, including explorationfor and removal of oil, gas, and other minerals, with orwithout options of purchase, and with or withoutcovenants as to erection of buildings or as to renewalsthereof, though the term of the lease or renewals
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thereof, or of such options extend beyond the term ofthe trust;
4. To raze existing party walls or buildings or erect newparty walls or buildings alone or jointly with owners ofadjacent property. To make ordinary repairs and inaddition thereto such extraordinary alterations inbuildings or other structures which are necessary tomake the property productive. To effect and keep inforce, fire, rent, title, liability, casualty, or otherinsurance of any nature, in any form and in anyamount;
5. To compromise, contest, arbitrate, or settle any andall claims of or against the trust estate or the trustee assuch. To abandon property deemed by the trusteeburdensome or valueless;
6. To pay calls, assessments, and any other sumschargeable or accruing against, or on account of sharesof stock or other securities in the hands of the trusteewhere such payment may be legally enforceable againstthe trustee or any property of the trust, or the trusteedeems payment expedient and for the best interest ofthe trust. To sell or exercise stock subscription orconversion rights, participate in foreclosures,reorganizations, consolidations, mergers, liquidations,pooling agreements and voting trusts; to assent tocorporate sales, leases, and encumbrances, and ingeneral, except as limited by the particular trustagreement, have and exercise all powers of an absoluteowner in respect of such securities. In the exercise ofthe foregoing powers the trustee shall be authorized,where he deems such course expedient, to depositstocks, bonds, or other securities with any protective orother committee formed by or at the instance of personsholding similar securities, under such terms andconditions respecting the deposit thereof as the trusteemay approve. Any stock or other securities obtained byconversion, reorganization, consolidation, merger,liquidation, or the exercise of subscription rights shallbe free, unless the trust agreement provides otherwise,from any restrictions on sale or otherwise contained inthe trust agreement relative to the securities originallyheld;
7. To make such investment directly or in the form ofsecurities of, or other interests in, any open-end orclosed-end management type investment company orinvestment trust registered under the InvestmentCompany Act of 1940, 15 U.S.C.A. Section 80a-1 etseq.; provided, that the portfolio of such investmentcompany or investment trust is limited to United StatesGovernment obligations and to repurchase agreementsfully collateralized by such United States Governmentobligations, and provided further, that any suchinvestment company or investment trust shall takedelivery of such collateral, either directly or through anauthorized custodian;
8. To borrow money or create an indebtedness orobligation including any bond indebtedness orobligation, except as limited by the provisions of theOklahoma Trust Act; and generally to execute any deedor other instrument and to do all things in relation to
such trust necessary or desirable for carrying out any ofthe above powers or incident to the purposes of suchtrust; and
9. To employ attorneys, accountants, agents, andbrokers reasonably necessary in the administration ofthe trust estate; permit real estate held in trust to beoccupied by a surviving spouse or minor child of thetrustor and, where reasonably necessary for themaintenance of the surviving wife or minor child,invest trust funds in real property to be used for a homeby such beneficiary; make any contracts pertaining tooil, gas, or other natural resources as are customary inthe community where the real property held in trust issituated; in the trustee's discretion pay funeral expensesof any beneficiary actually receiving benefits from thetrust estate at the time of the death of the beneficiary.
B. The following rules of administration shall beapplicable to all express trusts but such rules shall not beexclusive of those otherwise imposed by law unlesscontrary to these rules:
1. Where a trustee is authorized to sell or dispose ofland, such authority shall include the right to sell ordispose of part thereof, whether the division ishorizontal, vertical, or made in any other way, orundivided interests therein;
2. Where a trustee is authorized by the trust agreementcreating the trust or by law to pay or apply capitalmoney subject to the trust for any purpose or in anymanner, the trustee shall have and shall be deemedalways to have had power to raise the money requiredby selling, converting, calling in, or mortgaging orotherwise encumbering all or any part of the trustproperty for the time being in possession;
3. A trustee shall have a lien and may be reimbursedwith interest for, or pay or discharge out of the trustproperty, either principal or income or both, alladvances made for the benefit or protection of the trustor its property and all expenses, losses, and liabilities,not resulting from the negligence of the trustee,incurred in or about the execution or protection of thetrust or because of the trustee holding or ownership ofany property subject thereto; and
4. When the happening of any event, includingmarriage, divorce, attainment of a certain age,performance of educational requirements, death, or anyother event, affects distribution of income or principalof trust estates, the trustees shall not be liable formistakes of fact prior to the actual knowledge orwritten notice of such fact.
C. The powers, duties, and responsibilities stated in theOklahoma Trust Act or the Oklahoma Uniform PrudentInvestor Act shall not be deemed to exclude other impliedpowers, duties, or responsibilities not inconsistentherewith.
D. The trustee shall pay all taxes and assessmentslevied or assessed against the trust estate or the trustee bygovernmental taxing or assessing agencies.
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E. No trustee shall be required to give bond unless theinstrument creating the trust, or a court of competentjurisdiction in its discretion upon the application of aninterested party requires a bond to be given.
§ 175.25. Alienation of interest of beneficiary--Rightsand remedies of creditors--Spendthrift trusts--Trustor'sinterest alienable and subject to claims of creditors A. Any instrument creating a trust may provide byspecific words that the interest of any beneficiary in theincome of the trust shall not be subject to voluntary orinvoluntary alienation by such beneficiary. Subject to thefollowing provisions of this section, a direction to thiseffect shall be valid and enforceable.
B. Notwithstanding a provision in the terms of a trustrestraining the alienation of the interest of a beneficiary,such interest shall be entitled to be reached in thesatisfaction of claims to the following extent:
1. All income due or to accrue in the future to thebeneficiary shall be subject to enforceable claims underthe laws of this state for:
a. support of a husband, wife, or child of thebeneficiary,
b. necessary services rendered or necessarysupplies furnished to the beneficiary, or
c. a judgment based on any such claim undersubparagraph a or b; and
2. In all cases not mentioned in paragraph 1 of thissubsection, all income due or to accrue in the future tothe beneficiary in excess of Twenty-five ThousandDollars ($25,000.00) per calendar year shall be subjectto garnishment by creditors of the beneficiary and shallbe fully alienable by the beneficiary.
C. Where two or more creditors undertake to reach theinterest of any beneficiary of a trust, pursuant to theprovisions of this section, they shall be subject to priorityof payment in the order of the service of a notice ofgarnishment on the trustee. The pendency of anyattachment or garnishment shall not prevent the filing of afurther attachment or garnishment by the same or any othercreditor.
D. Where the beneficiary of any spendthrift trust is alsothe beneficiary under any other spendthrift trust created oradministered either within or without this state, theaggregate income payable under all such trusts to thebeneficiary shall be considered together for the purpose ofdetermining the rights of creditors and assignees under thissection.
E. The right of any beneficiary of a trust to receive theprincipal of the trust or any part of it, presently or in thefuture, shall not be alienable and shall not be subject to theclaims of his creditors.
F. Where the interest of the beneficiary of a trust issubject to the exercise of discretion by the trustee or byanother, the provisions of this act as to the rights ofcreditors and assignees shall apply with respect to any sumswhich the trustee or such other person determines shall be
paid to or for the beneficiary.
G. A trust in which the interest of the beneficiary issubject to restraints on alienation as provided in this actmay be called a "spendthrift trust" and a direction in anyinstrument creating a trust that the interest of anybeneficiary shall be held on or subject to a spendthrift trustshall be sufficient to restrain the alienation of such interestto the extent provided in this act.
H. Nothing in this act shall authorize a person to createa spendthrift trust or other inalienable interest for his ownbenefit. The interest of the trustor as a beneficiary of anytrust shall be freely alienable and subject to the claims ofhis creditors.
I. The provisions of this section may be enforced onlyby an action in a court of competent jurisdiction and theobligor beneficiary shall be a party defendant in suchaction. The trustee shall not be required to recognize any ofthe obligations provided for in this section or to withholdany income from the beneficiary until said trustee has beenserved with summons or garnishment summons. Suchaction shall be governed by the rules of civil procedureunder the laws of this state.
§ 175.37. Death of trustee--Appointment of successorUpon the death of a sole or surviving trustee of an
express trust and in the absence of the trust providing for apractical method of appointment, the power to appoint atrustee shall vest in the court having jurisdiction thereof,and on petition of any person interested such court shallappoint a successor in whom the trust shall vest.
§ 175.38. Resignation of trusteeUpon petition of any trustee of an express trust, a court
having jurisdiction may accept his resignation, anddischarge him from the trust upon such terms as the rightsof the persons interested in the execution of the trust mayrequire.
§ 175.39. Removal of trustee--Filling vacanciesTrustees having violated or attempted to violate any
express trust, or becoming incompetent or insolvent, or ofwhose solvency or that of their sureties there is reasonabledoubt, or for other cause, in the discretion of the courthaving jurisdiction, may, on petition of any personinterested, after hearing, be removed by such court anddenied compensation in whole or in part; and anybeneficiary, cotrustee, or successor may treat the violationas a breach of trust; and all vacancies in expresstrusteeships may be filled by such court.
§ 175.40. Rights, duties, etc., of trustees appointed bycourt
Trustees appointed by the district courts of Oklahomashall be vested with all the rights, powers, trusts, privileges,discretion and title to properties conferred upon the trusteeby the trust instrument, and by statute, unless otherwiseprovided by the court in the order of appointment; and shallbe charged with all the duties, responsibilities andliabilities enjoined by said trust instrument and by statute.
§ 175.41. Revocation of trust by trustor Every trust shall be revocable by the trustor, unless
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expressly made irrevocable by the terms of the instrumentcreating the same. Provided, that any trust may be revokedby the trustor upon the written consent of all living personshaving vested or contingent interest therein. The term"contingent interest," as used in this section, shall includean interest which a beneficiary may take by purchase, andexclude any interest which a beneficiary may take bydescent. Provided further that this section shall not apply toa spendthrift trust unless same is created by the trustor forhis own benefit.
§ 175.42. Designation of person to whom property shallbelong on failure or termination of trust--Transfersubject to trust Notwithstanding anything contained in the last section,the trustor of a trust may, in its creation, prescribe to whomthe real or personal property to which the trust relates shallbelong, in the event of the failure or termination of thetrust, and may transfer or devise such property, subject tothe execution of the trust.
§ 175.43. Legal estate of grantee or devisee of propertysubject to trust The grantee or devisee of real or personal propertysubject to a trust acquires a legal estate in the property,against all persons except the trustees and those lawfullyclaiming under them.
§ 175.44. Estates remaining in trustor Where an express trust is created in relation to real orpersonal property, every estate not embraced in the trust,and not otherwise disposed of, is left in the trustor of thetrust or his successors.
§ 175.45. Grant deemed absolute as to purchasers orencumbrances for value--Notice of restrictions--Intent ofLegislature (a) Where an express trust is created in relation to realproperty; any grant, deed, conveyance, lease, easement,encumbrance, assignment, or release by the trustee withrespect to such real property or interest therein shall bedeemed authorized and binding upon the trust in favor ofpurchasers or encumbrances for value without either (i)actual notice of restrictions or limitations established by thetrust upon the trustee, or (ii) the constructive notice asprovided in subsection (b) hereof.
(b) If the instrument establishing the trust is recorded inthe county where the real property is located, saidpurchasers or encumbrances for value shall be charged withconstructive notice of the restrictions and limitationscontained in such instrument.
(c) It is the intent of the Legislature that trusts areprivate instruments and it shall not be necessary to recordthe instrument establishing a trust unless the trustor desiresto put the public on notice of restrictions or limitationsupon the powers of the trustee, in which case the samemust be recorded.
§ 175.47. Suspension of absolute power of alienation--Period of suspension
A. Except as otherwise provided by this section, theabsolute power of alienation of real and personal property,or either of them, shall not be suspended by any limitations
or conditions whatever for a longer period than during thecontinuance of a life or lives of the beneficiaries in being atthe creation of the estate and twenty-one (21) yearsthereafter.
B. The provisions of this section shall not apply whenproperty is given, granted, bequeathed, or devised to:
1. A charitable use;
2. Literary, educational, scientific, religious, orcharitable corporations for their sole use and benefit;
3. Any cemetery corporation, society or association;
4. The Department of Mental Health and SubstanceAbuse Services as provided in Section 1 of this act; or
5. Gifts absolute, limited, or in trust, for theadvancement of medical science to an incorporatedstate society of physicians and surgeons.
§ 175.48. Compensation or commissions of trustee A trustee acting in a fiduciary capacity, as hereinauthorized, is entitled to receive such compensation orcommission as provided for in the trust agreement or othercontract. If the amount of such compensation orcommission is not regulated by or stipulated in the trustagreement, the trustee may charge and deduct a reasonablecompensation or commission for the services rendered andthe responsibilities assumed. Where the trustee is actingunder appointment by a court, such compensation orcommission shall be paid, irrespective of the provisions inthe trust instrument, as allowed or approved by that court.
§ 175.49. Trust ceases when purpose ceases When the purpose for which an express trust wascreated ceases, the estate of the trustee also ceases.
§ 175.50. Repeals as reinstating common law rules The repeal of any section of the statutory law of thisstate by this act, which section abrogated or restated thecommon-law rule, shall operate to reinstate and reestablishthe common-law rule applicable thereto, except as thesubject matter thereof may be changed by the provisions ofthis act.
§ 175.51. Tax statutes to supersede act For the purposes of assessments and collection of taxesby the State of Oklahoma and its political subdivisions, thestatutes of the State of Oklahoma relating to and governingtaxation shall supersede the provisions of this act.
§ 175.53. Agreements, wills and trust relations to whichstatute applicable The terms of this act shall apply in the construction of,and operation under,
A. All agreements containing trust provisions enteredinto subsequent to the effective date hereof;
B. All wills made by testators who shall die subsequentto the effective date hereof; and
C. All other wills and trust agreements and trustrelations in so far as such terms do not impair theobligation of contract or deprive persons of property
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without due process of law under the Constitution ofthe State of Oklahoma or the United States of America.
§ 175.54. Situs in jurisdiction where trustee notqualified to act--Powers of trustee A trustee, whether an individual or a corporation, shallhave the power to appoint a natural or corporate trustee toact with respect to the portion of the trust estate that hassitus in a jurisdiction in which the trustee is not qualified toact and shall have the power to remove each such appointeeat any time with or without cause. Each such appointeeshall:
(1) have all of the powers granted in this act or underthe trust instrument to the trustee with respect to themanagement of the trust estate,
(2) transfer to the trustee as soon as practicable allgross receipts derived from the portion of the trustestate that remains under his control, and
(3) be liable to the trustee for any wrongful act ormismanagement of the trust estate in the same mannerthat the trustee is liable to the beneficiaries.
§ 175.55. Investment of trust assets by bank, trustcompany or affiliate of bank or trust company
A. A bank, trust company, or affiliate of a bank or trustcompany which serves as a fiduciary, trustee, custodian,managing agent, personal representative, or otherwise mayinvest and reinvest assets that it maintains in its trustdepartment or trust company in the securities of anyopen-end or closed-end management investment companyor investment trust registered under the InvestmentCompany Act of 1940, 15 U.S.C., Section 80a-1 through80a-64, as amended.
B. Any investment or reinvestment made pursuant tosubsection A of this section shall comply with theprovisions of the Oklahoma Uniform Prudent Investor Act.
C. A bank, trust company or an affiliate of a bank ortrust company which is providing services to an investmentcompany or investment trust as investment adviser,sponsor, distributor, custodian, transfer agent,administrator, registrar, or otherwise and who is receivingreasonable remuneration for such services, may makeinvestments and reinvestments pursuant to subsections Aand B of this section in said investment company orinvestment trust.
D. Any bank, trust company or affiliate of a bank ortrust company which makes investments or reinvestmentspursuant to subsection C of this section:
1. Shall not be required to reduce or waive its fees orcharges for services provided in connection with theinvestment and management of funds it holds asfiduciary, trustee, custodian, managing agent, personalrepresentative, or otherwise because such funds areinvested, reinvested, or retained in an investmentcompany or investment trust so long as the totalcompensation paid, including any fees or chargespayable by the investment company or investment trustin connection with the investment of such funds, isreasonable; and
2. May receive fees in accordance with Rule 12b-1 ofthe Investment Company Act of 1940, or similar fees,from the investment company or investment trust in thesame amount that would be paid by such investmentcompany or investment trust to any other party, withoutreducing or waiving other fees it receives for serving asa fiduciary, trustee, custodian, managing agent,personal representative or otherwise. Any fees receivedby a bank, trust company, or affiliate of a bank or trustcompany pursuant to this paragraph shall be disclosedto the customer of such bank, trust company, oraffiliate of the bank or trust company.
§ 175.56. Death of beneficiary before distribution-Distribution to beneficiary's lineal descendants
When the declaration or agreement of an express trustprovides for any of the property held in trust to bedistributed to a beneficiary related by blood to the grantoror to a grantor of the trust, and the beneficiary is living atthe time the trust is created but dies before the time fordistribution of the trust leaving one or more linealdescendants who are living at the time for distribution ofthe trust, and no provision is made in the trust declarationor agreement for disposition of the property in the eventthat the beneficiary is not living at the time for distributionof the trust, the beneficiary's lineal descendants take theshare of the trust property so given to the beneficiary in thetrust declaration or agreement, by right of representation, inthe same manner as the beneficiary would have done hadhe been living at the time for distribution of the trust.
§ 175.57. Breach of trust--Remedies--Liability
A. A violation by a trustee of a duty the trustee owes a
beneficiary is a breach of trust.
B. To remedy a breach of trust that has occurred or may
occur, the court may:
1. Compel the trustee to perform the trustee's duties;
2. Enjoin the trustee from committing a breach of trust;
3. Compel the trustee to redress a breach of trust by
payment of money or otherwise;
4. Order a trustee to account;
5. Appoint a receiver or temporary trustee to take
possession of the trust property and administer the
trust;
6. Suspend or remove the trustee;
7. Reduce or deny compensation to the trustee;
8. Subject to subsection I of this section, void an act of
the trustee, impose an equitable lien or a constructive
trust on trust property, or trace trust property
wrongfully disposed of and recover the property or its
proceeds; or
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9. Grant any other appropriate remedy.
C. A beneficiary may charge a trustee who commits a
breach of trust with the amount required to restore the
value of the trust property and trust distributions to what
they would have been had the breach not occurred, or, if
greater, the profit that the trustee made by reason of the
breach.
D. In a judicial proceeding involving a trust, the court
may in its discretion, as justice and equity may require,
award costs and expenses, including reasonable attorney's
fees, to any party, to be paid by another party or from the
trust which is the subject of the controversy.
E. 1. Unless previously barred by adjudication,
consent, or other limitation, a claim against a trustee for
breach of trust is barred as to a beneficiary who has
received from the trustee a report or other statement
adequately disclosing the existence of the claim unless:
a. a judicial proceeding to assert the claim is
commenced within two (2) years after receipt of the
report or statement or, if no report or statement is
received, within two (2) years after the termination
of the trust relationship between the beneficiary
and that particular trustee, and
b. the report or other statement informs the
beneficiary of this time limitation.
A report or statement adequately discloses the existence
of a claim if it provides sufficient information so that
the beneficiary knows of the claim or reasonably
should have inquired into its existence. A claim this
barred does not include an action to recover for fraud
or misrepresentation related to the report or other
statement.
2. For the purpose of paragraph 1 of this subsection, a
beneficiary is deemed to have received a report or other
statement:
a. in the case of an adult, if it is received by the
adult personally, or if the adult lacks capacity, if it
is received by the adult's conservator, guardian, or
agent with authority, or
b. in the case of a minor, if it is received by the
minor's guardian or conservator or, if the minor
does not have a guardian or conservator, if it is
received by a parent of the minor who does not
have a conflict of interest.
3. Except as otherwise provided by the terms of a trust,
while the trust is revocable and the settlor has capacity
to revoke, the rights of the beneficiaries are held by,
and the duties of the trustee are owed exclusively to the
settlor; the rights to be held by and owed to the
beneficiaries arise only upon the settlor's death or
incapacity. The trustee may follow a written direction
of the settlor, even if contrary to the terms of the trust.
The holder of a presently exercisable power of
withdrawal or a testamentary general power of
appointment has the rights of a settlor of a revocable
trust under this section to the extent of the property
subject to the power.
F. 1. A term of the trust relieving a trustee of liability for
breach of trust is unenforceable to the extent that it:
a. relieves a trustee of liability for breach of trust
committed in bad faith or with reckless indifference
to the purposes of the trust or the interest of the
beneficiaries, or
b. was inserted as the result of an abuse by the
trustee of a fiduciary or confidential relationship to
the settlor.
2. An exculpatory term drafted by or on behalf of the
trustee is presumed to have been inserted as a result of
an abuse of a fiduciary or confidential relationship
unless the trustee proves that the exculpatory term is
fair under the circumstances and that its existence and
contents were adequately communicated to the settlor.
G. A beneficiary may not hold a trustee liable for a breach
of trust if the beneficiary, while having capacity, consented
to the conduct constituting the breach, released the trustee
from liability for the breach, or ratified the transaction
constituting the breach, unless:
1. The beneficiary at the time of the consent, release, or
ratification did not know of the beneficiary's rights and
of the material facts that the trustee knew, or with the
exercise of reasonable inquiry, the beneficiary should
have known, and that the trustee did not reasonably
believe that the beneficiary knew; or
2. The consent, release, or ratification of the
beneficiary was induced by improper conduct of the
trustee.
H. 1. Except as otherwise agreed, a trustee is not
personally liable on a contract properly entered into in the
trustee's fiduciary capacity in the course of administration
of the trust if the trustee in the contract discloses the
fiduciary capacity.
2. A trustee is personally liable for obligations arising
from ownership or control of trust property, or for torts
committed in the course of administering a trust, only if
the trustee is personally at fault, whether negligently or
intentionally.
3. A trustee who does not join in exercising a power
held by three or more trustees is not liable to third
persons for the consequences of the exercise of the
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power. A dissenting trustee who joins in an action at
the direction of the majority cotrustees is not liable to
third persons for the action if the dissenting trustee
expressed the dissent in writing to any other cotrustee
at or before the time the action was taken.
4. A claim based on a contract entered into by a trustee
in the trustee's fiduciary capacity, on an obligation
arising from ownership or control of trust property, or
on a tort committed in the course of administering a
trust, may be asserted against the trust in a judicial
proceeding against the trustee in the trustee's fiduciary
capacity, whether or not the trustee is personally liable
on the claim.
I. 1. A person who in good faith assists a trustee or who
in good faith and for value deals with a trustee without
knowledge that the trustee is exceeding or improperly
exercising the trustee's powers is protected from liability as
if the trustee properly exercised the power.
2. Dealing in good faith with another person with
knowledge that the other person is a trustee does not
place a third person on notice to inquire into the extent
of the trustee's powers or the propriety of their exercise.
3. A person who in good faith deals with another
person with knowledge that the other person is a trustee
is not solely on that account placed on notice to inquire
into the extent of the trustee's powers or the propriety
of their exercise or to see to the proper application of
assets of the trust paid or delivered to a trustee.
4. A person who in good faith assists a former trustee
or who for value and in good faith deals with a former
trustee without knowledge that the person is no longer
a trustee is protected from liability as if the former
trustee were still a trustee.
5. The protection provided by this section to persons
assisting or dealing with a trustee is secondary to that
provided under comparable provisions of other laws
relating to commercial transactions or to the transfer of
securities by fiduciaries.
§ 175.60. Short title
Sections 1 through 13 of this act shall be known and
may be cited as the "Oklahoma Uniform Prudent Investor
Act".
§ 175.61. Prudent investor rule
A. Except as otherwise provided in subsection B of this
section, a trustee who invests and manages trust assets
owes a duty to the beneficiaries of the trust to comply with
the prudent investor rule set forth in the Oklahoma
Uniform Prudent Investor Act.
B. The prudent investor rule, a default rule, may be
expanded, restricted, eliminated, or otherwise altered by the
provisions of a trust. A trustee is not liable to a beneficiary
to the extent that the trustee acted in reasonable reliance on
the provisions of the trust.
§ 175.62. Standard of care--Portfolio strategy--Risk and
return objectives
A. A trustee shall invest and manage trust assets as a
prudent investor would, by considering the purposes,
terms, distribution requirements, and other circumstances
of the trust. In satisfying this standard, the trustee shall
exercise reasonable care, skill, and caution.
B. A trustee's investment and management decisions
respecting individual assets must be evaluated not in
isolation, but in the context of the trust portfolio as a whole
and as a part of an overall investment strategy having risk
and return objectives reasonably suited to the trust.
C. Among circumstances that a trustee shall consider in
investing and managing trust assets are those of the
following as are relevant to the trust or its beneficiaries:
1. General economic conditions;
2. The possible effect of inflation or deflation;
3. The expected tax consequences of investment
decisions or strategies;
4. The role that each investment or course of action
plays within the overall trust portfolio, which may
include financial assets, interests in closely held
enterprises, tangible and intangible personal property,
and real property;
5. The expected total return from income and the
appreciation of capital;
6. Other resources of the beneficiaries;
7. Needs for liquidity, regularity of income, and
preservation or appreciation of capital; and
8. An asset's special relationship or special value, if
any, to the purposes of the trust or to one or more of
the beneficiaries.
D. A trustee shall make a reasonable effort to verify
facts relevant to the investment and management of trust
assets.
E. A trustee may invest in any kind of property or type
of investment consistent with the standards of the
Oklahoma Uniform Prudent Investor Act.
F. A trustee who has special skills or expertise, or is
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named trustee in reliance upon the trustee's representation
that the trustee has special skills or expertise, has a duty to
use those special skills or expertise.
§ 175.63. Diversification
A trustee shall diversify the investments of the trust
unless the trustee reasonably determines that, because of
special circumstances, the purposes of the trust are better
served without diversifying.
§ 175.64. Duties at inception of trusteeship
Within a reasonable time after accepting a trusteeship
or receiving trust assets, a trustee shall review the trust
assets and make and implement decisions concerning the
retention and disposition of assets, in order to bring the
trust portfolio into compliance with the purposes, terms,
distribution requirements, and other circumstances of the
trust and with the requirements of the Oklahoma Uniform
Prudent Investor Act.
§ 175.65. Loyalty
A trustee shall invest and manage the trust assets solely
in the interest of the beneficiaries.
§ 175.66. Impartiality
If a trust has two or more beneficiaries, the trustee shall
act impartially in investing and managing the trust assets,
taking into account any differing interests of the
beneficiaries.
§ 175.67. Investment costs
In investing and managing trust assets, a trustee may
only incur costs that are appropriate and reasonable in
relation to the assets, the purposes of the trust, and the
skills of the trustee.
§ 175.68. Reviewing compliance
Compliance with the prudent investor rule is
determined in light of the facts and circumstances existing
at the time of a trustee's decision or action and not by
hindsight.
§ 175.69. Delegation of investment and management
functions
A. A trustee may delegate investment and management
functions that a prudent trustee of comparable skills could
properly delegate under the circumstances. The trustee shall
exercise reasonable care, skill, and caution in:
1. Selecting an agent;
2. Establishing the scope and terms of the delegation,
consistent with the purposes and terms of the trust; and
3. Periodically reviewing the agent's actions in order to
monitor the agent's performance and compliance with
the terms of the delegation.
B. In performing a delegated function, an agent owes a
duty to the trust to exercise reasonable care to comply with
the terms of the delegation.
C. A trustee who complies with the requirements of
subsection A of this section is not liable to the beneficiaries
or to the trust for the decisions or actions of the agent to
whom the function was delegated.
D. By accepting the delegation of a trust function from
the trustee of a trust that is subject to the laws of this state,
an agent submits to the jurisdiction of the courts of this
state.
§ 175.70. Language invoking standard of the Oklahoma
Uniform Prudent Investor Act.
The following terms or comparable language in the
provisions of a trust, unless otherwise limited or modified,
authorizes any investment or strategy permitted under the
Oklahoma Uniform Prudent Investor Act: "Investments
permissible by law for investment of trust funds", "legal
investments", "authorized investments", "using the
judgment and care under the circumstances then prevailing
that persons of prudence, discretion, and intelligence
exercise in the management of their own affairs, not in
regard to speculation but in regard to the permanent
disposition of their funds, considering the probable income
as well as the probable safety of their capital", "prudent
man rule", "prudent trustee rule", "prudent person rule",
and "prudent investor rule".
§ 175.71. Application to existing trusts
The Oklahoma Uniform Prudent Investor Act applies to
trusts existing on and created after its effective date. As
applied to trusts existing on its effective date, this act
governs only decisions or actions occurring after that date.
§ 175.72. Uniformity of application and construction
The Oklahoma Uniform Prudent Investor Act shall be
applied and construed to effectuate its general purpose to
make uniform the law with respect to the subject of this act
among the states enacting it.
OKLAHOMA UNIFORM PRINCIPAL AND
INCOME ACT
ARTICLE 1. DEFINITIONS AND FIDUCIARY
DUTIES
§ 175.101. Short title
This act shall be known and may be cited as the
"Oklahoma Uniform Principal and Income Act".
§ 175.102. Definitions
As used in this act:
1. "Accounting period" means a calendar year unless
Title 60 34
another twelve-month period is selected by a fiduciary.
The term includes a portion of a calendar year or other
twelve-month period that begins when an income
interest begins or ends when an income interest ends;
2. "Beneficiary" includes, in the case of a decedent's
estate, an heir, legatee, and devisee and, in the case of a
trust, an income beneficiary and a remainder
beneficiary;
3. "Fiduciary" means a personal representative or a
trustee. The term includes an executor, administrator,
successor personal representative, special
administrator, and a person performing substantially
the same function;
4. "Income" means money or property that a fiduciary
receives as current return from a principal asset. The
term includes a portion of receipts from a sale,
exchange, or liquidation of a principal asset, to the
extent provided in Article 4 of this act;
5. "Income beneficiary" means a person to whom net
income of a trust is or may be payable;
6. "Income interest" means the right of an income
beneficiary to receive all or part of net income, whether
the terms of the trust require it to be distributed or
authorize it to be distributed in the trustee's discretion;
7. "Mandatory income interest" means the right of an
income beneficiary to receive net income that the terms
of the trust require the fiduciary to distribute;
8. "Net income" means the total receipts allocated to
income during an accounting period minus the
disbursements made from income during the period,
plus or minus transfers under this act to or from income
during the period;
9. "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability
company, association, joint venture, government;
governmental subdivision, agency, or instrumentality;
public corporation; or any other legal or commercial
entity;
10. "Principal" means property held in trust for
distribution to a remainder beneficiary when the trust
terminates;
11. "Remainder beneficiary" means a person entitled to
receive principal when an income interest ends;
12. "Terms of a trust" means the manifestation of the
intent of a settlor or decedent with respect to the trust,
expressed in a manner that admits of its proof in a
judicial proceeding, whether by written or spoken
words or by conduct; and
13. "Trustee" includes an original, additional, or
successor trustee, whether or not appointed or
confirmed by a court.
§ 175.103. Fiduciary duties--General principles
A. In allocating receipts and disbursements to or
between principal and income, and with respect to any
matter within the scope of Articles 2 and 3 of this act, a
fiduciary:
1. Shall administer a trust or estate in accordance with
the terms of the trust or the will, even if there is a
different provision in this act;
2. May administer a trust or estate by the exercise of a
discretionary power of administration given to the
fiduciary by the terms of the trust or the will, even if
the exercise of the power produces a result different
from a result required or permitted by this act;
3. Shall administer a trust or estate in accordance with
this act if the terms of the trust or the will do not
contain a different provision or do not give the
fiduciary a discretionary power of administration; and
4. Shall add a receipt or charge a disbursement to
principal to the extent that the terms of the trust and
this act do not provide a rule for allocating the receipt
or disbursement to or between principal and income.
B. In exercising the power to adjust under subsection A
of Section 4 of this act or a discretionary power of
administration regarding a matter within the scope of this
act, whether granted by the terms of a trust, a will, or this
act, a fiduciary shall administer a trust or estate impartially,
based on what is fair and reasonable to all of the
beneficiaries, except to the extent that the terms of the trust
or the will clearly manifest an intention that the fiduciary
shall or may favor one or more of the beneficiaries. A
determination in accordance with this act is presumed to be
fair and reasonable to all of the beneficiaries.
§ 175.104. Trustee's power to adjust
A. A trustee may adjust between principal and income
to the extent the trustee considers necessary if the trustee
invests and manages trust assets as a prudent investor, the
terms of the trust describe the amount that may or must be
distributed to a beneficiary by referring to the trust's
income, and the trustee determines, after applying the rules
in subsection A of Section 175.103 of Title 60 of the
Oklahoma Statutes, that the trustee is unable to comply
with subsection B of Section 175.103 of Title 60 of the
Oklahoma Statutes.
B. In deciding whether and to what extent to exercise
Title 60 35
the power conferred by subsection A of this section, a
trustee shall consider all factors relevant to the trust and its
beneficiaries, including the following factors to the extent
they are relevant:
1. The nature, purpose, and expected duration of the
trust;
2. The intent of the settlor;
3. The identity and circumstances of the beneficiaries;
4. The needs for liquidity, regularity of income, and
preservation and appreciation of capital;
5. The assets held in the trust; the extent to which they
consist of financial assets, interests in closely held
enterprises, tangible and intangible personal property,
or real property; the extent to which an asset is used by
a beneficiary; and whether an asset was purchased by
the trustee or received from the settlor;
6. The net amount allocated to income under the other
sections of this act and the increase or decrease in the
value of the principal assets, which the trustee may
estimate as to assets for which market values are not
readily available;
7. Whether and to what extent the terms of the trust
give the trustee the power to invade principal or
accumulate income or prohibit the trustee from
invading principal or accumulating income, and the
extent to which the trustee has exercised a power from
time to time to invade principal or accumulate income;
8. The actual and anticipated effect of economic
conditions on principal and income and effects of
inflation and deflation; and
9. The anticipated tax consequences of an adjustment.
C. A trustee may not make an adjustment:
1. That diminishes the income interest in a trust that
requires all of the income to be paid at least annually to
a spouse and for which an estate tax or gift tax marital
deduction would be allowed, in whole or in part, if the
trustee did not have the power to make the adjustment;
2. That reduces the actuarial value of the income
interest in a trust to which a person transfers property
with the intent to qualify for a gift tax exclusion;
3. That changes the amount payable to a beneficiary as
a fixed annuity or a fixed fraction of the value of the
trust assets;
4. From any amount that is permanently set aside for
charitable purposes under a will or the terms of a trust
unless both income and principal are so set aside;
5. If possessing or exercising the power to make an
adjustment causes an individual to be treated as the
owner of all or part of the trust for income tax
purposes, and the individual would not be treated as the
owner if the trustee did not possess the power to make
an adjustment;
6. If possessing or exercising the power to make an
adjustment causes all or part of the trust assets to be
included for estate tax purposes in the estate of an
individual who has the power to remove a trustee or
appoint a trustee, or both, and the assets would not be
included in the estate of the individual if the trustee did
not possess the power to make an adjustment;
7. If the trustee is a beneficiary of the trust (except
where the trustee is a charitable, religious or
educational organization recognized as tax exempt
under Section 501(c)(3) of the Internal Revenue Code
and as a beneficiary will hold the beneficial interest as
an institutional endowment fund as that term is defined
in the Oklahoma Uniform Management of Institutional
Endowment Funds Act solely for the benefit of one or
more other charitable, religious or educational
organizations recognized as tax exempt under Section
501(c)(3) of the Internal Revenue Code); or
8. If the trustee is not a beneficiary, but the adjustment
would benefit the trustee directly or indirectly.
D. If paragraph 5, 6, 7, or 8 of subsection C of this
section applies to a trustee and there is more than one
trustee, a cotrustee to whom the provision does not apply
may make the adjustment unless the exercise of the power
by the remaining trustee or trustees is not permitted by the
terms of the trust.
E. A trustee may release the entire power conferred by
subsection A of this section or may release only the power
to adjust from income to principal or the power to adjust
from principal to income if the trustee is uncertain a bout
whether possessing or exercising the power will cause a
result described in paragraphs 1 through 6 or 8 of
subsection C of this section or if the trustee determines that
possessing or exercising the power will or may deprive the
trust of a tax benefit or impose a tax burden not described
in subsection C of this section. The release may be
permanent or for a specified period, including a period
measured by the life of an individual.
F. Terms of a trust that limit the power of a trustee to
make an adjustment between principal and income do not
affect the application of this section unless it is clear from
the terms of the trust that the terms are intended to deny the
trustee the power of adjustment conferred by subsection A
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of this section.
ARTICLE 2. DECEDENT'S ESTATE OR
TERMINATING INCOME INTEREST
§ 175.201. Determination and distribution of net income
After a decedent dies, in the case of an estate, or after
an income interest in a trust ends, the following rules
apply:
1. A fiduciary of an estate or of a terminating income
interest shall determine the amount of net income and
net principal receipts received from property
specifically given to a beneficiary under the rules in
Articles 3 through 5 of this act which apply to trustees
and the rules in paragraph 5 of this section. The
fiduciary shall distribute the net income and net
principal receipts to the beneficiary who is to receive
the specific property;
2. A fiduciary shall determine the remaining net income
of a decedent's estate or a terminating income interest
under the rules in Articles 3 through 5 of this act which
apply to trustees and by:
a. including in net income all income from property
used to discharge liabilities,
b. paying from income or principal, in the
fiduciary's discretion, fees of attorneys,
accountants, and fiduciaries; court costs and other
expenses of administration; and interest on death
taxes, but the fiduciary may pay those expenses
from income of property passing to a trust for
which the fiduciary claims an estate tax marital or
charitable deduction only to the extent that the
payment of those expenses from income will not
cause the reduction or loss of the deduction, and
c. paying from principal all other disbursements
made or incurred in connection with the settlement
of a decedent's estate or the winding up of a
terminating income interest, including debts,
funeral expenses, disposition of remains, family
allowances, and death taxes and related penalties
that are apportioned to the estate or terminating
income interest by the will, the terms of the trust, or
applicable law;
3. A fiduciary shall distribute to a beneficiary who
receives a pecuniary amount outright the interest or any
other amount provided by the will, the terms of the
trust, or applicable law from net income determined
under paragraph 2 of this section or from principal to
the extent that net income is insufficient. If a
beneficiary is to receive a pecuniary amount outright
from a trust after an income interest ends and no
interest or other amount is provided for by the terms of
the trust or applicable law, the fiduciary shall distribute
the interest or other amount to which the beneficiary
would be entitled under applicable law if the pecuniary
amount were required to be paid under a will;
4. A fiduciary shall distribute the net income remaining
after distributions required by paragraph 3 of this
section in the manner described in Section 6 of this act
to all other beneficiaries, including a beneficiary who
receives a pecuniary amount in trust, even if the
beneficiary holds an unqualified power to withdraw
assets from the trust or other presently exercisable
general power of appointment over the trust;
5. A fiduciary may not reduce principal or income
receipts from property described in paragraph 1 of this
section because of a payment described in Section 25
or 26 of this act to the extent that the will, the terms of
the trust, or applicable law requires the fiduciary to
make the payment from assets other than the property
or to the extent that the fiduciary recovers or expects to
recover the payment from a third party. The net income
and principal receipts from the property are determined
by including all of the amounts the fiduciary receives
or pays with respect to the property, whether those
amounts accrued or became due before, on, or after the
date of a decedent's death or an income interest's
terminating event, and by making a reasonable
provision for amounts that the fiduciary believes the
estate or terminating income interest may become
obligated to pay after the property is distributed.
§ 175.202. Distribution to residuary and remainder
beneficiaries
A. Each beneficiary described in paragraph 4 of
Section 175.201 of Title 60 of the Oklahoma Statutes is
entitled to receive a portion of the net income equal to the
beneficiary's fractional interest in undistributed principal
assets, using values as of the distribution date. If a fiduciary
makes more than one distribution of assets to beneficiaries
to whom this section applies, each beneficiary, including
one who does not receive part of the distribution, is
entitled, as of each distribution date, to the net income the
fiduciary has received after the date of death or terminating
event or earlier distribution date but has not distributed as
of the current distribution date.
B. In determining a beneficiary's share of net income,
the following rules apply:
1. The beneficiary is entitled to receive a portion of the
net income equal to the beneficiary's fractional interest
in the undistributed principal assets immediately before
the distribution date, including assets that later may be
sold to meet principal obligations;
2. The beneficiary's fractional interest in the
undistributed principal assets must be calculated
without regard to property specifically given to a
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beneficiary and property required to pay pecuniary
amounts not in trust;
3. The beneficiary's fractional interest in the
undistributed principal assets must be calculated on the
basis of the aggregate value of those assets as of the
distribution date without reducing the value by any
unpaid principal obligation; and
4. The distribution date for purposes of this section
may be the date as of which the fiduciary calculates the
value of the assets if that date is reasonably near the
date on which assets are actually distributed.
C. If a fiduciary does not distribute all of the collected
but undistributed net income to each person as of a
distribution date, the fiduciary shall maintain appropriate
records showing the interest of each beneficiary in that net
income.
D. A fiduciary may apply the rules in this section, to
the extent that the fiduciary considers it appropriate, to net
gain or loss realized after the date of death or terminating
event or earlier distribution date from the disposition of a
principal asset if this section applies to the income from the
asset.
ARTICLE 3. APPORTIONMENT AT BEGINNING
AND END OF INCOME INTEREST
§ 175.301. When right to income begins and ends
A. An income beneficiary is entitled to net income from
the date on which the income interest begins. An income
interest begins on the date specified in the terms of the trust
or, if no date is specified, on the date an asset becomes
subject to a trust or successive income interest.
B. An asset becomes subject to a trust:
1. On the date it is transferred to the trust in the case of
an asset that is transferred to a trust during the
transferor's life;
2. On the date of a testator's death in the case of an
asset that becomes subject to a trust by reason of a will,
even if there is an intervening period of administration
of the testator's estate; or
3. On the date of an individual's death in the case of an
asset that is transferred to a fiduciary by a third party
because of the individual's death.
C. An asset becomes subject to a successive income
interest on the day after the preceding income interest ends,
as determined under subsection D of this section, even if
there is an intervening period of administration to wind up
the preceding income interest.
D. An income interest ends on the day before an
income beneficiary dies or another terminating event
occurs, or on the last day of a period during which there is
no beneficiary to whom a trustee may distribute income.
§ 175.302. Apportionment of receipts and disbursements
when decedent dies or income interest begins
A. A trustee shall allocate an income receipt or
disbursement other than one to which paragraph 1 of
Section 5 of this act applies to principal if its due date
occurs before a decedent dies in the case of an estate or
before an income interest begins in the case of a trust or
successive income interest.
B. A trustee shall allocate an income receipt or
disbursement to income if its due date occurs on or after
the date on which a decedent dies or an income interest
begins and it is a periodic due date. An income receipt or
disbursement must be treated as accruing from day to day if
its due date is not periodic or it has no due date. The
portion of the receipt or disbursement accruing before the
date on which a decedent dies or an income interest begins
must be allocated to principal and the balance must be
allocated to income.
C. An item of income or an obligation is due on the
date the payer is required to make a payment. If a payment
date is not stated, there is no due date for the purposes of
this act. Distributions to shareholders or other owners from
an entity to which Section 10 of this act applies are deemed
to be due on the date fixed by the entity for determining
who is entitled to receive the distribution or, if no date is
fixed, on the declaration date for the distribution. A due
date is periodic for receipts or disbursements that must be
paid at regular intervals under a lease or an obligation to
pay interest or if an entity customarily makes distributions
at regular intervals.
§ 175.303. Apportionment when income interest ends
A. In this section, "undistributed income" means net
income received before the date on which an income
interest ends. The term does not include an item of income
or expense that is due or accrued or net income that has
been added or is required to be added to principal under the
terms of the trust.
B. When a mandatory income interest ends, the trustee
shall pay to a mandatory income beneficiary who survives
that date, or the estate of a deceased mandatory income
beneficiary whose death causes the interest to end, the
beneficiary's share of the undistributed income that is not
disposed of under the terms of the trust unless the
beneficiary has an unqualified power to revoke more than
five percent (5%) of the trust immediately before the
income interest ends. In the latter case, the undistributed
income from the portion of the trust that may be revoked
must be added to principal.
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C. When a trustee's obligation to pay a fixed annuity or
a fixed fraction of the value of the trust's assets ends, the
trustee shall prorate the final payment if and to the extent
required by applicable law to accomplish a purpose of the
trust or its settlor relating to income, gift, estate, or other
tax requirements.
ARTICLE 4. ALLOCATION OF RECEIPTS DURING
ADMINISTRATION OF TRUST
PART 1. RECEIPTS FROM ENTITIES
§ 175.401. Character of receipts
A. In this section, "entity" means a corporation,
partnership, limited liability company, regulated investment
company, real estate investment trust, common trust fund,
or any other organization in which a trustee has an interest
other than a trust or estate to which Section 11 of this act
applies, a business or activity to which Section 12 of this
act applies, or an asset-backed security to which Section 24
of this act applies.
B. Except as otherwise provided in this section, a
trustee shall allocate to income money received from an
entity.
C. A trustee shall allocate the following receipts from
an entity to principal:
1. Property other than money;
2. Money received in one distribution or a series of
related distributions in exchange for part or all of a
trust's interest in the entity;
3. Money received in total or partial liquidation of the
entity; and
4. Money received from an entity that is a regulated
investment company or a real estate investment trust if
the money distributed is a capital gain dividend for
federal income tax purposes.
D. Money is received in partial liquidation:
1. To the extent that the entity, at or near the time of a
distribution, indicates that it is a distribution in partial
liquidation; or
2. If the total amount of money and property received
in a distribution or series of related distributions is
greater than twenty percent (20%) of the entity's gross
assets, as shown by the entity's year-end financial
statements immediately preceding the initial receipt.
E. Money is not received in partial liquidation, nor may
it be taken into account under paragraph 2 of subsection D
of this section, to the extent that it does not exceed the
amount of income tax that a trustee or beneficiary must pay
on taxable income of the entity that distributes the money.
F. A trustee may rely upon a statement made by an
entity about the source or character of a distribution if the
statement is made at or near the time of distribution by the
entity's board of directors or other person or group of
persons authorized to exercise powers to pay money or
transfer property comparable to those of a corporation's
board of directors.
§ 175.402. Distribution from trust or estate
A trustee shall allocate to income an amount received
as a distribution of income from a trust or an estate in
which the trust has an interest other than a purchased
interest, and shall allocate to principal an amount received
as a distribution of principal from such a trust or estate. If a
trustee purchases an interest in a trust that is an investment
entity, or a decedent or donor transfers an interest in such a
trust to a trustee, Section 10 or 24 of this act applies to a
receipt from the trust.
§ 175.403. Business and other activities conducted by
trustee
A. If a trustee who conducts a business or other activity
determines that it is in the best interest of all the
beneficiaries to account separately for the business or
activity instead of accounting for it as part of the trust's
general accounting records, the trustee may maintain
separate accounting records for its transactions, whether or
not its assets are segregated from other trust assets.
B. A trustee who accounts separately for a business or
other activity may determine the extent to which its net
cash receipts must be retained for working capital, the
acquisition or replacement of fixed assets, and other
reasonably foreseeable needs of the business or activity,
and the extent to which the remaining net cash receipts are
accounted for as principal or income in the trust's general
accounting records. If a trustee sells assets of the business
or other activity, other than in the ordinary course of the
business or activity, the trustee shall account for the net
amount received as principal in the trust's general
accounting records to the extent the trustee determines that
the amount received is no longer required in the conduct of
the business.
C. Activities for which a trustee may maintain separate
accounting records include:
1. Retail, manufacturing, service, and other traditional
business activities;
2. Farming;
3. Raising and selling livestock and other animals;
4. Management of rental properties;
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5. Extraction of minerals and other natural resources;
6. Timber operations; and
7. Activities to which Section 23 of this act applies.
ARTICLE 4. ALLOCATION OF RECEIPTS DURING
ADMINISTRATION OF TRUST
PART 2. RECEIPTS NOT NORMALLY
APPORTIONED
§ 175.404. Principal receipts
A trustee shall allocate to principal:
1. To the extent not allocated to income under this act,
assets received from a transferor during the transferor's
lifetime, a decedent's estate, a trust with a terminating
income interest, or a payer under a contract naming the
trust or its trustee as beneficiary;
2. Money or other property received from the sale,
exchange, liquidation, or change in form of a principal
asset, including realized profit, subject to this article;
3. Amounts recovered from third parties to reimburse
the trust because of disbursements described in
paragraph 7 of subsection A of Section 26 of this act or
for other reasons to the extent not based on the loss of
income;
4. Proceeds of property taken by eminent domain, but a
separate award made for the loss of income with
respect to an accounting period during which a current
income beneficiary had a mandatory income interest is
income;
5. Net income received in an accounting period during
which there is no beneficiary to whom a trustee may or
must distribute income; and
6. Other receipts as provided in Part 3 of this article.
§ 175.405. Rental property
To the extent that a trustee accounts for receipts from
rental property pursuant to this section, the trustee shall
allocate to income an amount received as rent of real or
personal property, including an amount received for
cancellation or renewal of a lease. An amount received as a
refundable deposit, including a security deposit or a deposit
that is to be applied as rent for future periods, must be
added to principal and held subject to the terms of the lease
and is not available for distribution to a beneficiary until
the trustee's contractual obligations have been satisfied
with respect to that amount.
§ 175.406. Obligation to pay money
A. An amount received as interest, whether determined
at a fixed, variable, or floating rate, on an obligation to pay
money to the trustee, including an amount received as
consideration for prepaying principal, must be allocated to
income without any provision for amortization of premium.
B. A trustee shall allocate to principal an amount
received from the sale, redemption, or other disposition of
an obligation to pay money to the trustee more than one
year after it is purchased or acquired by the trustee,
including an obligation the purchase price or value of
which when it is acquired is less than its value at maturity.
If the obligation matures within one (1) year after it is
purchased or acquired by the trustee, an amount received in
excess of its purchase price or its value when acquired by
the trust must be allocated to income.
C. This section does not apply to obligations to which
Section 18, 19, 20, 21, 23, or 24 of this act applies.
§ 175.407. Insurance policies and similar contracts
A. Except as otherwise provided in subsection B of this
section, a trustee shall allocate to principal the proceeds of
a life insurance policy or other contract in which the trust
or its trustee is named as beneficiary, including a contract
that insures the trust or its trustee against loss for damage
to, destruction of, or loss of title to a trust asset. The trustee
shall allocate dividends on an insurance policy to income if
the premiums on the policy are paid from income, and to
principal if the premiums are paid from principal.
B. A trustee shall allocate to income proceeds of a
contract that insures the trustee against loss of occupancy
or other use by an income beneficiary, loss of income, or,
subject to Section 12 of this act, loss of profits from a
business.
C. This section does not apply to a contract to which
Section 18 of this act applies.
ARTICLE 4. ALLOCATION OF RECEIPTS DURING
ADMINISTRATION OF TRUST
PART 3. RECEIPTS NORMALLY APPORTIONED
§ 175.408. Insubstantial allocations not required
If a trustee determines that an allocation between
principal and income required by Section 18, 19, 20, 21, or
24 of this act is insubstantial, the trustee may allocate the
entire amount to principal unless one of the circumstances
described in subsection C of Section 4 of this act applies to
the allocation. This power may be exercised by a cotrustee
in the circumstances described in subsection D of Section 4
of this act and may be released for the reasons and in the
manner described in subsection E of Section 4 of this act.
An allocation is presumed to be insubstantial if:
1. The amount of the allocation would increase or
decrease net income in an accounting period, as
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determined before the allocation, by less than ten
percent (10%); or
2. The value of the asset producing the receipt for
which the allocation would be made is less than ten
percent (10%) of the total value of the trust's assets at
the beginning of the accounting period.
§ 175.409. Deferred compensation, annuities, and
similar payments
A. In this section, "payment" means a payment that a
trustee may receive over a fixed number of years or during
the life of one or more individuals because of services
rendered or property transferred to the payer in exchange
for future payments. The term includes a payment made in
money or property from the payer's general assets or from a
separate fund created by the payer, including a private or
commercial annuity, an individual retirement account, and
a pension, profit-sharing, stock-bonus, or stock-ownership
plan.
B. To the extent that a payment is characterized as
interest or a dividend or a payment made in lieu of interest
or a dividend, a trustee shall allocate it to income. The
trustee shall allocate to principal the balance of the
payment and any other payment received in the same
accounting period that is not characterized as interest, a
dividend, or an equivalent payment.
C. If no part of a payment is characterized as interest, a
dividend, or an equivalent payment, and all or part of the
payment is required to be made, a trustee shall allocate to
income ten percent (10%) of the part that is required to be
made during the accounting period and the balance to
principal. If no part of a payment is required to be made or
the payment received is the entire amount to which the
trustee is entitled, the trustee shall allocate the entire
payment to principal. For purposes of this subsection, a
payment is not "required to be made" to the extent that it is
made because the trustee exercises a right of withdrawal.
D. If, to obtain an estate tax marital deduction for a
trust, a trustee must allocate more of a payment to income
than provided for by this section, the trustee shall allocate
to income the additional amount necessary to obtain the
marital deduction.
E. This section does not apply to payments to which
Section 19 of this act applies.
§ 175.410. Liquidating asset
A. In this section, "liquidating asset" means an asset
whose value will diminish or terminate because the asset is
expected to produce receipts for a period of limited
duration. The term includes a leasehold, patent, copyright,
royalty right, and right to receive payments during a period
of more than one (1) year under an arrangement that does
not provide for the payment of interest on the unpaid
balance. The term does not include a payment subject to
Section 18 of this act, resources subject to Section 20 of
this act, timber subject to Section 21 of this act, an activity
subject to Section 23 of this act, an asset subject to Section
24 of this act, or any asset for which the trustee establishes
a reserve for depreciation under Section 27 of this act.
B. A trustee shall allocate to income ten percent (10%)
of the receipts from a liquidating asset and the balance to
principal.
§ 175.411. Minerals, water, and other natural resources
A. To the extent that a trustee accounts for receipts
from an interest in minerals or other natural resources
pursuant to this section, the trustee shall allocate them as
follows:
1. If received as a bonus, delay rental or annual rent on
a lease, a receipt of less than One Thousand Dollars
($1,000.00) must be allocated to income and a receipt
of One Thousand Dollars ($1,000.00) or more must be
allocated fifteen percent (15%) to principal and
eighty-five percent (85%) to income;
2. If received from a production payment, a receipt
must be allocated to income if and to the extent that the
agreement creating the production payment provides a
factor for interest or its equivalent. The balance must be
allocated to principal;
3. If received as a royalty, shut-in-well payment, or
take-or-pay payment, a receipt must be allocated fifteen
percent (15%) to principal and eighty-five percent
(85%) to income;
4. If an amount is received from a working interest or
any other interest not provided for in paragraph 1, 2, or
3 of this subsection, a receipt must be allocated fifteen
percent (15%) to principal and eighty-five percent
(85%) to income.
B. An amount received on account of an interest in
water that is renewable must be allocated to income. If the
water is not renewable, ninety percent (90%) of the amount
must be allocated to principal and the balance to income.
C. This act applies whether or not a decedent or donor
was extracting minerals, water, or other natural resources
before the interest became subject to the trust.
D. If a trust exists on the effective date of this act, the
trustee may allocate receipts from an interest in minerals,
water, or other natural resources as provided in this act or
in the manner used by the trustee before the effective date
of this act. For every trust created after the effective date of
this act, the trustee shall allocate receipts from an interest in
minerals, water, or other natural resources as provided in
Title 60 41
this act. If and to the extent that the terms of a trust
expressly provide for a different allocation of receipts or
grants the trustee discretionary authority to determine the
amount of the allocation, this act shall not apply to those
receipts.
§ 175.412. Timber
A. To the extent that a trustee accounts for receipts
from the sale of timber and related products pursuant to this
section, the trustee shall allocate the net receipts:
1. To income to the extent that the amount of timber
removed from the land does not exceed the estimated
rate of growth of the timber during the accounting
periods in which a beneficiary has a mandatory income
interest;
2. To principal to the extent that the amount of timber
removed from the land exceeds the estimated rate of
growth of the timber or the net receipts are from the
sale of standing timber;
3. To or between income and principal if the net
receipts are from the lease of timberland or from a
contract to cut timber from land owned by a trust, by
determining the amount of timber removed from the
land under the lease or contract and applying the rules
in paragraphs 1 and 2 of this subsection; or
4. To principal to the extent that advance payments,
bonuses, and other payments are not allocated pursuant
to paragraph 1, 2, or 3 of this subsection.
B. In determining net receipts to be allocated pursuant
to subsection A of this section, a trustee may deduct and
transfer to principal a reasonable amount for depletion.
C. This act applies whether or not a decedent or
transferor was harvesting timber from the property before it
became subject to the trust.
D. If a trust exists on the effective date of this act, the
trustee may allocate receipts from an interest in timber as
provided in this act or in the manner used by the trustee
before the effective date of this act. For every trust created
after the effective date of this act, the trustee shall allocate
receipts from an interest in timber as provided in this act. If
and to the extent that the terms of a trust expressly provide
for a different allocation of receipts or grants the trustee
discretionary authority to determine the amount of the
allocation, this act shall not apply to those receipts.
§ 175.413. Property not productive of income
A. If a marital deduction is allowed for all or part of a
trust whose assets consist substantially of property that
does not provide the spouse with sufficient income from or
use of the trust assets, and if the amounts that the trustee
transfers from principal to income under Section 175.104
of Title 60 of the Oklahoma Statutes and distributes to the
spouse from principal pursuant to the terms of the trust are
insufficient to provide the spouse with the beneficial
enjoyment required to obtain the marital deduction, the
spouse may require the trustee to make property productive
of income, convert property within a reasonable time, or
exercise the power conferred by subsection A of Section
175.104 of Title 60 of the Oklahoma Statutes. The trustee
may decide which action or combination of actions to take.
B. In cases not governed by subsection A of this
section, proceeds from the sale or other disposition of an
asset are principal without regard to the amount of income
the asset produces during any accounting period.
§ 175.414. Derivatives and options
A. In this section, "derivative" means a contract or
financial instrument or a combination of contracts and
financial instruments which gives a trust the right or
obligation to participate in some or all changes in the price
of a tangible or intangible asset or group of assets, or
changes in a rate, an index of prices or rates, or other
market indicator for an asset or a group of assets.
B. To the extent that a trustee accounts for transactions
in derivatives pursuant to this section, the trustee shall
allocate to principal receipts from and disbursements made
in connection with those transactions.
C. If a trustee grants an option to buy property from the
trust, whether or not the trust owns the property when the
option is granted, grants an option that permits another
person to sell property to the trust, or acquires an option to
buy property for the trust or an option to sell an asset
owned by the trust, and the trustee or other owner of the
asset is required to deliver the asset if the option is
exercised, an amount received for granting the option must
be allocated to principal. An amount paid to acquire the
option must be paid from principal. A gain or loss realized
upon the exercise of an option, including an option granted
to a settlor of the trust for services rendered, must be
allocated to principal.
§ 175.415. Asset-backed securities
A. In this section, "asset-backed security" means an
asset whose value is based upon the right it gives the owner
to receive distributions from the proceeds of financial
assets that provide collateral for the security. The term
includes an asset that gives the owner the right to receive
from the collateral financial assets only the interest or other
current return or only the proceeds other than interest or
current return. The term does not include an asset to which
Section 10 or 18 of this act applies.
B. If a trust receives a payment from interest or other
current return and from other proceeds of the collateral
financial assets, the trustee shall allocate to income the
Title 60 42
portion of the payment which the payer identifies as being
from interest or other current return and shall allocate the
balance of the payment to principal.
C. If a trust receives one or more payments in exchange
for the trust's entire interest in an asset-backed security in
one accounting period, the trustee shall allocate the
payments to principal. If a payment is one of a series of
payments that will result in the liquidation of the trust's
interest in the security over more than one accounting
period, the trustee shall allocate ten percent (10%) of the
payment to income and the balance to principal.
ARTICLE 5. ALLOCATION OF DISBURSEMENTS
DURING ADMINISTRATION OF TRUST
§ 175.501. Disbursements from income
A trustee shall make the following disbursements from
income to the extent that they are not disbursements to
which subparagraph b or c of paragraph 2 of Section 5 of
this act applies:
1. One-half of the regular compensation of the trustee
and of any person providing investment advisory or
custodial services to the trustee;
2. One-half of all expenses for accountings, judicial
proceedings, or other matters that involve both the
income and remainder interests;
3. All of the other ordinary expenses incurred in
connection with the administration, management, or
preservation of trust property and the distribution of
income, including interest, ordinary repairs, regularly
recurring taxes assessed against principal, and expenses
of a proceeding or other matter that concerns primarily
the income interest; and
4. Recurring premiums on insurance covering the loss
of a principal asset or the loss of income from or use of
the asset.
§ 175.502. Disbursements from principal
A. A trustee shall make the following disbursements
from principal:
1. The remaining one-half of the disbursements
described in paragraph 1 and 2 of Section 25 of this
act;
2. All of the trustee's compensation calculated on
principal as a fee for acceptance, distribution, or
termination, and disbursements made to prepare
property for sale;
3. Payments on the principal of a trust debt;
4. Expenses of a proceeding that concerns primarily
principal, including a proceeding to construe the trust
or to protect the trust or its property;
5. Premiums paid on a policy of insurance not
described in paragraph 4 of Section 25 of this act of
which the trust is the owner and beneficiary;
6. Estate, inheritance, and other transfer taxes,
including penalties, apportioned to the trust; and
7. Disbursements related to environmental matters,
including reclamation, assessing environmental
conditions, remedying and removing environmental
contamination, monitoring remedial activities and the
release of substances, preventing future releases of
substances, collecting amounts from persons liable or
potentially liable for the costs of those activities,
penalties imposed under environmental laws or
regulations and other payments made to comply with
those laws or regulations, statutory or common law
claims by third parties, and defending claims based on
environmental matters.
B. If a principal asset is encumbered with an obligation
that requires income from that asset to be paid directly to
the creditor, the trustee shall transfer from principal to
income an amount equal to the income paid to the creditor
in reduction of the principal balance of the obligation.
§ 175.503. Transfers from income to principal for
depreciation
A. In this section, "depreciation" means a reduction in
value due to wear, tear, decay, corrosion, or gradual
obsolescence of a fixed asset having a useful life of more
than one (1) year.
B. A trustee may transfer to principal a reasonable
amount of the net cash receipts from a principal asset that is
subject to depreciation, but may not transfer any amount
for depreciation:
1. Of that portion of real property used or available for
use by a beneficiary as a residence or of tangible
personal property held or made available for the
personal use or enjoyment of a beneficiary;
2. During the administration of a decedent's estate; or
3. Under this section if the trustee is accounting under
Section 12 of this act for the business or activity in
which the asset is used.
C. An amount transferred to principal need not be held
as a separate fund.
§ 175.504. Transfers from income to reimburse
principal
A. If a trustee makes or expects to make a principal
disbursement described in this section, the trustee may
Title 60 43
transfer an appropriate amount from income to principal in
one or more accounting periods to reimburse principal or to
provide a reserve for future principal disbursements.
B. Principal disbursements to which subsection A of
this section applies include the following, but only to the
extent that the trustee has not been and does not expect to
be reimbursed by a third party:
1. An amount chargeable to income but paid from
principal because it is unusually large, including
extraordinary repairs;
2. A capital improvement to a principal asset, whether
in the form of changes to an existing asset or the
construction of a new asset, including special
assessments;
3. Disbursements made to prepare property for rental,
including tenant allowances, leasehold improvements,
and broker's commissions;
4. Periodic payments on an obligation secured by a
principal asset to the extent that the amount transferred
from income to principal for depreciation is less than
the periodic payments; and
5. Disbursements described in paragraph 7 of
subsection A of Section 26 of this act.
C. If the asset whose ownership gives rise to the
disbursements becomes subject to a successive income
interest after an income interest ends, a trustee may
continue to transfer amounts from income to principal as
provided in subsection A of this section.
§ 175.505. Income taxes
A. A tax required to be paid by a trustee based on
receipts allocated to income must be paid from income.
B. A tax required to be paid by a trustee based on
receipts allocated to principal must be paid from principal,
even if the tax is called an income tax by the taxing
authority.
C. A tax required to be paid by a trustee on the trust's
share of an entity's taxable income must be paid
proportionately:
1. From income to the extent that receipts from the
entity are allocated to income; and
2. From principal to the extent that:
a. receipts from the entity are allocated to principal,
and
b. the trust's share of the entity's taxable income
exceeds the total receipts described in paragraph 1
and subparagraph a of paragraph 2 of this section.
D. For purposes of this section, receipts allocated to
principal or income must be reduced by the amount
distributed to a beneficiary from principal or income for
which the trust receives a deduction in calculating the tax.
§ 175.506. Adjustments between principal and income
because of taxes
A. A fiduciary may make adjustments between
principal and income to offset the shifting of economic
interests or tax benefits between income beneficiaries and
remainder beneficiaries which arise from:
1. Elections and decisions, other than those described
in subsection B of this section, that the fiduciary makes
from time to time regarding tax matters;
2. An income tax or any other tax that is imposed upon
the fiduciary or a beneficiary as a result of a transaction
involving or a distribution from the estate or trust; or
3. The ownership by an estate or trust of an interest in
an entity whose taxable income, whether or not
distributed, is includable in the taxable income of the
estate, trust, or a beneficiary.
B. If the amount of an estate tax marital deduction or
charitable contribution deduction is reduced because a
fiduciary deducts an amount paid from principal for income
tax purposes instead of deducting it for estate tax purposes,
and as a result estate taxes paid from principal are increased
and income taxes paid by an estate, trust, or beneficiary are
decreased, each estate, trust, or beneficiary that benefits
from the decrease in income tax shall reimburse the
principal from which the increase in estate tax is paid. The
total reimbursement must equal the increase in the estate
tax to the extent that the principal used to pay the increase
would have qualified for a marital deduction or charitable
contribution deduction but for the payment. The
proportionate share of the reimbursement for each estate,
trust, or beneficiary whose income taxes are reduced must
be the same as its proportionate share of the total decrease
in income tax. An estate or trust shall reimburse principal
from income.
ARTICLE 6. MISCELLANEOUS PROVISIONS
§ 175.601. Uniformity of application and construction
In applying and construing this Uniform Act,
consideration must be given to the need to promote
uniformity of the law with respect to its subject matter
among states that enact it.
§ 175.602. Application of act to existing trusts and
estates
This act applies to every trust or decedent's estate
existing on the effective date of this act except as otherwise
expressly provided in the will or terms of the trust or in this
act.
Title 60 44
CHAPTER 15. DISCLAIMER OF INTERESTS
PASSING BY DEED, ASSIGNMENTS, ETC.
§ 751. Definitions
As used in this act, unless otherwise clearly required by
the context:
1. "Beneficiary" means and includes any person
entitled, but for his disclaimer, to take an interest, as
grantee; as donee; under any assignment or instrument
of conveyance or transfer; by succession to a
disclaimed interest, other than by will, intestate
succession or through the exercise or nonexercise of a
testamentary power of appointment; as beneficiary of
an inter vivos trust or insurance contract; pursuant to
the exercise or nonexercise of a nontestamentary power
of appointment; as donee of a power of appointment
created by a nontestamentary instrument; or otherwise
under any nontestamentary instrument;
2. "Interest" means and includes the whole of any
property, real or personal, legal or equitable, or any
fractional part, share or particular portion or specific
assets thereof or any estate in any such property
including but not limited to a joint tenancy interest in
any such property, or power to appoint, consume, apply
or expend property or any other right, power, privilege
or immunity relating thereto; and
3. "Disclaimer" means a written instrument which
declines, refuses, releases or disclaims an interest
which would otherwise be succeeded to by a
beneficiary, which instrument defines the nature and
extent of the interest disclaimed thereby and which
must be signed, witnessed and acknowledged by the
disclaimant in the manner provided for deeds of real
estate.
§ 752. Right to file disclaimer--Minor, incompetent or
deceased beneficiaries
A beneficiary may disclaim any interest in whole or in
part, or with reference to specific parts, shares, portions or
assets thereof, by filing a disclaimer in the manner
hereinafter provided. A guardian, executor, administrator or
other personal representative of the estate of a minor,
incompetent or deceased beneficiary, if he deems it in the
best interests of those interested in the estate of such
beneficiary and of those who take the beneficiary's interest
by virtue of the disclaimer and not detrimental to the best
interests of the beneficiary, with or without an order of the
probate court, may execute and file a disclaimer on behalf
of the beneficiary within the time and in the manner in
which the beneficiary himself could disclaim if he were
living, of legal age and competent. A beneficiary likewise
may execute and file a disclaimer by agent or attorney so
empowered.
§ 753. Time for filing disclaimer
Such disclaimer shall be filed at any time after the
creation of the interest, but in all events within nine (9)
months after the effective date of the nontestamentary
instrument creating the interest, or, if the disclaimant is not
then finally ascertained as a beneficiary or his interest has
not then become indefeasibly fixed both in quality and in
quantity, such disclaimer shall be filed not later than nine
(9) months after the event which would cause him so to
become finally ascertained and his interest to become
indefeasibly fixed both in quality and quantity. With
respect to a disclaimer, an interest which is a joint tenancy
interest in property shall not be considered to be
indefeasibly fixed both in quality and quantity until the
death of all but one of the persons owning such joint
tenancy interest.
§ 754. Place of filing disclaimer--Delivery of
copies--Interest in real estate
The disclaimer defined in Section 751 of this title shall
be effective upon being filed on the miscellaneous docket
in the office of the county clerk of any county of the State
of Oklahoma in which the district court would have
jurisdiction and venue of the matter. A copy of the
disclaimer shall be delivered or mailed to the trustee of any
trust in which the interest disclaimed exists or to any other
person who has legal title to, or possession of, the property
in which the interest disclaimed exists, and no such trustee
or person shall be liable for any otherwise proper
distribution or other disposition made without actual notice
of the disclaimer. If an interest in or relating to real estate is
disclaimed, the original of the disclaimer, or a copy of the
disclaimer certified as true and complete by the custodian
wherein the disclaimer has been filed, shall also be filed
with the county clerk in the county or counties where the
real estate is situated and shall constitute notice to all
persons only from and after the time of the filing.
§ 755. Disposition of interest disclaimed
Unless otherwise provided in the nontestamentary
instrument creating the interest with reference to the
possibility of a disclaimer by the beneficiary, the interest
disclaimed shall be distributed or otherwise be disposed of
in the same manner as if the disclaimant had died
immediately preceding the death or other event which
causes him to become finally ascertained as a beneficiary
and his interest to become indefeasibly fixed both in quality
and quantity and, in any case, the disclaimer shall relate for
all purposes to that date, whether filed before or after such
death or other event. However, one disclaiming an interest
in a nonresiduary gift under a trust instrument or otherwise
shall not be excluded, unless his disclaimer so provides,
from sharing in a gift of the residue even though, through
lapse, such residue includes the assets disclaimed. If the
disclaimer pertains to a joint tenancy interest in property,
the interest disclaimed shall be distributed or otherwise be
disposed of in the same manner as if the disclaimant had
died immediately preceding the death of the other person
Title 60 45
having a joint tenancy interest in the same property whose
death most closely preceded the effective date of the
disclaimer or, if no person having a joint tenancy interest
has died, then as if the disclaimant never owned the joint
tenancy interest which was disclaimed.
§ 756. Uniform Fraudulent Conveyances Act not
abrogated--Bar on right to disclaim in certain cases
Nothing included in this act shall be deemed to amend,
repeal or abrogate in any manner Title 24 O.S.1971, §§ 101
through 111, inclusive. Any voluntary assignment or
transfer of, or contract to assign or transfer, an interest in
real or personal property, or written waiver of the right to
disclaim the succession to an interest in real or personal
property, by any beneficiary, or any sale or other
disposition of an interest in real or personal property
pursuant to judicial process, made before he has
disclaimed, as herein provided, bars the right otherwise
hereby conferred on such beneficiary to disclaim as to such
interest.
§ 757. Spendthrift provisions--Binding effect of
disclaimer--Spouse of disclaimant
The right to disclaim granted by this act shall exist
irrespective of any limitation imposed on the interest of the
disclaimant in the nature of an express or implied
spendthrift provision or similar restriction. A disclaimer,
when filed as provided in this act, or a written waiver of the
right to disclaim, shall be binding upon the disclaimant or
beneficiary so waiving and all parties thereafter claiming
by, through or under him, except that a beneficiary so
waiving may thereafter transfer, assign or release his
interest if such is not prohibited by an express or implied
spendthrift provision. If an interest in real estate is
disclaimed and the disclaimer is duly filed in accordance
with the provisions of Section 4 of this act, the spouse of
the disclaimant, if such spouse has consented to the
disclaimer in writing, shall thereupon be automatically
debarred from any claim, right or interest in such real estate
to which such spouse, except for such disclaimer, would
have been entitled.
§ 758. Other rights not abridged
This act shall not abridge the right of any person, apart
from this act, under any existing or future statute or rule of
law, to disclaim any interest or to assign, convey, release,
renounce or otherwise dispose of any interest.
§ 759. Interests not fixed or finally ascertained--Right to
disclaim
Any interest which exists on the effective date of this
act but which has not then become indefeasibly fixed both
in quality and quantity, or the taker of which has not then
become finally ascertained, may be thereafter disclaimed in
the manner provided herein.
Title 84 46
TITLE 84. WILLS ANDSUCCESSION
Chapter 1. General Provisions
§ 1. Legacies classed
Legacies are distinguished and designated, according to
their nature, as follows:
1. A legacy of a particular thing, specified and
distinguished from all others of the same kind
belonging to the testator is specific; if such legacy fails,
resort cannot be had to the other property of the
testator.
2. A legacy is demonstrative when the particular fund
or personal property is pointed out from which it is to
be taken or paid; if such fund or property fails in whole
or in part, resort may be had to the general assets as in
case of a general legacy.
3. An annuity is a bequest of certain specified sums
periodically; if the fund or property out of which they
are payable fails, resort may be had to the general
assets, as in case of a general legacy.
4. A residuary legacy embraces only that which remains
after all the bequests of the will are discharged.
5. All other legacies are general legacies.
§ 2. All property of intestate subject to debts
When a person dies intestate, all his property, real and
personal, without any distinction between them, is
chargeable with the payment of his debts, except as
otherwise provided in this code and under civil procedure.
§ 3. Order of resort to property for payment of debts,
administration expenses and allowances
The property of a testator, except as otherwise
especially provided in this code and in the chapter on civil
procedure must be resorted to for the payment of debts in
the following order:
1. The property which is expressly appropriated by the
will for the payment of the debts.
2. Property not disposed of by the will.
3. Property which is devised or bequeathed to a
residuary legatee.
4. Property which is not specifically devised or
bequeathed, and,
5. All other property ratably. Before any debts are paid,
the expenses of the administration and the allowance to
the family must be paid or provided for.
§ 4. Order of resort to property for payment of legacies
The property of a testator, except as otherwise specially
provided in this code and under civil procedure, must be
resorted to for the payment of legacies in the following
order:
1. The property which is expressly appropriated by the
will for the payment of the legacies.
2. Property not disposed of by the will.
3. Property which is devised or bequeathed to a
residuary legatee.
4. Property which is specifically devised or bequeathed.
§ 5. Preferred legacies
Legacies to husband, widow or kindred of any class,
are chargeable only after legacies to persons not related to
the testator.
§ 6. Abatement takes effect how
Abatement takes place in any class only as between
legacies of that class, unless a different intention is
expressed in the will.
§ 7. Title and possession--Representative may sell
property devised
In a specific devise or legacy, the title passes by the
will, but possession can only be obtained from the personal
representative; and he may be authorized by the district
court to sell the property devised or bequeathed, in the
cases herein provided.
§ 8. Claim under heir against devisee--Probate
proceedings
The rights of a purchaser or encumbrancer of real
property in good faith, and for value, derived from any
person claiming the same by succession, are not impaired
by any devise made by the decedent from whom succession
is claimed, unless the instrument containing such devise
has been duly admitted to probate by a court of this state
having jurisdiction to administer upon the estate of the
decedent within two (2) years after the death of the
decedent, or unless within one (1) year after the death of
the decedent a petition to admit said will to probate has
been duly filed in the court of this state having jurisdiction
to admit said will to probate and the proceedings have been
pursued by the petitioner with diligence.
§ 9. Succession to limited legacies--Inventory of
property
Where specific legacies are for life only, the first
legatees must sign and deliver to the second legatee, or, if
there is none, to the personal representative, an inventory
of the property, expressing that the same is in his custody
for life only, and that, on his decease, it is to be delivered
and to remain to the use and for the benefit of the second
Title 84 47
legatee, or to the personal representative as the case may
be.
§ 10. Bequest of interest or income begins at death
In case of a bequest of the interest or income of a
certain sum or fund, the income accrues from the testator's
death.
§ 11. Satisfaction of legacy before death
A legacy, or a gift in contemplation, fear or peril of
death, may be satisfied before death.
§ 12. Legacies due, when--Annuities
Legacies are due and deliverable at the expiration of
one (1) year after the testator's decease. Annuities
commence at the testator's decease.
§ 13. Interest on legacies
Legacies bear interest from the time when they are due
and payable, except that legacies for maintenance, or to the
testator's widow, bear interest from the testator's decease.
§ 14. Intention of testator controls
The four preceding sections are in all cases to be
controlled by a testator's express intention.
§ 15. Testator's intention as to executor
Where it appears by the terms of a will that it was the
intention of the testator to commit the execution thereof
and the administration of his estate to any person as
executor, such person although not named executor, is
entitled to letters testamentary in like manner as if he had
been named executor.
§ 16. Executor may not appoint executor
An authority to an executor to appoint an executor, is
void.
§ 17. Executor's power begins, when--Payment of
funeral charges, etc.
No person has any power, as an executor, until he
qualifies, except that, before letters have been issued, he
may pay funeral charges and take necessary measures for
the preservation of the estate.
§ 18. Power of executor of executor
No executor of an executor, as such, has any power
over the estate of the first testator.
§ 19. Will includes codicils
The term "will," as used in this chapter, includes all
codicils as well as wills.
§ 20. Law governing validity and interpretation of wills
Except as otherwise provided, the validity and
interpretation of wills is governed, when relating to real
property within this state, by the law of this state; when
relating to personal property, by the law of the testator's
domicile.
§ 21. Liability of beneficiaries
Those to whom property is given by will are liable for
the obligations of the testator in the cases and to the extent
prescribed by the chapter on civil procedure, or the statutes
in such case made and provided.
§ 22. Disclaimer of interests passing by will, intestate
succession, etc.--Definitions
As used in this act, unless otherwise clearly required by
the context:
1. "Beneficiary" means and includes any person
entitled, but for his disclaimer, to take an interest, by
intestate succession; by devise; by legacy or bequest;
by succession to a disclaimed interest by will, intestate
succession or through the exercise or nonexercise of a
testamentary power of appointment; by virtue of a
renunciation and election to take against a will; as
beneficiary of a testamentary trust; pursuant to the
exercise or nonexercise of a testamentary power of
appointment; as donee of a power of appointment
created by testamentary instrument; or otherwise under
a testamentary instrument;
2. "Interest" means and includes the whole of any
property, real or personal, legal or equitable, or any
fractional part, share or particular portion or specific
assets thereof or any estate in any such property or
power to appoint, consume, apply or expend property
or any other right, power, privilege or immunity
relating thereto; and
3. "Disclaimer" means a written instrument which
declines, refuses, releases, renounces or disclaims an
interest which would otherwise be succeeded to by a
beneficiary, which instrument defines the nature and
extent of the interest disclaimed thereby and which
must be signed, witnessed and acknowledged by the
disclaimant in the manner provided for deeds of real
estate.
§ 23. Right to file disclaimer--Minor, incompetent or
deceased beneficiaries
A beneficiary may disclaim any interest in whole or in
part, or with reference to specific parts, shares or assets
thereof, by filing a disclaimer in the manner hereinafter
provided. A guardian, executor, administrator or other
personal representative of the estate of a minor,
incompetent or deceased beneficiary, if he deems it in the
best interests of those interested in the estate of such
beneficiary and of those who take the beneficiary's interest
by virtue of the disclaimer and not detrimental to the best
interests of the beneficiary, with or without an order of the
probate court, may execute and file a disclaimer on behalf
of the beneficiary within the time and in the manner in
Title 84 48
which the beneficiary himself could disclaim if he were
living, of legal age and competent. A beneficiary likewise
may execute and file a disclaimer by agent or attorney so
empowered.
§ 24. Time for filing disclaimer
Such disclaimer shall be filed at any time after the
creation of the interest, but in all events within nine (9)
months after the death of the person by whom the interest
was created or from whom it would have been received, or,
if the disclaimant is not finally ascertained as a beneficiary
or his interest has not become indefeasibly fixed both in
quality and quantity as of the death of such person, then
such disclaimer shall be filed not later than nine (9) months
after the event which would cause him so to become finally
ascertained and his interest to become indefeasibly fixed
both in quality and quantity.
§ 25. Place of filing disclaimer--Delivery of
copies--Interest in real estate
Such disclaimer shall be effective upon being filed in
the district court in which the estate of the person by whom
the interest was created or from whom it would have been
received is, or has been, administered or, if no probate
administration has been commenced, then in the district
court of any county provided in Oklahoma Statutes as the
place for probate administration of the estate of such
person. A copy of the disclaimer shall be delivered or
mailed to the representative, trustee or other person having
legal title to, or possession of, the property in which the
interest disclaimed exists, and no such representative,
trustee or person shall be liable for any otherwise proper
distribution or other disposition made without actual notice
of the disclaimer. If an interest in or relating to real estate is
disclaimed the original of the disclaimer, or a copy of the
disclaimer certified as true and complete by the clerk of the
district court wherein the same has been filed, shall be filed
in the office of the county clerk in the county or counties
where the real estate is situated and shall constitute notice
to all persons only from and after the time of such filing.
§ 26. Disposition of interest disclaimed
Unless the person by whom the interest was created or
from whom it would have been received has otherwise
provided by will or other appropriate instrument with
reference to the possibility of a disclaimer by the
beneficiary, the interest disclaimed shall descend, be
distributed or otherwise be disposed of in the same manner
as if the disclaimant had died immediately preceding the
death or other event which causes him to become finally
ascertained as a beneficiary and his interest to become
indefeasibly fixed both in quality and quantity, and, in any
case, the disclaimer shall relate for all purposes to such
date, whether filed before or after such death or other
event. However, one disclaiming an interest in a
nonresiduary gift, devise or bequest shall not be excluded,
unless his disclaimer so provides, from sharing in a gift,
devise or bequest of the residue even though, through
lapse, such residue includes the assets disclaimed. An
interest of any nature in or to the estate of an intestate may
be declined, refused or disclaimed as herein provided
without ever vesting in the disclaimant.
§ 27. Uniform Fraudulent Conveyance Act not
abrogated--Bar on right to disclaim in certain cases
Nothing included in this act shall be deemed to amend,
repeal or abrogate in any manner Title 24 O.S.1971, §§ 101
through 111, inclusive. Any voluntary assignment or
transfer of, or contract to assign or transfer, an interest in
real or personal property, or written waiver of the right to
disclaim the succession to an interest in real or personal
property, by any beneficiary, or any sale or other
disposition of an interest in real or personal property
pursuant to judicial process, made before he has filed a
disclaimer, as herein provided, bars the right otherwise
hereby conferred on such beneficiary to disclaim as to such
interest.
§ 28. Spendthrift provisions--Binding effect of
disclaimer--Spouse of disclaimant
The right to disclaim granted by this act shall exist
irrespective of any limitation imposed on the interest of the
disclaimant in the nature of an express or implied
spendthrift provision or similar restriction. A disclaimer,
when filed as provided in this act, or a written waiver of the
right to disclaim, shall be binding upon the disclaimant or
beneficiary so waiving and all parties thereafter claiming
by, through or under him, except that a beneficiary so
waiving may thereafter transfer, assign or release his
interest if such is not prohibited by an express or implied
spendthrift provision. If an interest in real estate is
disclaimed and the disclaimer is duly filed in accordance
with the provisions of Section 4 of this act, the spouse of
the disclaimant, if such spouse has consented to the
disclaimer in writing, shall thereupon be automatically
debarred from any claim, right or interest in such real estate
to which such spouse, except for such disclaimer, would
have been entitled.
§ 29. Other rights not abridged
This act shall not abridge the right of any person, apart
from this act, under any existing or future statute or rule of
law, to disclaim any interest or to assign, convey, release,
renounce or otherwise dispose of any interest.
§ 30. Interests not fixed or finally ascertained--Right to
disclaim
Any interest which exists on the effective date of this
act but which has not then become indefeasibly fixed both
in quality and quantity, or the taker of which has not then
become finally ascertained, may be thereafter disclaimed in
the manner provided herein.
§ 31. Disclaimer of interest in trust--Conditions
Title 84 49
An interest in trust may be disclaimed by written
instrument signed by the trustee and income beneficiary of
the trust, without judicial approval and without liability of
the trustee to persons having interest becoming effective
after the death of the income beneficiary, but only if the
interest disclaimed passes to the descendants of grantor.
This provision shall not abridge or limit the right presently
existing of a trustee or beneficiary to disclaim interest in
trust.
Chapter 2. Execution and Revocation of Wills
§ 41. Persons who may make a will--Persons subject to
guardianship or conservatorship
A. Every person over the age of eighteen (18) years, of
sound mind may, by last will, dispose of all his estate, real
and personal, and such estate not disposed of by will is
succeeded to as provided in this title, being chargeable in
both cases with the payment of all the decedent's debts, as
provided in Title 12 of the Oklahoma Statutes.
B. The appointment of a guardian or a conservator does
not prohibit a person from disposing of his estate, real and
personal, by will; provided, that when any person subject to
a guardianship or conservatorship shall dispose of such
estate by will, such will must be subscribed and
acknowledged in the presence of a judge of the district
court. The judge before whom the will is subscribed and
acknowledged shall attest to the execution of the will but
shall have neither the duty nor the authority to approve or
disapprove the contents of the will. Subscribing and
acknowledging such will before a judge shall not render
such will valid if it would otherwise be invalid.
§ 42. Right of married woman
A married woman may dispose of all her separate estate
by will, without the consent of her husband, and may alter
or revoke the will in like manner as if she were single. Her
will must be executed and proved in like manner as other
wills.
§ 43. Duress, menace, fraud, or undue influence--
Revocation
A will or part of a will procured to be made by duress,
menace, fraud or undue influence, may be denied probate;
and a revocation procured by the same means, may be
declared void.
§ 44. Property which may be disposed of--Election by
surviving spouse--Homestead
. . . .
B. This subsection shall apply to the estate of a
decedent who dies on or after July 1, 1985.
1. Every estate in property may be disposed of by will
except that a will shall be subservient to any antenuptial
marriage contract in writing. In addition, no spouse shall
bequeath or devise away from the other so much of the
estate of the testator that the other spouse would receive
less in value than an undivided one-half ( 1/2 ) interest in
the property acquired by the joint industry of the husband
and wife during coverture. No person shall by will dispose
of property which could not be by the testator alienated,
encumbered or conveyed while living, except that the
homestead may be devised by one spouse to the other.
2. The spouse of a decedent has a right of election to take
the one-half ( 1/2 ) interest in the property as provided in
paragraph 1 of this subsection in lieu of all devises,
legacies and bequests for the benefit of the spouse
contained in the last will and testament of the decedent.
3. If the surviving spouse desires to make the election
provided in paragraph 2 of this subsection to take the
property specified therein in lieu of all devises, legacies
and bequests for the benefit of the surviving spouse
contained in the last will and testament of a decedent, then
the surviving spouse shall make such election affirmatively
in writing, which writing shall be filed in the district court
in which the estate of the decedent is being administered on
or before the final date for hearing of the petition for final
distribution of the estate. The court clerk shall immediately
mail a copy of such election to the personal representative
of the estate and to all attorneys of record of the estate.
Such written election of the surviving spouse shall be in the
form of a writing separate from all other pleadings and
documents filed in the district court in which the estate is
being administered. Failure of the surviving spouse to
substantially comply with the provisions of this subsection
shall render the attempted election by the surviving spouse
void and of no force or effect; provided that such failure
shall not prohibit the surviving spouse from making a
subsequent election within the allotted time period, which
substantially complies with this subsection.
4. The right of election of the surviving spouse provided
for in paragraph 2 of this subsection is personal to the
surviving spouse and may be exercised only during the
lifetime of the surviving spouse. However, if there has been
a guardian or conservator duly appointed by a court of
competent jurisdiction, and such court has judicially
determined the surviving spouse to be incompetent, then
such guardian or conservator may make the election on
behalf of the surviving spouse, but only if the same is
approved by the court having jurisdiction over such
guardian or conservator. Further, a certified copy of the
document or documents evidencing the appointment of
such guardian or conservator for the surviving spouse, and
a certified copy of the order of the applicable court
approving such guardian's or conservator's making such
election on behalf of the surviving spouse, shall be attached
to the election on behalf of the surviving spouse, shall be
attached to the election, which shall also be in substantial
compliance with the provisions of paragraph 3 of this
Title 84 50
subsection, or such election shall be void and of no force or
effect. The guardian or conservator may be appointed in
any state, and may have been appointed at any time prior to
the expiration of the time permitted for the election to be
made as provided in paragraph 3 of this subsection.
§ 45. Persons who may take under will--Exception as to
corporation
A testamentary disposition may be made to any person
capable by law of taking the property so disposed of,
except that no corporation can take under a will, unless
expressly authorized by its charter or by statute so to take.
§ 46. Nuncupative wills--Requisites
To make a nuncupative will valid, and to entitle it to be
admitted to probate, the following requisites must be
observed:
1. The estate bequeathed must not exceed in value the
sum of One Thousand Dollars ($1,000.00).
2. It must be proved by two witnesses who were present
at the making thereof, one of whom was asked by the
testator at the time to bear witness that such was his
will, or to that effect.
3. The decedent must at the time, have been in actual
military service in the field, or doing duty on shipboard
at sea, and in either case in actual contemplation, fear
or peril of death, or the decedent must have been at the
time in expectation of immediate death from an injury
received the same day.
§ 51. Nuncupative will need not be in writing
A nuncupative will is not required to be in writing, nor
to be declared or attested with any formalities.
§ 52. Mutual will--Revocation
A conjoint or mutual will is valid, but it may be
revoked by any of the testators in like manner with any
other will.
§ 53. Probate of conditional will
A will, the validity of which is made by its own terms
conditional, may be denied probate, according to the event,
with reference to the condition.
§ 54. Holographic wills--Requisites
A holographic will is one that is entirely written, dated
and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of this state,
and need not be witnessed.
§ 55. Formal requisites in execution--Self-proved wills
Every will, other than a nuncupative will, must be in
writing; and every will, other than a holographic will and a
nuncupative will, must be executed and attested as follows:
1. It must be subscribed at the end thereof by the
testator himself, or some person, in his presence and by
his direction, must subscribe his name thereto.
2. The subscription must be made in the presence of the
attesting witnesses, or be acknowledged by the testator
to them, to have been made by him or by his authority.
3. The testator must, at the time of subscribing or
acknowledging the same, declare to the attesting
witnesses that the instrument is his will.
4. There must be two attesting witnesses, each of whom
must sign his name as a witness at the end of the will at
the testator's request and in his presence.
5. Every will, other than a holographic and a
nuncupative will, and every codicil to such will or to a
holographic will may, at the time of execution or at any
subsequent date during the lifetimes of the testator and
the witnesses, be made self-proved, and the testimony
of the witnesses in the probate thereof may be made
unnecessary by:
a. the acknowledgment thereof by the testator and
the affidavits of the attesting witnesses, each made
before an officer authorized to take
acknowledgments to deeds of conveyance and to
administer oaths under the laws of this state, such
acknowledgments and affidavits being evidenced
by the certificate, with official seal affixed, of such
officer attached or annexed to such testamentary
instrument in form and contents substantially as
follows:
THE STATE OF OKLAHOMA
COUNTY OF ___________
Before me, the undersigned authority, on this day
personally appeared __________, __________, and
__________, known to me to be the testator and the
witnesses, respectively, whose names are subscribed to the
annexed or foregoing instrument in their respective
capacities, and, all of said persons being by me first duly
sworn, said _________, testator, declared to me and to the
said witnesses in my presence that said instrument is his
last will and testament or a codicil to his last will and
testament, and that he had willingly made and executed it
as his free and voluntary act and deed for the purposes
therein expressed; and the said witnesses, each on his oath
stated to me, in the presence and hearing of the said
testator, that the said testator had declared to them that said
instrument is his last will and testament or codicil to his
last will and testament, and that he executed same as such
and wanted each of them to sign it as a witness; and upon
their oaths each witness stated further that they did sign the
same as witnesses in the presence of the said testator and at
his request and that said testator was at that time eighteen
Title 84 51
(18) years of age or over and was of sound mind.
___________________
Testator
___________________
Witness (signature)
____________________________
Name and Residence (printed)
___________________
Witness (signature)
____________________________
Name and Residence (printed)
Subscribed and acknowledged before me by the said
__________, testator, and subscribed and sworn before me
by the said __________, and __________ witnesses, this
_____ day of ________, A.D., _______.
(SEAL) (SIGNED)
________________________
________________________
(OFFICIAL CAPACITY
OF OFFICER); or
b. the written declaration of the testator and the
written declarations of the attesting witnesses made
in substantially the following form:
We the undersigned are the testator and the witnesses,
respectively, whose names are subscribed to the annexed or
foregoing instrument in their respective capacities, and we
do hereby declare that said __________, testator, declared
to said witnesses that said instrument is his last will and
testament or a codicil to his last will and testament, and that
he willingly made and executed it as his free and voluntary
act and deed for the purposes therein expressed; and said
witnesses further declare that the said testator declared to
them that said instrument is his last will and testament or
codicil to his last will and testament, and that he executed
same as such and wanted each of us to sign it as a witness;
and that we did sign the same as witnesses in the presence
of the said testator and at his request and that said testator
was at that time eighteen (18) years of age or over and was
of sound mind, all of which we declare and sign under
penalty of perjury this ________ day of ________.
___________________
Testator
___________________
Witness (signature)
____________________________
Name and Residence (printed)
___________________
Witness (signature)
____________________________
Name and Residence (printed)
6. Any person falsely executing a written declaration as
a witness or misrepresenting his or her identity with the
intent to defraud another person pursuant to
subparagraph b of paragraph 5 of this subsection shall,
upon conviction, be deemed guilty of the felony of
perjury and shall be subject to the penalties prescribed
by law.
7. A self-proved testamentary instrument shall be
admitted to probate without the testimony of any
subscribing witness, unless contested, but otherwise it
shall be treated no differently than a will or codicil not
self-proved. Furthermore, a self-proved testamentary
instrument may be revoked or amended by a codicil in
exactly the same fashion as a will or codicil not
self-proved and such a testamentary instrument may be
contested as a will not self-proved.
§ 56. Method of witnessing a will
A witness to a written will must write, with his name,
his place of residence; and a person who subscribes the
testator's name, by his direction, must write his own name
as a witness to the will. But a violation of this section does
not affect the validity of the will.
§ 57. Codicil, effect of
The execution of a codicil referring to a previous will
has the effect to republish the will as modified by the
codicil.
§ 71. Law of place governs execution or revocation
A will, or a revocation thereof, made out of this state
by a person not having his domicile in this state; is as valid
when executed according to the law of the place in which
the same was made, or in which the testator was at the time
domiciled, as if it were made in this state, and according to
the provisions of this article.
§ 72. Law must be followed in execution or revocation
No will or revocation is valid unless executed either
according to the provisions of this article, or according to
the law of the place in which it was made, or in which the
testator was at the time domiciled.
§ 73. Change of domicile does not affect will
Title 84 52
No will or revocation is valid unless executed either
according to the provisions of this article, or according to
the law of the place in which it was made, or in which the
testator was at the time domiciled.
§ 81. Wills deposited with judge of district court
Every judge of the district court must deposit in his
office any will delivered to him for that purpose, and give a
written receipt to the depositor; and must enclose such will
in a sealed wrapper, so that it cannot be read, and endorse
thereon the name of the testator, his residence, and the date
of the deposit; and such wrapper must not be opened until
its delivery under the provisions of the next section.
§ 82. Delivery of deposited will
A will deposited under the provisions of the last section
must be delivered only:
1. To the testator in person.
2. Upon his written order, duly proved by the oath of a
subscribing witness.
3. After his death, to the person, if any, named in the
endorsement on the wrapper of the will; or,
4. If there is no such endorsement, and if the will was
not deposited with the judge of the district court having
jurisdiction of its probate, then to the judge of the
district court who has jurisdiction.
§ 83. Duty of judge having will on deposit after
testator's death
The judge of the district court with whom a will is
deposited, or to whom it is delivered, must, after the death
of the testator, publicly open and examine the will and file
in his office, there to remain until duly proved, or to deliver
it to the judge of the district court having jurisdiction of its
probate.
§ 91. Proof of lost or destroyed will
A lost or destroyed will of real or personal property, or
both, may be established in the cases provided by law.
§ 101. Revocation of wills
Except in the cases in this article mentioned no written
will, nor any part thereof, can be revoked or altered
otherwise than:
1. By a written will or other writing of the testator,
declaring such revocation or alteration, and executed
with the same formalities with which a will should be
executed by such testator; or,
2. By being burnt, torn, canceled, obliterated or
destroyed, with intent and for the purpose of revoking
the same, by the testator himself, or by some person in
his presence and by his direction.
§ 102. Proof of destruction
When a will is canceled or destroyed by any other
person than the testator, the direction of the testator, and
the fact of such injury or destruction, must be proved by
two witnesses.
§ 103. Effect of alteration or partial erasure
A revocation by obliteration on the face of the will may
be partial or total, and is complete if the material part is so
obliterated as to show an intention to revoke; but where, in
order to effect a new disposition the testator attempts to
revoke a provision of the will by altering or obliterating it
on the face thereof, such revocation is not valid unless the
new disposition is legally effected.
§ 104. Revocation of duplicate will
The revocation of a will, executed in duplicate may be
made by revoking one of the duplicates.
§ 105. Revocation by subsequent will
A prior will is not revoked by a subsequent will, unless
the latter contains an express revocation, or provisions
wholly inconsistent with the terms of the former will; but in
other cases the prior will remains effectual so far as
consistent with the provisions of the subsequent will.
§ 106. Revocation of subsequent will
If, after making a will, the testator duly makes and
executes a subsequent will, the destruction, canceling or
revocation of the latter does not revive the former, unless it
appears by the terms of such revocation that it was his
intention to renew the former will, or unless after such
destruction, canceling or revocation, he republishes the
prior will.
§ 109. Effect of sale of devised property
An agreement made by a testator, for the sale or
transfer of property disposed of by will previously made,
does not revoke such disposal; but the property passes by
the will, subject to the same remedies on the testator's
agreement, for a specific performance or otherwise, against
the devisees or legatees, as might be had against the
testator's successors, if the same had passed by succession.
§ 110. Incumbrance not a revocation
A charge or encumbrance upon any estate, for the
purpose of securing the payment of money or the
performance of any covenant or agreement, is not a
revocation of any will relating to the same estate which was
previously executed, but the devise and legacies therein
contained must pass subject to such charge or
encumbrance.
§ 111. Partial disposal not a revocation
A conveyance, settlement, or other act of a testator, by
which his interest in a thing previously disposed of by his
will is altered, but not wholly divested, is not a revocation;
Title 84 53
but the will passes the property which would otherwise
devolve by succession.
§ 112. When intent to revoke expressed
If the instrument by which an alteration is made in the
testator's interest in a thing previously disposed of by his
will, expresses his intent that it shall be a revocation, or if it
contains provisions wholly inconsistent with the terms and
nature of the testamentary disposition, it operates as a
revocation thereof, unless such inconsistent provisions
depend on a condition or contingency, by reason of which
they do not take effect.
§ 113. Codicils revoked with will
The revocation of a will revokes all its codicils.
§ 114. Divorce or annulment as revoking will
A. If, after making a will, the testator is divorced, all
provisions in such will in favor of the testator's spouse so
divorced are thereby revoked. Annulment of the testator's
marriage shall have the same effect as a divorce. In the
event of either divorce or annulment, the testator's former
spouse shall be treated for all purposes under the will as
having predeceased the testator. Provided, however, this
section shall not apply if the decree of divorce or of
annulment is vacated or if the testator remarries his former
spouse, or following said divorce or annulment, executes a
new will or codicil which is not revoked or held invalid.
B. This section shall apply to any will of a decedent
dying on or after November 1, 1987.
§ 131. After-born children not provided for in will
Whenever a testator has a child born after the making
of his will, either in his lifetime or after his death, and dies
leaving such child unprovided for by any settlement, and
neither provided for nor in any way mentioned in his will,
the child succeeds to the same portion of the testator's real
and personal property that he would have succeeded to if
the testator had died intestate.
§ 132. Provision for children unintentionally omitted
When any testator omits to provide in his will for any
of his children, or for the issue of any deceased child unless
it appears that such omission was intentional, such child, or
the issue of such child, must have the same share in the
estate of the testator, as if he had died intestate, and
succeeds thereto as provided in the preceding section.
§ 133. How provision made as to child born after or
omitted from will
When any share of the estate of a testator is assigned to
a child born after the making of a will, or to a child, or the
issue of a child, omitted in a will as hereinbefore
mentioned, the same must first be taken from the estate not
disposed of by the will, if any; if that is not sufficient, so
much as may be necessary must be taken from all the
devisees, or legatees, in proportion to the value they may
respectively receive under the will, unless the obvious
intention of the testator in relation to some specific devise
or bequest or other provision in the will, would thereby be
defeated; in such case such specific devise, legacy or
provision may be exempted from such apportionment, and
a different apportionment, consistent with the intention of
the testator, may be adopted.
§ 134. Advancements cover rights
If such children, or their descendants, so unprovided
for, had an equal proportion of the testator's estate
bestowed on them in the testator's lifetime, by way of
advancement, they take nothing in virtue of the provisions
of the three preceding sections.
§ 141. Devise of land gives all testator's estate
Every devise of land in any will conveys all the estate
of the devisor therein, which he could lawfully devise,
unless it clearly appears by the will that he intended to
convey a less estate.
§ 142. Death of devisee or legatee before testator--
Rights of descendants
When any estate is devised or bequeathed to any child
or other relation of the testator, and the devisee or legatee
dies before the testator, leaving lineal descendants, such
descendants take the estate so given by the will, in the same
manner as the devisee or legatee would have done had he
survived the testator.
§ 143. Gift to witness void--Exception
All beneficial devises, legacies or gifts whatever, made
or given in any will to a subscribing witness thereto, are
void unless there are two other competent subscribing
witnesses to the same; but a mere charge on the estate of
the testator for the payment of debts does not prevent his
creditors from being competent witnesses to the will.
§ 144. Witness entitled without will
If a witness to whom any beneficial devise, legacy or
gift, void by the preceding section, is made, would have
been entitled to any share of the estate of the testator, in
case the will should not be established, he succeeds to so
much of the share as would be distributed to him, not
exceeding the devise or bequest made to him in the will,
and he may recover the same of the other devisees or
legatees named in the will, in proportion to and out of the
parts devised or bequeathed to them.
§ 145. Subsequent incompetency of witnesses immaterial
If the subscribing witnesses to a will are competent at
the time of attesting its execution, their subsequent
incompetency, from whatever cause it may arise, does not
prevent the probate and allowance of the will, if it is
otherwise satisfactorily proved.
Title 84 54
§ 146. Property acquired after will
Any estate, right or interest in lands acquired by the
testator after the making of his will, passes thereby and in
like manner as if title thereto was vested in him at the time
of making the will, unless the contrary manifestly appears
by the will to have been the intention of the testator. Every
will made in express terms, devising, or in any other terms
denoting the intent of the testator to devise all the real
estate of such testator, passes all the real estate which such
testator was entitled to devise at the time of his decease.
Chapter 3. Interpretation of Wills
§ 151. Intention of testator governs
A will is to be construed according to the intention of
the testator. Where his intention cannot have effect to its
full extent, it must have effect as far as possible.
§ 152. Ascertaining intention
In case of uncertainty, arising upon the face of a will, as to
the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will,
taking into view the circumstances under which it was
made, exclusive of his oral declarations.
§ 153. Rules of this article govern interpretation
In interpreting a will, subject to the laws of this state,
the rules prescribed by the following sections of this article
are to be observed, unless an intention to the contrary
clearly appears.
§ 154. Several instruments construed as one
Several testamentary instruments, executed by the same
testator, are to be taken and construed together as one
instrument.
§ 155. Irreconcilable parts
All the parts of a will are to be construed in relation to
each other, and so as to form one consistent whole, if
possible but where several parts are absolutely
irreconcilable, the latter as to position must prevail.
§ 156. Plain devise not affected by other parts of will
A clear and distinct devise or bequest cannot be
affected by any reasons assigned therefor, or by any other
words not equally clear and distinct, or by inference or
argument from other parts of the will, or by an inaccurate
recital of or reference to its contents in another part of the
will.
§ 157. Ambiguities
Where the meaning of any part of a will is ambiguous
or doubtful it may be explained by any reference thereto, or
recital thereof, in another part of the will.
§ 158. Words taken in ordinary sense
The words of a will are to be taken in their ordinary
and grammatical sense unless a clear intention to use them
in another sense can be collected, and that other can be
ascertained.
§ 159. Words to be given effect if possible
The words of a will are to receive an interpretation
which will give to every expression some effect rather than
one which shall render any of the expressions inoperative.
§ 160. Interpretation against total intestacy
Of two modes of interpreting a will, that is to be
preferred which will prevent a total intestacy.
§ 161. Technical words
Technical words in a will are to be taken in their
technical sense unless the context clearly indicates a
contrary intention.
§ 162. Technical expression not required
Technical words are not necessary to give effect to any
species of disposition by a will.
§ 163. Words of inheritance not necessary
The term "heirs," or other words of inheritance, are not
requisite to devise a fee, and a devise of real property
passes all the estate of the testator, unless otherwise
limited.
§ 164. Execution of power to devise
Real or personal property embraced in a power to
devise passes by a will purporting to devise all the real or
personal property of the testator.
§ 165. General disposition includes what
A devise or bequest of all the testator's real or personal
property, in express terms, or in any other terms denoting
his intent to dispose of all his real or personal property,
passes all the real or personal property which he was
entitled to dispose of by will at the time of his death.
§ 166. Devise of residue of real estate
A devise of the residue of the testator's real property
passes all the real property which he was entitled to devise
at the time of his death, not otherwise effectually devised
by his will.
§ 167. Devise of residue of personalty
A bequest of the residue of the testator's personal
property passes all the personal property which he was
entitled to bequeath at the time of his death not otherwise
effectually bequeathed by his will
§ 168. Effect of certain terms as "heirs," "relations,"
etc.
A testamentary disposition to "heirs," "relations,"
"nearest relations," "representatives," "legal
representatives," or "personal representatives," or "family,"
Title 84 55
"issue," "descendants," "nearest," or "next of kin," of any
person, without other words of qualification, and when the
terms are used as words of donation, and not of limitation,
vests the property in those who would be entitled to
succeed to the property of such person according to the
provisions of the article on succession in this chapter.
§ 169. When terms "heirs," "relations," etc. construed
as words of donation
The terms mentioned in the last section are used as
words of donation, and not limitation, when the property is
given to the person so designated, directly, and not as a
qualification of an estate given to the ancestor of such
person.
§ 170. Words referring to survivorship
Words in a will referring to death or survivorship,
simply, relate to the time of the testator's death, unless
possession is actually postponed, when they must be
referred to the time of possession.
§ 171. Disposition to class includes all
A testamentary disposition to a class includes every
person answering the description at the testator's death; but
when the possession is postponed to a future period, it
includes also all the persons coming within the description
before the time to which the possession is postponed.
§ 172. Conversion of realty into money
When a will directs the conversion of real property into
money, such property and all its proceeds must be deemed
personal property, from the time of the testator's death.
§ 173. Unborn child included in class, when
A child conceived before, but not born until after a
testator's death, or any other period when a disposition to a
class vests in right or in possession, takes, if answering to
the description of the class.
§ 174. Errors corrected, how
If, when applying a will, it is found that there is an
imperfect description, or that no person or property exactly
answers the description, mistakes and omissions must be
corrected, if the error appears from the context of the will
or from extrinsic evidence; but evidence of the declarations
of the testator as to his intention cannot be received.
§ 175. Rights presumed to vest on testator's death
Testamentary dispositions, including devises and
bequests to a person on attaining majority, are presumed to
vest at the testator's death.
§ 176. Rights divested, when
A testamentary disposition, when vested, cannot be
divested unless upon the occurrence of the precise
contingency prescribed by the testator for that purpose.
§ 177. Death of devisee or legatee causes failure
If a devisee or legatee dies during the lifetime of the
testator, the testamentary disposition to him fails, unless an
intention appears to substitute some other in his place,
except as provided in Section 8922.
§ 178. Remaindermen not affected by death of devisee or
legatee
The death of a devisee or legatee of a limited interest,
before the testator's death, does not defeat the interests of
persons in remainder, who survive the testator.
§ 179. Conditional disposition defined
A conditional disposition is one which depends upon
the occurrence of some uncertain event, by which it is
either to take effect or be defeated.
§ 180. Condition precedent defined
A condition precedent in a will is one which is required
to be fulfilled before a particular disposition takes effect.
§ 181. Condition precedent must be fulfilled--Exception
Where a testamentary disposition is made upon a
condition precedent, nothing vests until the condition is
fulfilled except where such fulfillment is impossible, in
which case the disposition vests, unless the condition was
the sole motive thereof, and the impossibility was unknown
to the testator, or arose from an unavoidable event
subsequent to the execution of the will.
§ 182. Substantial compliance as performance of
condition precedent
A condition precedent in a will is to be deemed
performed when the testator's intention has been
substantially, though not literally complied with.
§ 183. Condition subsequent defined
A condition subsequent is where an estate or interest is
so given as to vest immediately, subject only to be divested
by some subsequent act or event.
§ 184. Owners in common created, when
A devise or legacy given to more than one person vests
in them as owners in common.
§ 185. Gifts do not reduce legacies
Advancements or gifts are not to be taken as
ademptions of general legacies, unless such intention is
expressed by the testator in writing.
§ 186. Unlimited marital deduction--Interpretation of
will
Any will of a decedent dying after December 31, 1981,
which contains a marital deduction formula expressly
providing that the spouse of the testator is to receive the
maximum amount of property qualifying for the marital
deduction allowable by federal law shall be construed as
Title 84 56
referring to the unlimited marital deduction provided by the
Economic Recovery Tax Act of 1981, Public Law 97-34.
This provision shall apply retrospectively to wills of
decedents dying after December 31, 1981.
Chapter 4. Succession
§ 211. Succession defined
Succession is the coming in of another to take the
property of one who dies without disposing of it by will.
§ 212. Property of intestate passes to heirs subject to
control of court and possession of administrator
The property, both real and personal, of one who dies
without disposing of it by will, passes to the heirs of the
intestate, subject to the control of the district court, and to
the possession of any administrator appointed by that court
for the purpose of administration.
§ 213. Descent and distribution
. . . .
B. Beginning July 1, 1985, if any person having title to
any estate not otherwise limited by any antenuptial
marriage contract dies without disposing of the estate by
will, such estate descends and shall be distributed in the
following manner:
1. If the decedent leaves a surviving spouse, the share
of the estate passing to said spouse is:
a. if there is no surviving issue, parent, brother or
sister, the entire estate, or
b. if there is no surviving issue but the decedent is
survived by a parent or parents, brother or sister:
(1) all the property acquired by the joint industry of
the husband and wife during coverture, and
(2) an undivided one-third ( 1/3 ) interest in the
remaining estate, or
c. if there are surviving issue, all of whom are also
issue of the surviving spouse:
an undivided one-half ( 1/2 ) interest in all the
property of the estate whether acquired by the joint
industry of the husband and wife during coverture
or otherwise, or
d. if there are surviving issue, one or more of whom
are not also issue of the surviving spouse:
(1) an undivided one-half ( 1/2 ) interest in the
property acquired by the joint industry of the
husband and wife during coverture, and
(2) an undivided equal part in the property of the
decedent not acquired by the joint industry of the
husband and wife during coverture with each of the
living children of the decedent and the lawful issue
of any deceased child by right of representation;
2. The share of the estate not passing to the surviving
spouse or if there is no surviving spouse, the estate is to
be distributed as follows:
a. in undivided equal shares to the surviving
children of the decedent and issue of any deceased
child of the decedent by right of representation, or
b. if there is no surviving issue, to the surviving
parent or parents of the decedent in undivided
equal shares, or
c. if there is no surviving issue nor parent, in
undivided equal shares to the issue of parents by
right of representation, or
d. if there is no surviving issue, parent, nor issue of
parents, but the decedent is survived by one or
more grandparents or issue of any grandparent, half
of the estate passes equally to the paternal
grandparents if both survive, or to the surviving
paternal grandparent, or to the issue of any paternal
grandparent if both paternal grandparents are
deceased, the issue taking equally if they are all of
the same degree of kinship to the decedent, but if of
unequal degree those of more remote degree take
by representation and the other half passes to the
maternal relatives in the same manner; but if the
decedent is survived by one or more grandparents
or issue of grandparents on only one side of the
family, paternal or maternal, the entire estate shall
pass to such survivors in the manner set forth in
this subsection, or
e. if there is no surviving issue, parent, issue of
parents, grandparent, nor issue of a grandparent,
the estate passes to the next of kin in equal degree;
3. If the decedent leaves no spouse, issue, parent, issue
of parents, grandparent, issue of a grandparent, nor
kindred, then the estate shall escheat to the state for the
support of the common schools; and
4. For the purpose of this section, the phrase "by right
of representation" means the estate is to be divided into
as many equal shares as there are surviving heirs in the
nearest degree of kinship and deceased persons in the
same degree who left issue who survive the decedent,
each surviving heir in the nearest degree receiving one
equal share and the equal share of each deceased
person in the same degree being divided among his
issue in the same manner. The word "issue" means
lineal descendants.
§ 214. Dower and curtesy abolished
Dower and curtesy are abolished.
Title 84 57
§ 215. Inheritance by and from illegitimate child
For inheritance purposes, a child born out of wedlock
stands in the same relation to his mother and her kindred,
and she and her kindred to the child, as if that child had
been born in wedlock. For like purposes, every such child
stands in identical relation to his father and his kindred,
and the latter and his kindred to the child, whenever:
(a) the father, in writing, signed in the presence of a
competent witness acknowledges himself to be the
father of the child,
(b) the father and mother intermarried subsequent to
the child's birth, and the father, after such marriage,
acknowledged the child as his own or adopted him into
his family,
(c) the father publicly acknowledged such child as his
own, receiving it as such, with the consent of his wife,
if he is married, into his family and otherwise treating it
as if it were a child born in wedlock, or
(d) the father was judicially determined to be such in a
paternity proceeding before a court of competent
jurisdiction.
For all purposes, the issue of all marriages null in law, or
dissolved by divorce, are deemed to have been born in
wedlock.
§ 216. Inheritance from illegitimate child
If an illegitimate child, who has not been
acknowledged or adopted by his father, dies intestate,
without lawful issue, his estate goes to his mother, or, in
case of her decease, to her heirs at law.
§ 217. Degrees of kindred
The degree of kindred is established by the number of
generations, and each generation is called a degree.
§ 218. Lineal and collateral
The series of degrees from the line; the series of
degrees between persons who descend one from the other is
called direct or lineal consanguinity; and the series of
degrees between persons who do not descend from one
another, but spring from a common ancestor, is called the
collateral line or collateral consanguinity.
§ 219. Ascending and descending lines
The direct line is divided into a direct line descending
and the direct line ascending. The first is that which
connects the ancestor with those who descend from him.
The second is that which connects a person with those from
whom he descends.
§ 220. Degrees in direct line
In the direct line there are as many degrees as there are
generations. Thus the son is, with regard to the father, in
the first degree; the grandson in the second; and vice versa
with regard to the father and grandfather toward the sons
and grandsons.
§ 221. Collateral degrees, how reckoned
In the collateral line the degrees are counted by
generations, from one of the relations up to the common
ancestor, and from the common ancestor to the other
relations. In such computation the decedent is excluded, the
relative included, and the ancestor counted but once. Thus
brothers are related in the second degree, uncle and nephew
in the third degree, cousins german in the fourth degree,
and so on.
§ 222. Kindred of the half-blood
Kindred of the half-blood inherit equally with those of
the whole blood in the same degree, unless the inheritance
come to the intestate by descent, devise or gift of some one
of his ancestors, in which case all those who are not of the
blood of such ancestors must be excluded from such
inheritance.
§ 223. Advancements
Any estate, real or personal, given by the decedent in
his lifetime, as an advancement to any child or other lineal
descendant, is a part of the estate of the decedent for the
purposes of division and distribution thereof among his
issue, and must be taken by such child, or other lineal
descendant, toward his share of the estate of the decedent.
§ 224. Excess not refunded
If the amount of such advancement exceeds the share of
the heir receiving the same, he must be excluded from any
further portion in the division and distribution of the estate,
but he must not be required to refund any part of such
advancement; and if the amount so received is less than his
share, he is entitled to so much more as will give him his
full share of the estate of the decedent.
§ 225. Advancements defined
All gifts and grants are made as advancements, if
expressed in the gift or grant to be so made, or if charged in
writing by the decedent as an advancement, or
acknowledged in writing as such, by the child or other
successor or heir.
§ 226. Expressed value of advancement governs
If the value of the estate so advanced is expressed in
the conveyance, or in the charge thereof made by the
decedent, or in the acknowledgment of the party receiving
it, it must be held as of that value in the division and
distribution of the estate; otherwise it must be estimated
according to its value when given, as nearly as the same
can be ascertained.
§ 227. Representation in advancements
If any child or other lineal descendant receiving
Title 84 58
advancement, dies before the decedent, leaving issue, the
advancement must be taken into consideration in the
division and distribution of the estate, and the amount
thereof must be allowed accordingly by the representatives
of the heirs receiving the advancement, in like manner as if
the advancement had been made directly to them.
§ 228. Representation defined--Posthumous children
Inheritance or succession by right of representation
takes place when the descendants of any deceased heir take
the same share or right in the estate of another person that
their parents would have taken if living. Posthumous
children are considered as living at the death of their
parents.
§ 229. Aliens may take
Aliens may take in all cases, by succession, as well as
citizens; and no person, capable of succeeding under the
provisions of this article, is precluded from such succession
by reason of the alienage of any relative.
§ 230. Liabilities of heirs
Those who succeed to the property of a decedent are
liable for his obligations in the cases and to the extent
prescribed by the Probate Code.
§ 231. Person causing death not to inherit nor benefit by
insurance of decedent
No person who is convicted of murder in the first
degree, murder in the second degree, or manslaughter in the
first degree, as defined by the laws of this state, or the laws
of any other state or foreign country, of having taken,
caused, or procured another to take, the life of an
individual, shall inherit from the victim, or receive any
interest in the estate of the victim, or take by devise or
legacy, or as a designated beneficiary of an account or
security which is a POD or TOD designation, or as a
surviving joint tenant, or by descent or distribution, from
the victim, any portion of the victim's estate; and no
beneficiary of any policy of insurance or certificate of
membership issued by any benevolent association or
organization, payable upon the death or disability of any
person, who in like manner takes, causes, or procures to be
taken, the life upon which such policy or certificate is
issued, or who causes or procures a disability of such
person, shall take the proceeds of such policy or certificate;
but in every instance mentioned in this section all benefits
that would accrue to any such person upon the death or
disability of the person whose life is thus taken, or who is
thus disabled, shall become subject to distribution among
the other heirs of such deceased person according to the
laws of descent and distribution, in the case of death, and in
case of disability, the benefits thereunder shall be paid to
the disabled person; provided, however, that an insurance
company shall be discharged of all liability under a policy
issued by it upon payment of the proceeds in accordance
with the terms thereof, unless before such payment the
company shall have written notice by or in behalf of some
claimant other than the beneficiary named in the policy that
a claim to the proceeds of such policy will be made by heirs
of such deceased under the provisions of this section.
§ 232. Automobiles--Surviving spouse's rights
Whenever any person dies intestate leaving a surviving
spouse, and there is among the assets of decedent's estate
an automobile owned by said deceased, said automobile
shall be and become the sole and exclusive property of said
surviving spouse. If the deceased held title to more than
one automobile at the time of death of said deceased, the
surviving spouse shall have the right to choose one of said
automobiles to be his or her exclusive property and the
remaining automobiles shall be distributed according to the
laws of descent and distribution. Provided that this section
shall in no way release the automobile chosen by the
surviving spouse from liability for the debts of the
deceased.
Chapter 6. Uniform Testamentary Additionsto Trusts Act
§ 301. Devises or bequests by will to trustee of trust
established by written instrument independently of
will--Permissible terms and conditions
A devise or bequest, the validity of which is
determinable by the law of this state, may be made by a will
to the trustee or trustees of a trust established or to be
established by the testator or by the testator and some other
person or persons or by some other person or persons
(including a funded or unfunded life insurance trust,
although the trustor has reserved any or all rights of
ownership of the insurance contracts) if the trust is
identified in the testator's will and its terms are set forth in
a written instrument, other than a will, executed before or
concurrently with the execution of the testator's will or in
the valid last will of a person who has predeceased the
testator, regardless of the existence, size, or character of the
corpus of the trust. The devise or bequest shall not be
invalid because the trust is amendable or revocable, or
both, or because the trust was amended after the execution
of the will or after the death of the testator. Unless the
testator's will provides otherwise, the property so devised
or bequeathed (a) shall not be deemed to be held under a
testamentary trust of the testator but shall become a part of
the trust to which it is given and (b) shall be administered
and disposed of in accordance with the provisions of the
instrument or will setting forth the terms of the trust,
including any amendments thereto made before the death of
the testator, regardless of whether made before or after the
execution of the testator's will, and, if the testator's will so
provides, including any amendments to the trust made after
the death of the testator. A revocation or termination of the
trust before the death of the testator shall cause the devise
or bequest to lapse.
Title 84 59
§ 302. Devises or bequests executed prior to effective
date
This act shall have no effect upon any devise or bequest
made by a will executed prior to the effective date of this
act.
§ 303. Construction
This act shall be so construed as to effectuate its
general purpose to make uniform the law of those states
which enact it.
§ 304. Citation
This act may be cited as the Uniform Testamentary
Additions to Trusts Act.
§ 305. Life insurance policies--Trustee named by will as
beneficiary
A policy of life insurance may designate as beneficiary
a trustee or trustees named by will, if the designation is
made in accordance with the provisions of the policy and
the requirements of the insurance company. The trustee or
trustees may be appointed immediately after the proving of
the will, and, upon appointment and qualification, proceeds
of such insurance shall be paid to the trustee or trustees to
be held and disposed of under the terms of the will as they
exist as of the date of the death of the testator and in the
same manner as other testamentary trusts are administered;
but if no qualified trustee makes claim to the proceeds from
the insurance company within twelve (12) months after the
death of the insured, or if satisfactory evidence is furnished
to the insurance company within such twelve-month period
showing that there is or will be no trustee to receive the
proceeds, payment shall be made by the insurance company
to the executors, administrators or assigns of the insured,
unless otherwise provided by agreement with the insurance
company during the lifetime of the insured.
§ 306. Liability for debts and taxes
The proceeds of the insurance as received by the trustee
or trustees shall not be subject to debts of the insured nor to
transfer or estate tax to any greater extent than if such
proceeds were payable to the beneficiary or beneficiaries
named in the trust and not to the estate of the insured.
§ 307. Commingling of proceeds
Such insurance proceeds so held in trust may be
commingled with any other assets which may properly
come into such trust.
§ 308. Prior beneficiary designations not affected
Nothing in this act shall affect the validity of any life
insurance policy beneficiary designation heretofore made
naming trustees of trust established by will.
60
IN THE MATTER OF THE ESTATE OF LAURA
EDNA HOLCOMB, Deceased, MARCUS HOLCOMB et
al., Appellants
v.
HEIDI CARTER DRENNAN, Personal Representative of
the Estate of Lela Elaine Carter, Deceased, Appellee
ON CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION II
[63 P.3d 9]
2002
THE COURT OF CIVIL APPEALS' OPINION IS
VACATED AND THE DISTRICT COURT''S PROBATE
ORDER IS AFFIRMED.
OPALA, J.
¶1 The dispositive questions tendered for certiorari are: (1)
Is the district court's finding that the decedent possessed
testamentary capacity clearly contrary to the weight of the
evidence? and (2) Is the district court's finding that the
decedent's will was not the [63 P.3d 11]product of undue
influence clearly contrary to the weight of the evidence?
We answer both questions in the negative.1
I ANATOMY OF LITIGATION
¶2 Laura Edna Holcomb (Mrs. Holcomb) died on 13 May
1995 at the age of 96. She had three living children at the
time of her death, Lela Elaine Carter (Elaine), Murray
Marcus Holcomb (Marc), and Laura Grace McNatt (Laura
Grace). Another son, William Maynard Holcomb (Bill),
predeceased her. On or about 15 June 1990, while residing
in Buffalo, Harper County, Oklahoma, Mrs. Holcomb
suffered a debilitating stroke. For reasons that were not
satisfactorily explained, she was not taken to the hospital,
but was instead taken by Elaine to Elaine's home in
Woodward where she lived until her death in 1995.
¶3 On 29 June 1990, approximately two weeks after
suffering the stroke, Mrs. Holcomb executed a will which
divided her estate, other than some mineral interests, into
fifths. Mrs. Holcomb's four children were each to receive
one-fifth and Elaine's daughter, Talley, was to receive
one-fifth. Talley was also bequeathed the mineral interests.
On that same day, Mrs. Holcomb was taken to the
emergency room of the hospital in Liberal, Kansas. She
remained hospitalized there and in Kansas City, Missouri,
for approximately two months. She then returned to
Elaine's home in Woodward.
¶4 On 21 August 1992, after the death of her son, Bill, Mrs.
Holcomb executed a second will, which increased Elaine's
share of the estate to two-fifths. The mineral interests were
again bequeathed to Elaine's daughter, Talley. On the same
date, Mrs. Holcomb, having inherited $80,000 upon the
death of a relative, assigned that inheritance to Elaine and
her elder daughter, Heidi Carter Drennan (Heidi), in equal
shares.
¶5 On 14 February 1995, approximately three months
before her death, Mrs. Holcomb executed a third will
leaving her entire estate to Elaine and, in the event Elaine
were to predecease her, to Elaine's heirs.
¶6 After her mother's death, Elaine petitioned the District
Court, Woodward County, to admit the 1995 will to
probate. Marc, Laura Grace, and Bill's two sons, Murray
Allen Holcomb and Warren Keith Holcomb (contestants),
challenged the will's admission on the grounds of (1)
improper venue, (2) lack of testamentary capacity, and (3)
undue influence. Prior to the trial of this cause, Elaine died.
Heidi was appointed personal representative of her mother's
estate and is now the proponent of her grandmother's will
(the will proponent). The district court found against
contestants on all issues and ordered the will admitted to
probate. Contestants appealed.
¶7 The Court of Civil Appeals, Division II (COCA),
reversed, holding that the district court's finding on the
issue of undue influence was clearly contrary to the weight
of [63 P.3d 12] the evidence. We granted certiorari on the
will proponent's petition and now vacate COCA's opinion
and affirm the district court's probate order.
II STANDARD OF REVIEW
¶8 Probate proceedings are of equitable cognizance.2
While an appellate court will examine and weigh the record
proof, it must abide by the law's presumption that the nisi
prius decision is legally correct and cannot be disturbed
unless found to be clearly contrary to the weight of the
evidence or to some governing principle of law.3 Because a
trial judge has an opportunity that is unavailable to an
appellate court to observe the demeanor and conduct of the
witnesses, deference should be accorded on review to the
trial tribunal's resolution of conflicting testimony.4 If
legally correct, a district court's ruling will not be reversed
because of its faulty reasoning, erroneous finding of fact or
its consideration of an immaterial issue.5 When a will is
offered for probate, the factum of the will - i.e., (a) whether
the will has been executed with the requisite statutory
formalities, (b) whether the maker was competent to make a
will at the time, and (c) whether the will was the product of
undue influence, fraud or duress - becomes the singular
concern of the court.6 The emphasis of the judicial process
from beginning to end is to discern and effectuate the
decedent's dispositive intent.7
III THE DISTRICT COURT'S RULING THAT MRS.
HOLCOMB POSSESSED TESTAMENTARY
CAPACITY IS NOT CLEARLY CONTRARY TO
61
THE WEIGHT OF THE EVIDENCE.
¶9 Testamentary capacity exists when a person possesses,
in a general way, the ability to appreciate the character and
extent of the devised property, understands the nature of
the relationship between himself and the natural objects of
his bounty, and apprehends the nature and effect of the
testamentary act.8 Whether one possesses testamentary
capacity is a question of fact.9 The burden of persuasion
that a will maker lacked testamentary capacity rests upon
the will contestant.10 In adjudging a decedent's
testamentary capacity, it is appropriate for the trial tribunal
to consider evidence of the testator's mental capacity,
appearance, conduct, habits and conversation both before
and after the will's execution to the extent these [63 P.3d
13] factors are relevant to the maker's mental condition at
the time the will was executed.11
¶10 A great amount of conflicting evidence germane to
Mrs. Holcomb's testamentary capacity was introduced.
Witnesses called by contestants included the contestants
themselves, Marc's children, Laura Grace's daughter, a
home nursing supervisor, and Mrs. Holcomb's first
post-stroke physician. These witnesses cumulatively
testified that by the date of the execution of the will in
question, Mrs. Holcomb was mentally incompetent, was
speaking of deceased friends and relatives, including her
son, Bill, as if they were alive, was receiving mind-altering
drugs, was exhibiting increasing difficulty in sustaining a
coherent conversation, did not consistently recognize or
respond to them, and lacked the capacity to know what
property she owned.
¶11 The proponent challenged this evidence in every
respect. She obtained from Mrs. Holcomb's first post-stroke
physician an admission that, although he considered Mrs.
Holcomb incompetent, another physician could have
considered her "alert" and could have believed her to be
competent. Mrs. Holcomb's second post-stroke physician,
who treated her from 1993 until her death in 1995, testified
that although his patient continued to decline physically,
she remained "bright" and capable of making her own
decisions. He had no doubt that she remained competent up
to the time of her death.
¶12 One of Mrs. Holcomb's nephews visited her in the fall
of 1994 and the spring of 1995. He described his aunt as
"sharp as a tack." He testified that his aunt asked about his
children and, much to his surprise, remembered his son's
name even though she had seen the child only twice in her
life. He remembered commenting to his mother later that
Mrs. Holcomb was still capable of playing bridge. He stood
to gain nothing from the will and did not appear to be
especially close to his relatives on either side of the case.
¶13 A neighbor who frequently stopped by the house to
visit12 testified that Mrs. Holcomb was an active
participant in their conversations. The neighbor had to
watch the news before her visits because Mrs. Holcomb
"knew more about what was going on than I did a lot of
times." She also testified that Mrs. Holcomb knew who her
children were.
¶14 Mrs. Holcomb's hired daily caregiver testified that Mrs.
Holcomb was alert and carried on intelligent conversations
with her throughout the five years she attended to her. Mrs.
Holcomb knew who her children were and, when talking
about them, she identified each by name. She liked to talk
about politics. In the caregiver's opinion, Mrs. Holcomb's
mind was still sharp in 1994 and 1995.
¶15 Each of the parties who participated in the execution of
the 1995 will testified. One of the witnesses testified that
Mrs. Holcomb was alert, conversed with her attorney in
complete sentences, and seemed to comprehend what was
taking place. She watched people as they moved about in
the room and replied to whomever spoke to her. Mrs.
Holcomb's attorney testified that she and she alone
provided him with the dispositive provisions of the 1995
will. She was able to offer him a reasonable explanation for
devising her entire estate to Elaine. He testified that Mrs.
Holcomb knew who her children were and understood in a
general way what property she owned. He had no doubt
that she possessed the requisite competence to execute the
will. The neighbor who frequently visited Mrs. Holcomb
also participated in the execution of the 1995 will as the
decedent's proxy signer. She testified that she stayed after
the will's execution and visited with Mrs. Holcomb for
about thirty minutes. During their conversation Mrs.
Holcomb told her she had left everything to Elaine because
she was worried about Elaine's financial security.
¶16 The voluminous medical records included as exhibits
did little to shed light on Mrs. Holcomb's mental condition
as it relates to testamentary capacity. Their focus was on
her physical ailments and the treatment being employed to
relieve her symptoms. Notations on nursing reports
regarding certain aspects of Mrs. Holcomb's mental
condition were not consistently recorded and were not by
themselves sufficient indicators that she did or did not
possess the knowledge and understanding necessary for
testamentary capacity.
¶17 Although the testimony on both sides of the issue was
compelling, the trial judge [63 P.3d 14]had the benefit of
observing the witnesses as they testified. Deference is owed
to the trial court's determination of the witnesses' relative
credibility in the face of irreconcilable conflict,
contradiction, and potential bias.13 Where the nisi prius
decision is not clearly contrary to the weight of the
evidence, it must be affirmed.
IV THE DISTRICT COURT'S RULING AGAINST
CONTESTANTS ON THE ISSUE OF UNDUE
62
INFLUENCE IS NOT CLEARLY CONTRARY TO
THE WEIGHT OF THE EVIDENCE
¶18 The district court may deny probate of a will found to
be tainted by undue influence.14 The burden of persuasion
that a will has been so tainted rests on the contestant.15
Ordinarily, the contestant alleging undue influence also
bears the burden of producing evidence,16 but upon a
finding by the trial court (a) that a confidential relationship
existed between the will maker and another, stronger party
and (b) that the stronger party actively assisted in the
preparation or procurement of the will, a rebuttable
presumption of undue influence at once arises that shifts to
the will proponent the burden of producing evidence.17
The effect of this alteration in the allocation of the burden
of proof is to shift the risk of an adverse decision from the
contestant to the [63 P.3d 15] will proponent.18 If the will
proponent then introduces evidence which would support a
finding that undue influence was not brought to bear
against the will maker, the presumption disappears and the
trial court must determine the existence or nonexistence of
undue influence on the basis of the evidence actually
adduced directly on the issue.19 If the will proponent fails
to introduce the requisite quantum of evidence, the court
must direct a verdict for the contestant.20
¶19 In determining whether a contestant's evidence
establishes the basic facts that give rise to the presumption
of undue influence, consideration should be given to the
following non-exclusive list of factors: (1) whether the
alleged influencer was or was not a natural object of the
maker's bounty; (2) whether the alleged influencer was a
trusted or confidential advisor or agent of the will''s maker;
(3) whether the alleged influencer was present and/or active
in the procurement or preparation of the testamentary
instrument; (4) whether the will's maker was of advanced
age or impaired faculties; and (5) whether independent and
disinterested advice regarding the testamentary disposition
was given to its maker.21
¶20 Whether the basic facts of the presumption of undue
influence have been satisfactorily established is a
preliminary question of fact to be decided by the trial
court.22 In this case, finding that Elaine was not active in
the procurement or preparation of her mother's will, the
trial court did not implement the presumption and therefore
did not shift the burden of going forward with the evidence
to the will proponent. Contestants argue that this finding
was erroneous and wrongly denied them the presumption's
procedural benefit. They argue that had the court
implemented the presumption, it would have been
compelled to find the issue of undue influence for them
because the will proponent's rebuttal evidence was not
sufficient to support a finding of the nonexistence of undue
influence.
¶21 For the reasons set forth below, we agree that the
presumption of undue influence was contestants' due, but
hold that the will proponent's proof was sufficient to rebut
the presumption. Hence, while its evidentiary methodology
was flawed, the district court ultimately decided the issue
of undue influence from a correct procedural standpoint,
i.e. "as if no presumption had been operable in the case."23
We, too, have examined and weighed the record proof on
that basis and cannot say that the district court's decision
against contestants is clearly contrary to the weight of the
evidence.
A. Contestants Established the Basic Facts of the
Presumption
¶22 First, to invoke the presumption a contestant must
establish the ex-[63 P.3d 16]-istence of a confidential
relationship between the will maker and another, stronger
party. A confidential relationship is a fiduciary relationship
and exists whenever trust and confidence are placed by one
person in the integrity and fidelity of another.24 The record
contains ample proof that a confidential relationship
existed between Elaine and her mother. Mrs. Holcomb
appointed Elaine as her attorney in fact as early as 1972
and gave Elaine check-writing privileges on her bank
account. After her 1990 stroke, Mrs. Holcomb moved to
Elaine's house in Woodward where Elaine became her
mother's primary caretaker, providing directly or indirectly
for her mother's physical needs and taking care of her
personal, legal, and financial affairs. The record clearly
shows that this relationship continued until Mrs. Holcomb's
death in May 1995.
¶23 Second, a contestant must establish that the stronger
party participated in the procurement or preparation of the
decedent's will.25 The participation that will taint a will
[63 P.3d 17]must be active participation in the substance of
the testamentary act and not just participation in formal
matters undertaken at the direction of the will maker.26
¶24 Mrs. Holcomb was 91 years old when she was left
paralyzed and bedridden by a stroke. Her vision and
hearing were both significantly impaired. She was
completely dependent upon Elaine for her physical needs,
including food, shelter, clothing, personal hygiene, the
administration of pain medication, and medical and/or
nursing attention. Elaine shopped for her mother, wrote her
checks, prepared records for the preparation of her tax
returns, sent gifts on her behalf, and received her telephone
calls and visitors. Elaine had the ability to control the
entertainment her mother enjoyed as well as her receipt of
news and other information. Mrs. Holcomb died in May
1995 at the age of 96. She lived the last five years of her
life in a single bedroom of Elaine's house, apparently never
well enough to leave that room except to go to the hospital.
¶25 Elaine had physical control of her mother's monthly
income. She cashed her mother's social security and royalty
63
checks each month, spent the money (approximately
$85,000 over five years), and kept no records from which
an accounting could be had. Elaine also had check-writing
privileges on her mother's checking account and wrote
checks over the five years totaling at least $190,000. Some
of the checks went to pay for Elaine's personal and
household expenses. Elaine repeatedly wrote checks in
excess of the account's balance, incurring significant
overdraft charges.
¶26 Elaine was actively involved in her mother's legal
affairs. Elaine repeatedly consulted with Don Gaston, her
mother's attorney, without Mrs. Holcomb's participation in
the consultation. Mrs. Holcomb never initiated her
meetings with Mr. Gaston despite the testimony of Elaine's
children that their grandmother was able to and often did
converse by telephone. On at least two and possibly three
occasions the attorney drafted documents for Mrs.
Holcomb's execution at Elaine's direction without first
consulting with Mrs. Holcomb. In each such case, Elaine
and/or one of her children benefited from the transaction.
¶27 Mr. Gaston also came to represent Elaine sometime
during the five-year period he represented her mother and
did not disclose this to Mrs. Holcomb. The attorney's time
records and billing statements relating to Mrs. Holcomb's
legal matters treat Elaine and her mother interchangeably as
the client, making it difficult to tell who the client actually
was and what was being done for whom. The attorney
testified to more than one instance where legal services
were performed for Elaine but billed to her mother.
Although Elaine paid most of her personal expenses out of
her mother's checking account, she paid for all the legal
services rendered to her mother with one exception out of
her own checking account.
¶28 Contestants introduced evidence that Elaine had the
kind of personality that could easily have come to dominate
Mrs. Holcomb given her frail and dependent condition.
Even they, who were not physically compromised and
under Elaine's care, found her to be aggressive,
intimidating, controlling and manipulative, a dominant
personality whom it was useless to oppose. Each felt that
he (or she) had a close relationship with Mrs. Holcomb
prior to her stroke, providing examples of the ways in
which they helped her with her household and personal
chores or spent time with her in other ways. Once Mrs.
Holcomb was ensconced in Elaine's home, contestants
found it increasingly difficult to visit with her without
interference from Elaine or one of her children and they
came to feel unwelcome in Elaine's house. They testified
that Elaine often argued with and denigrated Marc in front
of Mrs. Holcomb. Marc and Laura Grace visited their
mother [63 P.3d 18]practically every weekend for the five
years she lived with Elaine, sometimes traveling long
distances, yet Mrs. Holcomb commented to a distant
relative in early 1995 that she rarely saw Marc and Laura
Grace.
¶29 All of these circumstances raise the inference that
Elaine was active in the procurement or preparation of the
will in contest. Mrs. Holcomb's frail physical condition, her
complete dependence on Elaine for the necessities of life,
and contestants' testimony that Elaine exercised control
over every aspect of her mother's life in a way that
excluded them from participating in decisions affecting
Mrs. Holcomb gave Elaine the opportunity to abuse the
position of confidence she held with her mother. Viewed in
the context of these conditions, Elaine's handling of her
mother's financial affairs gives credence to the contestants'
contention that Mrs. Holcomb's actions were not in fact her
own. Elaine's expenditure of tens of thousands of dollars in
cash without maintaining any records to account for it is
unconscionable under the circumstances. No one who does
such a thing can reasonably expect others to accept without
explanation that it was spent only as directed by an elderly,
ill, bedridden woman. Elaine's handling of the checking
account also raises suspicion that it was she and not her
mother who controlled the outflow from that account. Not
only were funds from that account used in ways that
benefited Elaine personally, but the account itself was
mismanaged to such an extent that the Bank had to issue a
warning that the account was being rapidly depleted. Mrs.
Holcomb was made aware of the Bank's warning and, about
that time, came to believe that she needed to sell her home
in Buffalo in order to remain financially afloat. Yet she
assigned to Elaine and Heidi an $80,000 inheritance she
had received. There was no evidence that Mrs. Holcomb
treated her financial well-being so cavalierly before the
stroke left her without the ability to physically control her
own financial affairs. It is hence a fair inference that Elaine
was substituting her own decisions for those of her mother
and doing so for her own financial benefit.
¶30 Elaine''s involvement in her mother's legal affairs is
even stronger circumstantial evidence that she was active in
the procurement or preparation of the will in contest.
Elaine met many times over the years with Mrs. Holcomb's
attorney to discuss her mother's legal affairs without the
participation of Mrs. Holcomb. Several times this led to the
drafting of instruments - including at least one earlier will -
for Mrs. Holcomb's execution on Elaine's instructions
without the attorney first consulting with Mrs. Holcomb.
The attorney's time records show that Elaine met with him
close in time to the events in controversy and that Mrs.
Holcomb was not included in the consultation.
¶31 Although there is no direct proof of Elaine's active
participation in the procurement or preparation of her
mother's will, the outlined factors constitute a sufficient
convergence of circumstances to justify shifting to the
will's proponent the burden of producing evidence of the
nonexistence of undue influence.
64
B. The Will Proponent's Rebuttal of the Presumption
¶32 The party against whom a presumption of undue
influence operates has the burden of introducing evidence
which would support a finding of the nonexistence of
undue influence. In In re Estate of Maheras, we cited two
factors as admissible evidence to meet this burden: (1) the
termination of the confidential relationship prior to the
will's execution and (2) the receipt by the will maker of
independent and competent advice regarding the
disposition of the estate.27 Some may have interpreted
Maheras as restricting the evidence admissible to rebut the
presumption to these two factors alone. Recognizing that
Maheras lends itself to this interpretation, we take today the
opportunity to clarify that while proof of the two factors
cited in Maheras will generally suffice to [63 P.3d 19]
rebut the presumption, their absence is not fatal to the
presumption's rebuttal so long as other probative evidence
is adduced. This accords with the unfettered evidentiary
norm set out in our earlier common law that the
presumption of undue influence "is one that may be
overcome by evidence such as will lead the court to
conclude that no undue influence was exerted."28
¶33 The will proponent argues that she introduced evidence
which would support a finding of the nonexistence of
undue influence. The will proponent does not bear the
burden of persuasion, but must simply introduce some
evidence from which the trier could find that undue
influence did not engender the will's dispositive provisions.
While we agree with contestants that record proof of the
two Maheras factors -- termination of the confidential
relationship and receipt of independent advice -- is lacking,
we hold that the will proponent introduced other evidence
sufficient to support a finding of the nonexistence of undue
influence.
¶34 We address the Maheras factors first. With respect to
the first factor, the record contains no evidence -- and the
will proponent does not contend -- that the confidential
relationship between Elaine and her mother was severed
prior to the initiation and execution of the will in contest.
¶35 The second factor recognized in Maheras as sufficient
to rebut the presumption is that the will maker received
independent advice, i.e. advice separate and apart from the
party with whom the will maker stands in a confidential
relationship. Advice is "an opinion or recommendation
offered as a guide to action."29 For advice to be considered
independent, the advisor must (1) provide the will maker
with a full and private consultation regarding the
disposition of his estate, (2) be competent to inform the
will maker about the legal effect of his dispositive
intentions, and (3) be sufficiently dissociated from the
interest of the party with whom the will maker stands in a
confidential relationship that the advisor can provide
impartial and confidential advice.30
¶36 The record before us indicates that although Mrs.
Holcomb's attorney met privately with her from time to
time, he spent a great deal more time with Elaine
consulting about Mrs. Holcomb's legal affairs than he did
with Mrs. Holcomb. These consultations included lengthy
discussions of family history from Elaine's perspective and
resulted on a few occasions in documents being drafted for
Mrs. Holcomb's execution without first consulting her. A
critical component of independent advice is the advisor's
knowledge of the will maker's circumstances ascertained
through consultation with the client. The inference in this
case is practically unavoidable that any advice Mr. Gaston
gave Mrs. Holcomb regarding the disposition of her estate
was formulated in the context of information received from
Elaine rather than from Mrs. Holcomb. Additionally, Mr.
Gaston's testimony did not establish that he offered her any
advice or counsel about the legal consequences or familial
ramifications of leaving her entire estate to Elaine. In light
of the attorney's knowledge of Mrs. Holcomb's physical
infirmities, her dependence on Elaine, and Elaine's active
involvement in her mother's legal affairs in general, the
record proof of the attorney's interaction with Mrs.
Holcomb can hardly be said to [63 P.3d 20]show that
independent advice was given.31
¶37 Despite the absence of proof of the Maheras factors,
we agree with the will proponent's contention that other
evidence in the record was sufficient to support a finding of
the nonexistence of undue influence. Elaine was not only a
natural object of her mother's bounty, but had by nature a
greater claim to her mother's affection and gratitude in light
of the daily care she provided to her for five years.32
Influence arising out of acts of kindness, does not
constitute undue influence.33 There was testimony that
Mrs. Holcomb, despite her physical impairments, continued
to have at the time of the critical events in controversy a
strong will and independent nature, which prevented
anyone, including Elaine, from controlling her actions.
Inferences to the contrary from Elaine's physical control of
Mrs. Holcomb's financial and legal affairs were
controverted by testimony that all financial and legal
transactions initiated or carried out by Elaine were done so
only at Mrs. Holcomb's express direction and under her
complete control.
¶38 Furthermore, the inference from Elaine's active
involvement in her mother's legal affairs that she unduly
influenced the will at issue is directly contradicted by Mr.
Gaston's testimony that Elaine had absolutely nothing to do
with fashioning the contents of her mother's will. While
admitting that he had performed some legal services for
Mrs. Holcomb at Elaine's direction, Mr. Gaston was
adamant that no such thing had taken place in the drafting
of this will. He testified that it was Mrs. Holcomb alone
who provided the dispositive terms of the will to him and
that this was done outside of Elaine's presence. He further
testified that Mrs. Holcomb cogently told him her reasons
65
for the disposition she was making.34 He also pointed out
that after the will was executed, Elaine made a comment to
him that indicated she did not know the nature of the
changes her mother had made to her will.
¶39 Other evidence rebutting the presumption of undue
influence came from Elaine's two daughters, who testified
that on several occasions they had heard their grandmother
say she wanted to leave everything to their mother and that
their mother tried to dissuade their grandmother from doing
so.
¶40 Finally, the testimony of the neighbor who frequently
visited Mrs. Holcomb and served as the proxy signer to her
1995 will also supported a finding of the nonexistence of
undue influence. She testified that she visited with Mrs.
Holcomb for thirty minutes after the will's execution, at
which time Mrs. Holcomb told her that she had left
everything to Elaine because she wanted to be sure Elaine
was financially secure. This expression of concern for
Elaine's financial security was not inconsistent with actions
Mrs. [63 P.3d 21] Holcomb had taken in the years prior to
her illness to assist Elaine.
¶41 We hold that the outlined record proof is sufficiently
probative of the absence of undue influence to make the
presumption inoperative.
C. The District Court's Finding That Mrs. Holcomb's
Will Was Not Tainted by Undue Influence Is Not
Clearly Contrary to the Weight of the Evidence.
¶42 The will proponent's successful rebuttal of the
presumption restores the case to the procedural posture it
would have had if the presumption had never been
operative.35 This means that contestants must prove the
existence of undue influence by a preponderance of the
evidence without the aide of the presumption.36 Undue
influence may be proved directly or circumstantially, but is
"ordinarily capable of proof only circumstantially."37 In
White v. Palmer,38 we set out the general principles to be
applied to evidence that undue influence was brought to
bear. In that case we said,
"It is not necessary that there be direct testimony that
threats were made or even persistent entreaty or persuasion
was brought to bear upon the mind of the testator. It is
sufficient that, if from the surrounding circumstances
connected with the making of the will it appears that any
undue influence has been exercised, the court should not
admit the will to probate. In determining the question of
undue influence, the court should take into consideration
the association of the parties, the opportunity for undue
influence afforded the person who is especially favored by
the terms of the will, and the effect of the will upon those
persons whom we would naturally expect to be the
recipients of his bounty.39
¶43 Contestants introduced no direct proof that Elaine
exercised undue influence over the terms of her mother's
will. What they did introduce was a considerable body of
circumstantial evidence that (a) Elaine was a dominant and
manipulative figure in the dynamics of the Holcomb
family, that (b) Mrs. Holcomb's frailty and dependence on
Elaine made her vulnerable to Elaine's dominance and
control, that (c) Elaine in fact exercised that dominance and
control as demonstrated by her dubious handling of Mrs.
Holcomb's money, her suspicious acquisition for herself
and her daughter of $80,000 her mother inherited at a time
when her mother was worried about her own financial
situation, and by her active involvement in her mother's
legal affairs. From this evidence the district court could
have concluded that Elaine controlled the terms of her
mother's testamentary instrument as well - but it did not.
¶44 Instead, the district court found that the will in contest
was the product of Mrs. Holcomb's free and voluntary act.
The evidence introduced by the will proponent in rebuttal
of the presumption stands also as the proof of the
nonexistence of undue influence in this post-presumption
stage of the proceeding. That evidence included testimony
that Mrs. Holcomb, although physically unable to carry out
tasks on her own, directed Elaine in everything she did on
her behalf so that, far from being dominated and controlled
by Elaine, Mrs. Holcomb was the dominant force in the
relationship. The will proponent also introduced evidence
from several sources that her testamentary intent was to
leave her entire estate to Elaine in gratitude for Elaine's
caretaking and because she feared more for Elaine's
financial security than for that of her other kin. The
evidence showed that this concern for Elaine's financial
situation did not suddenly arise af-[63 P.3d 22]-ter Mrs.
Holcomb came to live with Elaine, but had already
manifested itself for many years. On this record, we cannot
say that the district court's finding that the will was not the
product of undue influence is clearly contrary to the weight
of the evidence.
V SUMMARY
¶45 The district court found that the decedent, Laura Edna
Holcomb, possessed testamentary capacity and that her will
was not the product of undue influence. On review, those
findings cannot be reversed unless clearly contrary to the
weight of the evidence. Faced with a record consisting of
irreconcilably conflicting evidence, we are not free to alter
the district court's ruling that contestants failed to meet
their burden of establishing lack of testamentary capacity
and undue influence. The nisi prius findings are not clearly
contrary to the weight of the evidence. The order admitting
the will to probate must therefore be affirmed.
¶46 THE COURT OF CIVIL APPEALS' OPINION IS
VACATED AND THE DISTRICT COURT''S PROBATE
ORDER IS AFFIRMED.
66
¶47 HARGRAVE, C.J., WATT, V.C.J., and HODGES,
LAVENDER, OPALA, KAUGER and WINCHESTER, JJ.,
CONCUR;
¶48 BOUDREAU, J., DISSENTS;
¶49 SUMMERS, J., NOT PARTICIPATING.[63 P.3d 23]
FOOTNOTES
1Contestants also challenged on appeal the district court's
ruling that venue was properly laid in Woodward County.
The Court of Civil Appeals' opinion addressed the issue
and affirmed the lower court's decision. Contestants, who
secured a reversal of the lower court's order on other
grounds, did not timely file their own certiorari petition
objecting to the venue issue's appellate disposition. Our
pronouncement in Hough v. Leonard, 1993 OK 112, 867
P.2d 438, teaches that the prevailing party in the Court of
Civil Appeals may obtain this court's review of issues
properly raised and briefed on appeal, but not addressed by
the intermediate appellate court, without filing a petition
for certiorari. Id. at ¶18, at 446. Hough does not teach that
a certiorari respondent may, without filing a
counter-petition, seek to enlarge his (or her) own rights or
diminish those declared by the decision of the intermediate
appellate court in favor of the certiorari petitioner. A
certiorari respondent who brings no counter-petition stands
in a posture restricted to the defense of the relief granted.
Contestants did not file a counter-petition of their own
within the time allotted for a certiorari petition's timely
filing. They may nevertheless have expected our
re-consideration of the venue issue in light of a statement in
at least one of their responsive filings that their earlier
appellate arguments are to be considered incorporated by
reference. If by this contestants hoped to re-press the venue
issue, they did not succeed. Without a timely-filed request
for review of the venue issue, it is now beyond our
reviewing cognizance. An issue tendered and decided on
appeal but not reasserted by petition or counter-petition for
certiorari stands abandoned. See the provisions of Rule
1.180 (b), Supreme Court Rules, 12 O.S. 2001 , Ch.15,
App. 1.
2In re Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111,
1115; In re Estate of Lacy, 1967 OK 123, ¶6, 431 P.2d
366, 368.
3In re Estate of Maheras, 1995 OK 40, ¶7, 897 P.2d 268,
271-72; In re Estate of Eversole, 1994 OK 114, ¶7, 885
P.2d 657, 661. The phrase "weight of the evidence" does
not refer to a numerical calculation of either the number of
witnesses or the quantity of evidence for or against the
existence of a fact. It refers instead to the power of the
evidence to persuade. The quality and plausibility of the
evidence as well as other intangible factors enter into that
assessment. See Braunschweiger v. Waits, 36 A. 155, 156
(Pa. 1897) ("The weight of evidence is not a question of
mathematics, but depends on its effect in inducing belief. It
often happens that one witness, standing uncorroborated,
may tell a story so natural and reasonable in its character,
and in a manner so sincere and honest, as to command
belief, although several witnesses of equal apparent
respectability may contradict him. The manner and
appearance of the witness, the character of his story, and its
inherent probability, may be such as to lead a jury to
believe his testimony, and accept it as the truth of the
transaction to which it relates. The question for the jury is
not, on which side are the witnesses most numerous, but
what testimony do you believe?"). See also Smith v.
Moroney, 282 P.2d 470, 472 (Ariz. 1955).
4In re Estate of Gerard, 1995 OK 144, ¶13, 911 P.2d 266,
269; Prudential Fire Ins. Co. v. Stanley, 1942 OK 393, ¶15,
131 P.2d 88, 90.
5In re Estate of Maheras, supra note 3, at ¶7, at 272.
6In re Estate of Sneed, supra note 2, at ¶8, at 1115; In re
Heitholt's Estate, 1950 OK 6, ¶10, 213 P.2d 865, 867.
7In re Estate of Sneed, supra note 2, at ¶8, at 1115.
8In re Estate of Gerard, supra note 4, at ¶12, at 269; In re
Estate of Carano, 1994 OK 15, ¶14, 868 P.2d 699, 703.
9In re Estate of Sneed, supra note 2, at ¶9, at 1115.
10Id.
11Id.; In re Estate of Gerard, supra note 4, at ¶12, at 269.
12The neighbor was also the wife of the partner of the
attorney who drafted the will in contest.
13In re Estate of Gerard, supra note 4, at ¶18, at 270.
14In re Estate of Maheras, supra note 3, at ¶8, at 272. The
pertinent terms of 84 O.S. 2001 § 43 are:
"A will or part of a will procured to be made by duress,
menace, fraud or undue influence, may be denied probate,
and a revocation procured by the same means, may be
declared void." [emphasis added.]
15In re Estate of Maheras, supra note 3, at ¶8, at 272..
16See L. WHINERY, OKLAHOMA EVIDENCE, §§ 8.03
and 8.04 (2d ed. 1994). See also the UNIFORM
PROBATE CODE § 3-407 (11th ed. 1993) which states:
"Contestants of a will have the burden of establishing lack
of testamentary intent or capacity, undue influence, fraud,
duress, mistake or revocation. Parties have the ultimate
67
burden of persuasion as to matters with respect to which
they have the initial burden of proof."
17In re Estate of Maheras, supra note 3, at ¶9, at 273. A
presumption is a rule of law that alters the usual rules
governing the allocation of the burden of proof (consisting
of the burden of producing evidence and the burden of
persuasion). Whinery, supra note 16 at §9.19. A
presumption causes the existence of a fact (the presumed
fact) to be assumed when another fact (the basic fact) is
established, unless the party against whom the presumption
operates presents evidence to the degree of proof required
by law that the presumed fact does not exist. Id. The
existence of a given presumption and that presumption''s
basic fact underpinnings are determined by statute or
judicial decision. Id. at §9.01, §9.02. The procedural effect
of a presumption is governed by Article III of the
Oklahoma Evidence Code, 12 O.S. 2001 §2301 et seq. The
Code applies in all "civil proceedings, conducted by or
under the supervision of a court, in which evidence is
produced." 12 O.S. 2001 §2103. With the enactment of the
Oklahoma Pleading Code in 1984, 12 O.S. 2001 §§2001 et
seq., the legislature recognized only "one form of action to
be known as ''civil action'''. See 12 O.S. 2001 §2002 .
Special proceedings such as probate ceased at that time to
form a separate litigation class. See 12 O.S. 1981 §§3-6 ,
repealed by Laws 1984, c. 164, §32, eff. Nov. 1, 1984.
Although probate continues to operate under a separate,
statutory procedural track, it is nevertheless a civil action or
proceeding which is subject to the Evidence Code. The
provisions of the Code governing the effect of
presumptions in civil actions are found at 12 O.S. 2001
§2303 . They state:
"Except where otherwise provided by law, when the basic
fact of a presumption has been established as provided in
Section 302 of this Code [12 O.S. 2001 §2302 ]:
1. If the basic fact has any probative value of the existence
of the presumed fact, the presumed fact shall be assumed to
exist and the burden of persuading the trier of fact of the
nonexistence of the presumed fact rests on the party against
whom the presumption operates; or
2. If the basic fact does not have any probative value of the
existence of the presumed fact, the presumed fact is
disregarded when the party against whom the presumption
operates introduces evidence which would support a
finding of the nonexistence of the presumed fact and the
existence of the fact otherwise presumed is then determined
from the evidence in the same manner as if no presumption
had been operable in the case.
Because the basic facts of the presumption of undue
influence are not probative of the ultimate fact of undue
influence, the presumption falls into the second category of
the statute, shifting only the burden of producing evidence.
18Whinery, supra note 16 at §9.21.
19Id. See the provisions of 12 O.S. 2001 §2303(2) , supra
note 17.
20Whinery, supra note 16 at §9.21.
21Maheras, supra note 3, at ¶8, at 272-73.
22Where a presumption shifts only the burden of
producing evidence, the existence of its basic fact or facts
is a preliminary question of fact to be decided by the court
relative to its duty to allocate the burden of producing
evidence. Whinery, supra note 16 at §9.05. See the terms of
12 O.S. 2001§2105(A) , which provide:
"Preliminary questions concerning the qualification of a
person to be a witness, the existence of a privilege or the
admissibility of evidence shall be determined by the court,
subject to the provisions of subsection B of this section."
The finding of fact necessary to make a
burden-of-production-shifting presumption operative is a
preliminary question of the admissibility of evidence. This
is so because the basic fact that causes the ultimate fact to
be assumed is not probative of the ultimate fact and would
hence not be admissible in evidence absent the
presumption.
23See the provisions of 12 O.S. 2001 §2303(2) , supra note
17.
24In re Estate of Maheras, supra note 3, at ¶8, n.10, at 272,
n.10; Fipps v. Stidham, 1935 OK 855, ¶¶17-18, 50 P.2d
680, 683. See also In re Estate of Beal, 1989 OK 23, ¶15,
769 P.2d 150, 155, in which the court quoted with approval
the definition of "confidential relation" found in In re Null's
Estate, 153 A. 137, 139 (Pa. 1930), which stated:
'''Confidential relation'' is not confined to any specific
association of parties. It appears when the circumstances
make it certain the parties do not deal on equal terms, but
on the one side there is an overmastering influence, or, on
the other, weakness, dependence, or trust, justifiably
reposed; in both an unfair advantage is possible. Where one
is bound to act for the benefit of another, he can take no
advantage to himself. No precise language can define the
limits of the relation; it generally exists between trustee and
cestui que trust, guardian and ward, attorney and client, and
principal and agent. In such cases, the "confidential
relation" is a conclusion of law; in others, as parent and
child, it is a question of fact to be established by the
evidence." Id. at ¶15, at 154-55.
25There exists language in a few of our decisions
suggesting that the presumption of undue influence cannot
be applied to a person who is the natural object of a
68
testator's bounty even if the basic facts of the presumption
could otherwise be established. For example, in In re Estate
of Beal, supra note 24, at ¶14, at 154, we stated,
"There is an old and unbroken line of authority, however,
stating that the burden is met and a presumption of undue
influence attaches when the contestant establishes (1) a
confidential relationship between the two and (2) that the
beneficiary (who would not otherwise be entitled to the
testamentary benefits) assists in preparation or procurement
of the will. (citations omitted) In that event the burden
shifts to the party seeking to take under the will to rebut the
presumption." (emphasis added)
See also Anderson v. Davis, 1952 OK 193, 256 P.2d 1099
and Hubbell v. Houston, 1967 OK 138, 441 P.2d 1010.
This view was taken in In re Estate of Foley, 1974 OK CIV
APP 38, 531 P.2d 1075, in which the Court of Civil
Appeals opined,
"The contestants assert that a presumption of undue
influence by the beneficiary arose when it appeared from
the evidence that she was in a confidential relationship with
the testator and that she had participated actively in the
preparation of the will, and that the burden was on the
proponent to rebut this presumption, citing Anderson v.
Davis, 208 Okl. 477, 256 P.2d 1099 (1952). It appears to
us that this is too narrow a reading of the Anderson case. In
addition to the above factors, that case requires that the
devisee be someone not within the ordinary circle of
expected beneficiaries of the testator''s bounty for the
presumption to arise." (emphasis added) Id. at ¶5, at 1078.
The exclusion of the "expected beneficiaries" from the
purview of the presumption is not and never has been the
rule in Oklahoma. Moreover, it has no foundation in the
equity jurisprudence of England or America. In the early
Oklahoma case of Myers v. Myers, 1927 OK 394, 266 P.
452, a case involving the alleged exercise of undue
influence by one brother upon another, this court stated the
rule that,
"where undue influence is one of the grounds for the
setting aside of a will and a person assists in the
preparation of same and is present at the time of its
execution and is a beneficiary under the will, and other
beneficiaries are excluded from the presence of the testator
and a confidential and fiduciary relationship exists, the
presumption of undue influence arises which calls for a
careful scrutiny by the court, and the burden is upon the
proponent to show the absence of undue influence." Id. at
¶35, at 455-456.
The court in that case found that the relationship between
the testator and his brother was not of a sufficiently
confidential nature to warrant application of the
presumption. See also In re Sperl''s Estate, 103 N.W. 502,
504-05 (Minn. 1905) (reviewing the development of the
rules under which courts of equity would set aside gifts
made to a donee standing in a confidential or fiduciary
relationship to the donor and the gradual extension of those
rules to wills made under suspicious circumstances;
holding that where confidential relations exist between
parties, including parent and child, and one of them obtains
from the other an inequitable advantage, equity will set
aside the transaction.).
The correct rule is that the kindred relationship between the
will maker and the other party does not raise a barrier to the
application of the presumption, but is simply one of several
factors to be considered in determining whether the
presumption arises. See In re Estate of Maheras, supra note
3, at ¶8, at 272.
26In re Estate of Maheras, supra note 3, at ¶9, at 273; In re
Estate of Beal, supra note 24, at ¶20, at 156
27Hunter v. Battiest, 1920 OK 277, ¶20, 192 P. 575, 576;
In re Estate of Maheras, supra note 3, at ¶9, at 273.
28In re Anderson's Estate, 1929 OK 434, ¶0 (Syl. 4), 286
P. 17, 17-18 (Syl.4); In re Harjoche's Estate, 1944 OK 96,
¶14, 146 P.2d 130, 132 (stating, with respect to the rule
requiring proof of independent advice, that the "rule seems
rather harsh, and restricted as to the character of evidence
that may be received. It is not every testator that needs
competent and independent advice in such matters."); In re
Estate of Foley, supra note 25, at ¶7, at 1079 ("[W]e do not
agree that the rebuttal of undue influence under Oklahoma
law requires proof of independent advice given to the
testator as to the wisdom of his chosen course of action.
This is simply one method of rebutting the presumption of
undue influence, not the exclusive method."); In re Estate
of Sneed, supra note 2, at ¶18, n.22, at 1118, n.22. Accord,
In re Bottier's Estate, 150 A. 786, 787 (N.J. Prerog. Ct.
1930); Betz v. Lovell, 72 So. 500 (Ala. 1916).
29Webster's Encyclopedic Unabridged Dictionary of the
English Language 21(Gramercy Books 1996).
30In re Estate of Maheras, supra note 3, at ¶9, n. 21, at 273,
n.21.
31See Miller v. Miller, 47 A.2d 32 (N.J. 1946), in which an
inter vivos gift of a home was made by a 70 year-old
mother to her daughter. The mother suffered from some
degree of dementia and the daughter had been caring for
her for years. An attorney was asked by the mother's pastor
to call on her and the attorney did so and conferred
privately with her. The mother told him without any
prompting that she wanted to give the house to her
daughter because of her daughter's devotion. The court
noted, "The attorney did not inquire into the mother's
financial condition or advise her as to the wisdom of the
69
proposed transfer. He merely took her instructions." The
attorney then drafted the deed and called upon the mother
again for its execution. The attorney at that time "explained
in a formal way the contents of the document, that is, that it
was a deed conveying to her daughter the homestead."
Based on this interaction between the attorney and the
mother, the court said, "It does not appear that Mrs. Miller
received any advice in the transaction. The advice which
the law requires is not a mere statement of the operation of
the deed but is a calling to the mind of the transferor of the
probable or possible effect upon her of the transaction and
a counseling with her as to whether or not she should make
the gift." Id. at 229-30.
32In this connection, Laura Grace testified that her mother
once told her, "The one that spends the most time with you
and the one that you're - that helps you a lot you just
naturally do a little bit more for them."
33In re Estate of Webb, 1993 OK 75, ¶27, 863 P.2d 1116,
1121; Canfield v. Canfield, 1934 OK 43, ¶10, 31 P.2d 152,
156.
34Gaston recorded her sentiments in the will, which says,
"I hereby give all of my estate to Lela Elaine Carter in
recognition of her loving care over the last several years
and the fact she has greater financial need than either Laura
Grace McNatt or Murray Marcus Holcomb."
35See the provisions of 12 O.S. 2001 §2303(2) , supra note
17.
36Brown v. Minter, 1922 OK 222, ¶4, 207 P. 976, 977.
37In re Estate of Beal, supra note 24, at ¶13, at 154; In re
Sperl's Estate, supra note 25, at 504 ("[P]roof of undue
influence on a testator must concern things hidden from
ordinary knowledge, and provable in large measure by
circumstances only.").
381971 OK 149, 498 P.2d 1401.
39Id. at ¶26, at 1406.
70
IN THE MATTER OF THE ESTATE OF A.E.
RICHARDSON
JAMES E. RICHARDSON, Plaintiff/Appellant
v.
FIRST NATIONAL BANK & TRUST COMPANY OF
NOWATA, Defendant/Appellee
[50 P.3d 584]
2002
REVERSED AND REMANDED
Kenneth L. Buettner, Judge:
¶1 Plaintiff/Appellant James E. Richardson (Son) sought an
omitted child's share from the estate of his father, A.E.
Richardson (Decedent). Defendant/Appellee First National
Bank & Trust Company of Nowata (Executor or Bank)
moved for summary judgment on the basis that Decedent
intentionally omitted Son in an amendment to a pour-over
trust executed after Decedent's Will. The trial court found
no dispute of material fact that Decedent intentionally
omitted Son from his Will. 1 The trial court also granted
summary judgment to Executor on Son's claim for unpaid
child support. 2 We hold that the provisions of a pour-over
trust, which have been amended after a will is executed, are
not incorporated by reference in the will so that the
amended provisions of the trust constitute competent
evidence of the testator's intent to omit an heir as required
by Oklahoma's pretermitted heir statute. We therefore
reverse and remand this matter for determination of Son's
share in the estate as a pretermitted heir.
¶2 Summary judgment proceedings are governed by Rule
13, Rules for District Courts, 12 O.S.Supp.1993, Ch. 2,
App.1. Summary judgment is appropriate where the record
establishes no substantial controversy of material fact and
the prevailing party is entitled to judgment as a matter of
law. Brown v. Alliance Real Estate Group, 1999 OK 7, 976
P.2d 1043, 1045. Summary judgment is not proper where
reasonable minds could draw different inferences or
conclusions from the undisputed facts. Id. Further, we must
review the evidence in the light most favorable to the party
opposing summary judgment. Vance v. Fed. Natl. Mortg.
Assn., 1999 OK 73, 988 P.2d 1275.
¶3 The undisputed evidence in the record on appeal
establishes that Decedent executed his Last will and
Testament June 22, 1998 (Will). The Will provided that
after debts, funeral expenses, and taxes were paid, the
residue of the estate would pour over into The A.E.
Richardson Trust, dated September 25, 1992 (1992 Trust).
The Will appointed the Bank as Executor of Decedent's [50
P.3d 585] estate. The Will did not refer to Son by name or
by class.
¶4 Also on June 22, 1998, Decedent executed a First
Amendment to the Declaration of Trust of A.E. Richardson
(1998 Amendment). The 1998 Amendment amended the
1992 Trust in its entirety. Article 13(J) of the 1998
Amendment provided that if any beneficiary of the trust
contests the 1992 Trust or the Will, or seeks any
adjudication that the trust or Will is in any way void, then
that person will be treated as if he predeceased Decedent.
That provision also specifically stated "The Settlor's son,
John R. Richardson, 3 is not named in this trust document
as a beneficiary, as he has been assisted and provided for
during the Settlor's lifetime." Article 16(B) provided that
distribution of 100% of the trust proceeds shall go to the
A.E. and Juanita Richardson Charitable Foundation.
¶5 Decedent executed the Second Amendment to the
Declaration of Trust of A.E. Richardson March 9, 1999
(1999 Amendment). The 1999 Amendment indicated that it
changed the 1998 Amendment only by adding Article
3(B)(6):
6. Intentional Omissions: The omission in this Trust
Declaration of any provision for the Settlor's sons, JOHN
RICHARDSON and JAMES RICHARDSON, or any other
relative or person is not due to oversight or neglect, but is
based upon the Settlor's considered desire to omit such
person and to benefit only the beneficiaries designated
herein. Notwithstanding any and all of the other provisions
of this trust instrument, if any beneficiary or potential
beneficiary shall object to this trust instrument, any
provisions hereof or any part of the trust estate hereunder,
then he or she shall be deemed to have predeceased the
Settlor for the purposes of this Trust and any provisions
herein contained.
¶6 Decedent died April 17, 1999. The trial court admitted
to probate Decedent's Last Will and Testament executed
June 22, 1998, found that Decedent's survivors included a
wife and his two adult sons, and appointed Bank as
Executor.
¶7 Son filed his Application for Share as Omitted child
September 13, 1999. 4 Son asserted that Payne County
Case No. 1240D established Decedent's paternity of Son.
Son next asserted that he is not mentioned by name or class
in the Will and that the Will contains no provision
indicating that the omission was intentional. Son therefore
requested that the court determine that he was an
unintentionally omitted child and that the court include Son
in the decree of distribution and award him his proper
statutory share of the estate. 5
¶8 Executor filed its Motion for Summary Judgment
December 27, 1999. Executor argued that the Will
specifically incorporates the 1992 Trust and pours all the
estate assets into the trust, and the 1992 Trust expressly
omits Son from receiving any distribution. Executor argued
71
that the incorporated Trust, [50 P.3d 586] as amended,
satisfied the requirements for an intentional omission of a
legal heir.
¶9 Article III of the Will provides, in part:
I give all the rest and residue of my property, not already in
trust, of every kind and description, real personal, and
mixed, ... including any lapsed or void bequest or devise, to
the Trustee of the A.E. Richardson Trust, dated September
25, 1992, as may be amended, to be administered and
distributed in accordance with the provisions of that Trust,
which is incorporated by reference in this Will.
If for any reason the disposition referred to above is not
operative or is invalid, ... then I give the residue of my
estate, ... to the Trustee named in the present provisions of
said Declaration of Trust to act upon my death, to be
administered ... as provided in ... said Declaration of Trust,
which for this purpose I incorporate by reference in this
Will.
The 1999 Amendment of the trust expressly provided for
the intentional omission of Son and his brother, and further
provided that if any party objected to the trust instrument,
that party would be treated as if he predeceased Decedent.
¶10 As noted above, the trial court granted summary
judgment to Executor. Son does not dispute the material
facts. Rather, the parties dispute the legal effect of whether
the Will and pour-over trust accomplished the result of
intentionally omitting Son from inheriting from Decedent.
¶11 Testators are presumed to intend to provide for the
natural objects of their bounty. Smith v. Crook, 160
Cal.App.3d 245, 249, 206 Cal.Rptr. 524, 526 (1984). In
order to protect a testator and his issue from an
unintentional omission from the testator's will, Oklahoma's
pretermitted heir 6 statue provides:
§132. Provision for Children Unintentionally Omitted
When any testator omits to provide in his will for any of his
children, or for the issue of any deceased child unless it
appears that such omission was intentional, such child, or
the issue of such child, must have the same share in the
estate of the testator, as if he had died intestate, and
succeeds thereto as provided in the preceding section. 7
84 O.S. 1991 §132 (emphasis added). The Oklahoma
Supreme Court has held that the intent to omit a child from
inheriting must appear on the face of the will in "strong and
convincing language." Matter of Estate of Hoobler, 1996
OK 56, 925 P.2d 13, 17: Matter of Estate of Woodward,
1991 OK 25, 807 P.2d 262, 264; Monroe v. Lawrence,
1959 OK 261, 347 P.2d 1016, 1018 (intent to disinherit
must appear from the four corners of the will and
circumstances under which the will was executed cannot be
considered nor may extrinsic evidence be admitted to
establish such intent). Additionally, extrinsic evidence may
be admitted to show an heir was unintentionally omitted,
but extrinsic evidence is not admissible to show intent to
omit a natural heir. Smith v. Crook, supra. In addition,
simply leaving the entire estate to others is not alone
sufficient to show intent to omit a child. Estate of Crump v.
Freeman, 1980 OK 80, 614 P.2d 1096.
¶12 The issue then, is what constitutes the "face of the
will." We first note that 84 O.S.1991 §154 provides:
"Several testamentary instruments, executed by the same
testator, are to be taken and construed together as one
instrument." (Emphasis added). Also relevant in
determining what constitutes the "face of the will" is the
doctrine of incorporation by reference. There are two
factors required to successfully incorporate another
document into a will by reference: first, the other document
must be in existence when the will is executed; second, the
other document must be referred to in the will so as to
reasonably identify the other document. [50 P.3d 587]
Miller v. First National Bank & Trust Co., 1981 OK 133,
637 P.2d 75, 77. Miller specifically dealt with
incorporation of a trust into a will by reference. 8 The court
explained that the reference to the trust in the will "must
show the testator's intention to incorporate the instrument
into his will, 'or at least his intention that the instrument
should operate with his will in disposing of property left by
him at his death.'" Id., quoting Bottrell v. Spengler, 343 Ill.
476, 175 N.E. 781 (1931). The court indicated that once
another document is incorporated by reference into a will,
that document is operative as a part of the will. Id. We
therefore hold that a document which is successfully
incorporated by reference may constitute part of the "face
of the will" for purposes of finding intent to omit a natural
heir on the face of the will. Indeed, this court has implicitly
indicated that intent to omit may be found in an
incorporated trust document. See Corr v. Corr, 2001 OK
CIV APP 31, 21 P.3d 642, 645-646 (court reviewed trust,
incorporated by reference in will, to determine whether
adopted children had been intentionally omitted).
¶13 In Miller, the court noted:
Decedent's will clearly identifies the trust. The trust was in
existence when the will was executed. The reference
exhibits decedent's intention that the trust operate with his
will to dispose of his property. He signed the will and the
trust contemporaneously, indicating one instrument and a
scheme of testamentary disposition. ... The will without the
trust has no meaning or value to the decedent's estate plan.
Id. The court concluded that the trust was incorporated by
reference into the decedent's will so that the trust operated
as part of the will and that the provisions for the former
72
wife were statutorily invalidated along with those in the
will as a result of the divorce.
¶14 The undisputed evidence in the instant case shows that
the 1992 Trust and 1998 Amendment were in existence at
the time the Will was executed and that the Will expressly
provides for Decedent's intent that the trust be incorporated
into the Will. Indeed, Article III of the Will states that the
1992 Trust (as amended) is incorporated by reference.
However, the intent to omit Son was first mentioned in the
1999 Amendment to the trust, which was made well after
the Will was executed. Nothing in the record indicates that
the 1999 Amendment to the trust was executed with
testamentary formalities. Thus, the issue is whether a later
amendment may be considered as part of "the face of the
will."
¶15 There is no question that the Will effectively
incorporated by reference the trust provisions. The
Restatement of the Law, Third, of Trusts, §19 "'Pour-over'
Dispositions by Will" provides:
Where a will contains a testamentary disposition for the
purpose of adding property to an irrevocable or revocable
inter vivos trust, or for the purpose of funding a trust
pursuant to the terms of an instrument of trust executed but
not funded during the testator's lifetime, the intended
disposition is effective if and as
(a) Provided by statute; or
(b) Validated by the doctrine of incorporation by reference
or by the doctrine of facts of independent significance; 9 or
(c) The trust instrument, together with the will either [50
P.3d 588]
(i) satisfies an applicable rule of substantial compliance,
harmless error, or judicial dispensation, or
(ii) otherwise satisfies the policies underlying the formal
safeguards of the applicable Wills Act.
¶16 Oklahoma has adopted the Uniform Testamentary
Additions to Trusts Act (UTATA). See 84 O.S.1991 §§301
et seq. Executor argues that UTATA validates trust
amendments executed after the will. Section 301 of
UTATA provides:
A devise or bequest, the validity of which is determined by
the law of this state, may be made by a will to the trustee or
trustees of a trust established or to be established by the
testator or by the testator and some other person or persons
or by some other person or persons (including a funded or
unfunded life insurance trust, although the trustor has
reserved any or all rights of ownership of the insurance
contracts) if the trust is identified in the testator's will and
its terms are set forth in a written instrument, other than a
will, executed before or concurrently with the execution of
the testator's will or in the valid last will of a person who
has predeceased the testator, regardless of the existence,
size, or character of the corpus of the trust. The devise or
bequest shall not be invalid because the trust is amendable
or revocable, or both, or because the trust was amended
after the execution of the will or after the death of the
testator. Unless the testator's will provides otherwise, the
property so devised or bequeathed (a) shall not be deemed
to be held under a testamentary trust of the testator but
shall become a part of the trust to which it is given and (b)
shall be administered and disposed of in accordance with
the provisions of the instrument or will setting forth the
terms of the trust, including any amendments thereto made
before the death of the testator, regardless of whether made
before or after the execution of the testator's will, and, if the
testator's will so provides, including any amendments to the
trust made after the death of the testator. A revocation or
termination of the trust before the death of the testator shall
cause the devise or bequest to lapse. (Emphasis added.)
Although this provision of UTATA indicates that a
testamentary devise to a trust will not fail even if the trust is
amended after the will is executed, it does not expressly
alter the requirements for incorporation by reference in all
cases, or address the requirement of Oklahoma caselaw that
intent to omit an heir appear on the face of the will.
Nothing in the provisions of UTATA indicate that intent to
omit an heir can be established in a trust document
incorporated by reference in a will if the intent to omit is
expressed in an amendment to the trust document made
after the will was executed. 10
¶17 One treatise has explained that if the testator has
created a trust and has reserved the power to amend the
trust, the trust instrument may be incorporated by reference,
but the operative effect of the will cannot be changed by
subsequent amendments to the trust unless those
amendments are executed in accordance with the applicable
wills act. 1 Page on Wills, §260, p. 513. Effect will only be
given to the will and the trust provisions as they existed
when the will was executed. No effect can be given to the
subsequent modification of the trust instrument if it is not
executed in accordance with the act which regulates the
execution of a will. Id.
¶18 The formal requirements for executing and attesting
wills are codified at 84 O.S.Supp.1999 §55. Much less is
required to establish a trust. The elements of a creation of a
valid trust are simply the present intent by a competent
settlor that a competent trustee hold and manage an
ascertainable trust res for the benefit of sufficiently certain
beneficiaries, which is accompanied by an act which
constitutes a present, complete disposition of the trust
property. Matter of Estate of Stokes, 1987 OK 119, 747
73
P.2d 300, 302. In other words, a trust does not require the
formalities of witnesses, attestation, and notarization which
safeguard the [50 P.3d 589] testator's wishes for the
disposition of his estate. We are therefore persuaded that
the intent to omit a natural heir must be within the "face of
the will," which includes a document incorporated by
reference, so long as the document is in existence at the
time the will was executed. We do not believe that existing
law will countenance disinheriting children by the simple
expedient of signing a trust amendment after the will is
executed, without the formalities required by §55.
¶19 Likewise, while some cases have held that a gift to a
trust, established by a will, is valid even when the trust is
amended after the testator's will is executed, 11 it is also
the rule in Oklahoma that a testator cannot avoid her
spouse receiving an elective share by placing her entire
estate in trust for the benefit of her children. See Thomas v.
Bank of Oklahoma, N.A., 1984 OK 41, 684 P.2d 553
(held: property placed in trust by wife for her children must
be included in estate for purposes of husband's election to
take against the estate because the revocable trust res
remained under the wife's control until her death and was
therefore part of her estate.) We analogize that case to the
instant facts and find that Decedent could not cause his
entire estate to pass to the trust and therefore avoid Son
receiving his intestate share as a pretermitted heir–without
showing the intent to omit on the face of the will.
¶20 In the instant case, the face of the will contains no
"strong and convincing language" indicating intent to omit
Decedent's children. Additionally, the document which
does indicate intent to omit Son, the 1999 Amendment, was
not in existence at the time the Will was executed and
therefore may not be included in the terms of the Will as
incorporated by reference. The Will admitted to probate in
the instant case, including the incorporated trust as it
existed at the time the Will was executed, fails to mention
Son by name or class. Therefore, Son is a pretermitted
heir--a forgotten child. As such, Son shall take the share of
Decedent's estate to which he would be entitled had
decedent died intestate, according to the Oklahoma
pretermitted heir statue. 84 O.S.1991 §132.
¶21 REVERSED AND REMANDED.
¶22 JOPLIN, V.C.J, and JONES, J., concur. [50 P.3d 590]
FOOTNOTES
1The trial court's order is an interlocutory order in a
probate case which is appealable by right. See S.Ct.Rule
1.60(h), 12 O.S.Supp.1997, Ch. 15, App. Although the
appeal is from summary judgment, the Supreme Court
Rules refer to briefs in appeals from interlocutory orders
appealable by right and the Supreme Court ordered briefs
in the instant case in an order filed June 1, 2001. See
S.Ct.Rule 1.65, 12 O.S.Supp. 1997, Ch. 15, App.
2Son has not appealed the denial of his claim for unpaid
child support. Son also moved for summary judgment
which was denied.
3John R. Richardson is Son's brother. The 1998
Amendment did not refer to Son in any manner.
4The will does not include a no-contest clause, but the
1999 Amendment indicates that any person who objects to
the trust provisions shall be treated as having predeceased
Decedent. Son's application for share as omitted heir does
not amount to a will contest. A will contest seeks to deny
admission of a will to probate. Matter of Estate of Massey,
1998 OK CIV APP 116, 964 P.2d 238, 241. In Massey,
this court explained that when a will is offered for probate,
the only question is the factum of the will--whether it was
executed and attested properly, whether the testator was
competent and not under undue influence, fraud or duress.
Id. Finally, Massey explained that a will is not void for
omitting an heir. The question whether an omission was
intentional is not decided in a will contest, but it is decided
at the time the estate is distributed. Id. Accordingly, Son's
application for share as omitted heir would not implicate
the no-contest provision in the trust instrument.
5Also on September 13, 1999, Son filed his Petition for
Payment of Rejected Claim in which he asserted that
Decedent's estate had rejected Son's claim for child support
that Decedent owed pursuant to the 1941 judgment which
had established Decedent's paternity and had ordered
Decedent to pay Son's mother $25 per month during Son's
minority. Son alleged that Decedent made only one child
support payment and further alleged that the Estate owed
son $28,555 in child support and interest. Son requested
judgment against the estate for that amount plus attorney
fees.
6Black's Law Dictionary teaches "To 'pretermit' is to pass
by, to omit or to disregard, e.g. failure of testator to
mention his children in his will." Revised Fourth Edition
(1968).
7The preceding section, 84 O.S. 1991 §131, provides that
children born after the execution of a will, for whom no
provision is made in the will, succeed to that portion of the
estate that they would have received had the testator died
intestate.
8In Miller, the issue was whether 84 O.S. 1991 §114,
which revokes bequests for a spouse in a will in the event
the testator and the spouse have divorced after the
execution of the will, also operated to revoke provisions for
the spouse made in a trust which was incorporated by
reference into the will.
74
9The doctrine of "facts of independent significance" has
not been applied in any Oklahoma case. It is referred to as
an escape mechanism to effect the testator's intent in cases
where the doctrine of incorporation by reference does not
apply because the document to be incorporated was not in
existence at the time the will was executed. See In re
Tipler, 10 S.W.3d 244 (Tenn. App.1998) (Wife's will
directed that all of her estate go to her husband, and that if
her husband predeceased her, her estate be distributed
according to the provisions of her husband's will.
Husband's will was not in existence at the time Wife's will
was executed, but Husband did predecease Wife. Husband's
will was therefore not incorporated by reference, but its
provisions were used to effect Wife's intent by the doctrine
of facts of independent significance.) The doctrine will not
be used to alter the requirements of §132.
10 Indeed, if the complete §301 was applicable, as
Executor suggests, then a child could be omitted by an
amendment to the trust even after the death of the testator,
if the testator's will so provides.
11 See Matter of Will of Daniels, 247 Kan. 349, 356, 799
P.2d 479, 484 (1990).
75
In the Matter of the Estate of SHIRLEY JOYCE
SPEERS,
DANNY SPEERS, LEE ANN FINCHER, and SHERRY
ROSS, Appellants,
v.
ANN SPEERS, Appellee.
[179 P.3d 1265]
2008
CERTIORARI PREVIOUSLY GRANTED;
COURT OF APPEALS OPINION VACATED;
DISTRICT COURT ORDER REVERSED AND
REMANDED WITH INSTRUCTIONS.
David Youngblood, Atoka, Oklahoma, for Appellants.
Mark Morrison, Durant, Oklahoma, for Appellee.
KAUGER, J.:
¶1 The issue presented is whether the trial court erred in
admitting the contested will to probate. We find that it did.
FACTS
¶2 On June 15, 1982, Shirley Joyce Speers (testatrix)
signed a "Last Will and Testament" (will/instrument). It
named her husband, Ralph Speers (husband) as her
executor and Doyle Wesley Fincher as her alternate
executor. It also gave her daughter, Sherry Arlene Ross, her
household furnishings and appliances, and her son, Daniel
Eugene Speers, her livestock. Her husband was named the
beneficiary of the rest of the estate, provided he paid the
estate's expenses. If he failed to do so, his share was
devised in equal parts to James Nelson Fincher and
Jonathan Clyde Fincher, the testatrix's grandsons. The will
expressly omitted LeeAnn Fincher, the testatrix's daughter.
It was signed by Sadie B. Walton (Walton) and Walter
Durbin (Durbin) as witnesses and notarized by Vicky
Thomas (notary), but it was not stamped with a notary seal.
The testatrix died on April 20, 1997, and the instrument
was not probated at the time of her death.
¶3 At some point after his wife's death, the husband
married Ann Speers (appellee). The husband died some
time before June of 2005, and upon searching his records,
his second wife discovered the will. She filed her petition
on June 2, 2005, seeking to admit it to probate. The
instrument submitted by the appellee contained several
handwritten strikeouts and interlineations.1 On June 7,
2005, the testatrix's children, Danny Speers, LeeAnn
Fincher, and Sherry Ross (collectively, contestants) filed an
objection to the petition for probate of the will and contest
of the will, arguing that instrument was invalid because the
original will was destroyed, thereby invalidating any
copies.
¶4 On August 18, 2005, the trial court held a hearing on the
matter and Durbin was called as a witness. Durbin testified
that he remembered: 1) signing the instrument; 2) seeing
the testatrix sign the instrument; and 3) that there were no
strikeouts or interlineations on the document he signed.2
Durbin testified that he had no recollection of: 1) being
acquainted with Walton; 2) the location at which he signed
the instrument; 3) seeing Walton sign the instrument; 4)
hearing the testatrix state aloud "this is my will;" 5) seeing
the notary at the time he signed the instrument; or 6) seeing
the testatrix initial the bottom of each page.3 Durbin also
gave the following testimony:
Q. All right. Do you remember where you may have been,
wherever it was, when you signed the document?
A. I presume at the Church of Christ at Caney. She
probably come to the church and asked me to sign it, I
suppose, now, but I don't know that, positive.
Q. Okay, that's what we want to know, if you have a
positive recollection of that. That's where you think you
may been; is that right?
A. Could have been, yes.
Q. But as you sit here today - and correct me if I'm wrong -
but as you sit here today you don't specifically remember
this event, do you?
A. No. . . .4
Walton was not produced to testify.
¶5 On August 18, 2005, the trial judge entered a court
minute admitting the will to probate and appointing Doyle
Wesley Fincher the executor. On September 12, 2006, the
trial court filed a journal entry of judgment finding:
1) the will was a photocopy of an original with original
signatures attached;5
2) the will was not self-proving because it contained no
notary seal;
3) the will was required to be proved by subscribing
witnesses under 85 O.S. §55(5) and 49 O.S. §5;
4) there must be a showing that one of the subscribing
witnesses is deceased or insane if that witness cannot
testify, and the appellee made that showing;
5) the will was valid and was admitted; and
6) Doyle Wesley Fincher was named executor.
¶6 On September 29, 2006, the contestants filed their
petition in error. On February 22, 2007, the cause was
assigned to the Court of Civil Appeals. On September 21,
2007, the Court of Civil Appeals affirmed the ruling of the
trial court. On October 9, 2007, the contestants filed their
petition for certiorari, and we granted certiorari on January
22, 2008.
¶7 BECAUSE THERE WAS NOT SUFFICIENT
EVIDENCE IN THE RECORD THAT THE
INSTRUMENT WAS EXECUTED WITH THE
76
PROPER STATUTORY FORMALITIES, THE
INSTRUMENT SHOULD NOT HAVE BEEN
ADMITTED TO PROBATE.
¶8 Probate proceedings are equitable in nature.6 Although
this Court will examine and weigh the evidence, there is a
presumption that the trial court's decision is legally correct
and cannot be disturbed unless found to be clearly contrary
to the weight of the evidence or to some governing
principle of law.7 Where the probate of a will is contested
and the testimony is conflicting as to execution, the
judgment of the trial court will not be disturbed if there is
any substantial testimony supporting the judgment and
finding.8 If legally correct, a district court's ruling will not
be reversed because of faulty reasoning, an erroneous
finding of fact, or consideration of an immaterial issue.9
¶9 When a will is offered for probate, the singular concern
of the court is the factum of the will, which consists of
three elements: 1) whether the will has been executed with
the requisite statutory formalities; 2) whether the maker
was competent to make a will at the time; and 3) whether
the will was the product of undue influence, fraud or
duress.10 The emphasis of the judicial process is to discern
and effectuate the decedent's intent.11 The burden of proof
in the trial of a contest of the probate of a will is upon the
proponents of the will to make a prima facie showing that
the will is adequate for probate; then the burden shifts to
the contestants to establish the issues presented by their
contest.12
¶10 The elements of a valid will and the method for making
a self-proved will are found at 84 O.S. Supp. 2004 §55.13
Because there is no notary seal on the instrument, it is
undisputed that the instrument is not a self-proved will.
¶11 Here, the contestants do not allege that the testatrix
was incompetent to make a will, nor do they allege that the
will was a product of undue influence, fraud, or duress. The
contestants' allegation is that the proponent did not make
an adequate showing that the instrument was executed with
the following statutory formalities: 1) there were two
attesting witnesses; 2) the instrument was signed by the
testatrix in the presence of both attesting witnesses or that
the testatrix acknowledged to both witnesses that the
signature on the instrument was hers; 3) the testatrix
declared to both the attesting witnesses that the instrument
was her will; and 4) that both attesting witnesses
subscribed the instrument at the testatrix's request and in
her presence.14
A. The Trial Court Erred in Finding That There Were
Two Subscribing Witnesses.
¶12 The burden of proof rests upon the proponent of the
will to establish by preponderance of evidence that the will
was executed and published according to law.15 Title 58
O.S. 2001 §43 provides in pertinent part:
If the will is contested, all the subscribing witnesses who
are present in the county, and who are of sound mind, must
be produced and examined; and the death, absence or
insanity of any of them must be satisfactorily shown to the
court. If none of the subscribing witnesses reside in the
county, and are not present at the time appointed for
proving the will, or although such witnesses reside in the
county and are insane or incompetent, and such facts are
first made to appear to the court, either in contested or
noncontested will cases, the court may admit the testimony
of other witnesses to prove the sanity of the testator and the
execution of the will and, as evidence of the execution, it
may admit proof of the handwriting of the testator and of
the subscribing witnesses, or any of them . . . .[Emphasis
added.]
These statutory provisions clearly reflect an intent that, in
the event of a will contest, the testimony of the subscribing
witnesses is essential to prove the proper execution of the
will.16 The contestants argue that Walton's death was not
satisfactorily shown to the trial court.
¶13 While Durbin was called to testify in the matter,
evidence concerning Walton is de minimus. The instrument
contains the signature of a Sadie B. Walton in three places:
1) in the attestation clause; 2) at the end of the instrument;
and 3) in the notary's section. The only evidence regarding
Walton's absence was the following exchange between the
appellee's counsel and Durbin:
Q: Are you familiar with Ms. Walton?
A: No, I can't recall her, but I'm sure I knew her.
Q: All right. Do you understand that she's now deceased?
A: I was told that.17
There is otherwise no evidence in the record that Walton
was dead or unavailable at the time of the will contest.
Section 43 mandates that all of the subscribing witnesses
be present or that their absence or death must be
"satisfactorily shown."18
¶14 The statute does not define the term "satisfactorily,"
but this Court has recognized that the word "satisfy" means
to be free from doubt, suspense, or uncertainty, to set the
mind at rest, and satisfactory evidence, sometimes called
"sufficient evidence," is an amount of proof which will
ordinarily satisfy an unprejudiced mind beyond a
reasonable doubt.19 Under the facts presented, the trial
court could not, as a matter of law, have made the requisite
statutorily required finding that Walton's absence or death
was "satisfactorily shown."
¶15 Durbin also testified that he was not sure whether
Walton was present when he signed the will.20 The trial
court's determination that there were two subscribing
77
witnesses based solely on Durbin's testimony that he
couldn't recall Walton, that he had been told she was
deceased, and that he wasn't sure she was present when he
signed the will is clearly contrary to the weight of the
evidence.21
B. The Trial Court Erred in Finding Substantial
Compliance with the Statutory Requirements of
Publication by the Testatrix and the Presence of the
Testatrix and the Subscribing Witnesses at the
Signature of the Other.
¶16 Title 84 O.S. Supp. 2004 §55(2) requires that a
testatrix sign her will in the presence of two attesting
witnesses, or acknowledge to the witnesses that the
signature was made by her or her authority. Title 84 O.S.
Supp. 2004 §55(3) requires that a testatrix declare or
publish to two attesting witnesses that an instrument is her
will. Title 84 O.S. Supp. 2004 §55(4) requires that two
witnesses must sign a will at a testatrix's request and in her
presence. These are safeguards against imposition and
fraud, and therefore require substantial compliance.22
Substantial compliance relating to the publication of a will
and attesting by witnesses is all that is required, and no
formal request that witnesses sign or express declaration
that instrument is testator's will is required; but it is
sufficient if the testator, by words or conduct, conveys to
the witnesses that the instrument is his will and that he
desires them to witness it.23
¶17 The evidence of the testatrix's publication to Durbin
offered by the appellee is the attestation clause and the
following testimony by Durbin:
Q. . . . How did it happen that you became a witness to Ms.
Speers' will, if this, in fact, is her will?
A. Well, she came to me and wanted me to witness a will.
And I told her I would, and I did. . . .
Durbin also testifies that he saw the testatrix sign the
instrument and that she was present when he signed the
instrument.24 However, other than the attestation clause,
there is no evidence whatsoever that: 1) the testatrix signed
the instrument in Walton's presence or acknowledged to
Walton that the signature on the instrument was hers; 2) the
testatrix published the instrument as her will to Walton; or
3) Walton signed the instrument in the testatrix's presence.
¶18 This Court has held that where the attestation clause
recites due execution of a will, it creates a prima facie case
of due execution of the instrument, which can be overcome
only by clear and convincing evidence.25 In proceedings
for the probate of an instrument as a will where it appears
to have been duly executed, and the attestation is
established by proof of the handwriting of the witnesses or
otherwise, although their testimony is not available, or they
do not remember the transaction, it will be presumed, in the
absence of evidence to the contrary, that the will was
executed in compliance with all the requirements of law.26
¶19 Here, there was no evidence offered by the appellee
establishing the attestation clause either by handwriting
analysis, or any other form of proof. This is not sufficient
to create a prima facie showing of due execution of the
instrument, and therefore the instrument should not have
been admitted to probate. The error concerning Walton's
unavailability coupled with the lack of evidence regarding
its execution results in an instrument which should not
have been admitted to probate.
CONCLUSION
¶20 The formalities to be observed in the execution of wills
are simple and calculated to prevent fraud and uncertainty
in the testamentary dispositions of property. Where the
Legislature has seen fit to impose certain requirements for
the execution of a will, compliance with such requirements
is necessary to the validity of any instrument offered as a
will.27 Here, because of the absence of a notary seal, the
will presented for probate was not self-proving. The
evidence reflects that there was only one subscribing
witness. A determination that there were two subscribing
witnesses based solely on one witness' testimony that he
couldn't recall the other witness, that he had been told she
was deceased, and that he wasn't sure she was present when
he signed the will is clearly contrary to the weight of the
evidence. The evidence does not establish that the testatrix
substantially complied with the statutory requirements for
execution and publication. The proponent of the will
neglected to make a proper showing that the will was
suitable for probate. Therefore, we reverse the trial court
and remand with instructions that the will not be admitted
to probate.
CERTIORARI PREVIOUSLY GRANTED;
COURT OF APPEALS OPINION VACATED;
DISTRICT COURT ORDER REVERSED AND
REMANDED WITH INSTRUCTIONS.
EDMONDSON, V.C.J., OPALA, KAUGER, WATT, and
COLBERT, J.J., concur.
HARGRAVE, J., concurs in result.
WINCHESTER, C.J., TAYLOR, and REIF, J., (by separate
writing) dissent.
FOOTNOTES
1 The handwritten portions of the instrument: 1) strike out
the language naming the testatrix's grandsons as contingent
beneficiaries of the husband's gift and insert the word
"DAUGHTERS" above the stricken language; 2) strike out
the language bequeathing the testatrix's household
78
furnishings and appliances to Sherry Arlene Ross and insert
the words "LIVESTOCK," "DANNY," and "SON" above
the stricken language; and 3) partially strike out the
language expressly omitting LeeAnn Fincher as a
beneficiary. A copy of the will is attached to this writing.
2 Testimony of Walter Francis Durbin, Hearing on Petition,
Aug. 18, 2005, Record p. 7-8, 11, provides in pertinent
part:
Q. And did you, in fact, sign this document? This - or the
original of this document?
A. Yes, sir.
. . .
Q. Did you see Ms. Speers sign the original of that
document?
A. Yes, sir.
. . .
Q. . . . [Y]ou don't believe any of those - I'll call them
strikeouts or writeouts - none of those were on there when
you signed it; is that true?
A. No, sir, I believe that it was a three-page typewritten
document when she brought it to me.
Q. With no markings on it?
A. With no markings on it. . . .
3 Testimony of Walter Francis Durbin, see note 2, supra at
8-9, 11, 13, 15, 18, provides in pertinent part:
Q. Are you familiar with Ms. Walton?
A. No, I can't recall her, but I'm sure I knew her.
. . .
Q. All right. Do you remember where you may have been,
wherever it was, when you signed that document?
A. I presume at the Church of Christ at Caney. She
probably come to church and asked me to sign it, I
suppose, now, but I don't know that, positive.
. . .
Q. Okay. Do you have any remembrance, as you sit her
today, of Sadie Walton being there in the same place with
you when you signed that document?
A. I don't have any recollection of it.
. . .
Q. . . . Do you recall Ms. Speers declaring or saying out of
her mouth, words of her mouth, that "This is my will"?
A. I can't recall that.
. . .
Q. And Vicky Thomas, the notary, wasn't there, either was
she?
A. I couldn't say. I don't know.
. . .
Q. . . . [D]o you remember seeing anybody place those
initials in the lower right-hand corner of each page of that
document that's marked Petitioner's 1?
A. No. . . .
4 Testimony of Walter Francis Durbin, see note 2, supra at
9.
5 A photocopy of an executed will that has itself been
executed by the testatrix and the witnesses is of equal force
as its executed counterpart. In re. Estate of Shaw, 1977 OK
237, ¶25, 572 P.2d 229; In re. Estate of Goodwin, 2000
OK CIV APP 147, ¶9, 18 P.3d 373.
6 In re. Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; In
re. Estate of Wilder, 1976 OK 113, ¶7, 554 P.2d 788;
Peace v. Peace, 1931 OK 293, ¶0, 299 P. 451.
7 In re. Estate of Holcomb, see note 6, supra; In re. Estate
of Beal, 1989 OK 23, ¶5, 769 P.2d 150; In re. Estate of
Hess, 1962 OK 74, ¶18, 379 P.2d 851.
8 In re. Stock's Will, 1935 OK 662, ¶14, 49 P.2d 503; In
re. Thomason's Estate, 1925 OK 369, ¶9, 241 P. 739; In re.
Will of Stires, 1923 OK 764, ¶0, 219 P. 695.
9 In re. Estate of Holcomb, see note 6, supra; In re. Estate
of Maheras, 1995 OK 40, ¶7, 897 P.2d 268.
10 In re. Estate of Holcomb, see note 6, supra.
11 In re. Estate of Holcomb, see note 6, supra; In re. Estate
of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111; Miller v. First
Nat. Bank & Trust Co., 1981 OK 133, ¶8, 637 P.2d 75.
12 In re. Free's Estate, 1937 OK 708, ¶0, 75 P.2d 476; In
re. Elrod's Estate, 1931 OK 603, ¶0, 6 P.2d 676; In re.
Son-Se-Gra's Will, 1920 OK 121, ¶5, 189 P. 865.
13 Title 84 O.S. Supp. 2004 §55 provides in pertinent part:
Every will, other than a nuncupative will, must be in
writing; and every will, other than a holographic will and a
nuncupative will, must be executed and attested as follows:
1. It must be subscribed at the end thereof by the testator
himself, or some person, in his presence and by his
direction, must subscribe his name thereto.
2. The subscription must be made in the presence of the
attesting witnesses, or be acknowledged by the testator to
them, to have been made by him or by his authority.
3. The testator must, at the time of subscribing or
acknowledging the same, declare to the attesting witnesses
that the instrument is his will.
4. There must be two attesting witnesses, each of whom
must sign his name as a witness at the end of the will at the
testator's request and in his presence.
5. Every will, other than a holographic and a nuncupative
will, and every codicil to such will or to a holographic will
may, at the time of execution or at any subsequent date
during the lifetimes of the testator and the witnesses, be
made self-proved, and the testimony of the witnesses in the
probate thereof may be made unnecessary by:
a. the acknowledgment thereof by the testator and the
79
affidavits of the attesting witnesses, each made before an
officer authorized to take acknowledgments to deeds of
conveyance and to administer oaths under the laws of this
state, such acknowledgments and affidavits being
evidenced by the certificate, with official seal affixed, of
such officer attached or annexed to such testamentary
instrument . . . . [Emphasis added.]
14 The contestants have also alleged that the handwritten
strikeouts and interlineations operate to revoke the
instrument as a will. Any handwritten codicil must conform
to the requirements for holographic wills. Because none of
the handwritten changes to the will were signed or dated,
the changes are not valid codicils. 84 O.S. 2001 §54.
A will may be revoked by physical act only if there is a
physical act within the meaning of the statute, and if the act
is performed within the intent and purpose to revoke. In re.
Estate of Ausley, 1991 OK 105, ¶13, 818 P.2d 1226; In re.
Cabler's Estate, 1927 OK 126, ¶11, 257 P. 757. A mere
interlineation in a will after its execution is not a
revocation, where nothing was added to or taken from the
meaning and no intent to revoke was thereby indicated. In
re. Ballard's Estate, 1916 OK 271, ¶0, 155 P. 894. There
was no showing by either party that the testatrix intended to
revoke the will or that the testatrix, or someone she
directed, wrote the strikeouts or interlineations, so there
cannot be a revocation. Because the handwritten portions
of the will do not constitute valid codicils or a revocation,
they must be disregarded.
15 In re. Estate of Bogan, 1975 OK 134, ¶14, 541 P.2d
854.
16 In re. Estate of Johnson, 1989 OK 98, ¶10, 780 P.2d
692.
17 Testimony of Walter Francis Durbin, see note 2, supra
at 8.
18 Evidence of Walton's death was readily available to the
appellee. A quick search of the Social Security Death Index
shows that Walton died on August 15, 2000 and that her
last place of residence was Atoka, Oklahoma.
http://ssdi.rootsweb.com/cgi-bin/ssdi.cgi.
19 In Midland Valley R. Co. v. Barnes, 1933 OK 26, ¶5,
18 P.2d 1089, the Court, quoting a Tennessee case,
discussed whether a jury is to be satisfied whether evidence
does or does not preponderate and examined the words
"satisfy" and "satisfactory evidence." In Board of Com'rs of
Garfield County v. Anderson, 1934 OK 6, ¶46, 29 P.2d 75,
the Court described a requirement that intent be
satisfactorily shown as that which is clear and unequivocal.
"Satisfactory evidence" has been described as that evidence
which ordinarily produces moral certainty or conviction in
an unprejudiced mind, such as ordinarily satisfies such a
mind beyond a reasonable doubt. Shriver v. Union
Stockyards Nat. Bank, 232 P. 1062, 1066 (Kan. 1925).
Whatever "satisfactorily shown" is, it must be more than
one witness' testimony that he couldn't recall the other
witness, that he had been told she was deceased, and that
he wasn't sure she was present when he signed the will.
20 Testimony of Walter Francis Durbin, see ¶4.
21 The contestants' counsel did not object to Durbin's
testimony that he had been told that Walton was deceased.
Title 12 O.S. 2001 §2104 provides in pertinent part:
A. Error may not be predicated upon a ruling which admits
or excludes evidence unless a substantial right of a party is
affected, and:
1. If the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not
apparent from the context
. . .
D. Nothing in this section precludes taking notice of plain
errors affecting substantial rights although they were not
brought to the attention of the court.
In United States v. Adkinson, 297 U.S. 157, 160, 56 S.Ct.
391, 80 L.Ed. 555 (1936), the United States Supreme Court
has held: "In exceptional circumstances, especially in
criminal cases, appellate courts, in the public interest, may,
of their own motion, notice errors to which no exception
has been taken, if the errors are obvious, or if they
otherwise seriously affect the fairness, integrity or public
reputation of judicial proceedings." The doctrine of plain
error is rarely applied in civil cases and usually reserved to
prevent a clear miscarriage of justice. Chestnut v. City of
Lowell, 305 F.3d 18, 20 (1st Cir. 2002); Crawford v.
Falcon Drilling Co., Inc., 131 F.3d 1120, 1123 fn. 3 (7th
Cir. 1997); Polys v. Trans-Colorado Airlines, Inc., 941
F.2d 1404, 1408 fn. 5 (10th Cir. 1991).
Here, we need not reach the question of whether the trial
court's admission of Durbin's testimony was plain error.
Even if the testimony was properly admissible evidence,
the trial court's determination that there were two
subscribing witnesses was clearly contrary to the weight of
the evidence.
22 In re. Stover's Will, 1924 OK 917, ¶7, 231 P. 212; Hill
v. Davis, 1917 OK 340, ¶7, 167 P. 465 [overrruled on
other grounds in In re. Nitey's Estate, 1935 OK 1218, ¶27,
53 P.2d 215]; In re. Estate of Mowdy, 1999 OK CIV APP
4, ¶17, 973 P.2d 345.
23 In re. Estate of Hering, 1967 OK 82, ¶0, 426 P.2d 685;
Speaks v. Speaks, 1923 OK 404, ¶0, 224 P. 533; In re.
Estate of Mowdy, see note 22, supra.
80
24 Testimony of Walter Francis Durbin, see note 2, supra.
25 n re. Estate of Weber, 1970 OK 131, ¶14, 471 P.2d 919;
Goff v. Knight, 1949 OK 118, ¶0, 206 P.2d 992.
26 Hobbs v. Mahoney, 1970 OK 209, ¶12, 478 P.2d 956;
Goff v. Knight, see note 25, supra at ¶13. Title 84 O.S.
2001 §145 addresses subscribing witnesses made
unavailable by reason of incompetency. It provides:
If the subscribing witnesses to a will are competent at the
time of attesting its execution, their subsequent
incompetency, from whatever cause it may arise, does not
prevent the probate and allowance of the will, if it is
otherwise satisfactorily proved.
Several other jurisdictions also permit the execution of will
to be established without the testimony of one or both of
the subscribing witnesses, but most require the proponent
to establish execution by some other method of proof. In re.
Will of McCauley, 565 S.E.2d 88, 92 (N.C. 2002) [if
witnesses are unavailable or have no memory of the event,
execution may be established by other credible evidence];
Upton v. Upton, 759 S.W.2d 811, 813 (Ark. Ct. App.
1988) [presumption of due execution if witness'
handwriting matches]; In re. Estate of Nelson, 447 A.2d
438, 439 (Del. 1982) [if unavailable witness, execution
may be established by other means]; Modlin v. Riggle, 399
N.E.2d 767, 770 (Ind. Ct. App. 1980) [if witnesses
unavailable, execution may be proven by handwriting per
statute]; Ross v. Carlino, 399 A.2d 292, 296 (N.H. 1979)
[if witness is found to be unavailable after a hearing on the
subject, execution may be proven by other satisfactory
evidence]; Walpole v. Lewis, 492 S.W.2d 410, 413 (Ark.
1973) [execution may be established without either witness
as long as there is some other admissible evidence].
But see Estate of Burdette, 81 Cal.App.4th 938, 945 (Cal.
Ct. App. 2000) [if one witness is unavailable, the proper
testimony of the other witness is sufficient to prove
execution]; Gardner v. Balboni, 588 A.2d 634, 640 (Conn.
1991) [attestation clause enough to prove execution when
witness unavailable]; In re. Estate of Collins, 458 N.E.2d
797, 799 (N.Y. 1983) [even if witnesses can't remember, if
attestation clause appears proper, presumption of proper
execution]; Culver v. King, 362 So.2d 221, 223 (Ala.
1978) [statutes do not require the testimony of all
subscribing witnesses to establish execution].
27 In re. Stover's Will, see note 22, supra at ¶6.
------------------------------------------------------------------------
--------
REIF, J., dissenting, with whom Winchester, C.J., and
Taylor, J., join.
¶1 I believe the majority opinion reflects an overly strict
view of the requirements for admission of a will to probate,
and an unduly critical view of the evidence presented in
this case. In particular, I disagree with the majority
conclusion that the absence of subscribing witness Sadie B.
Walton at trial was not "satisfactorily shown." I believe the
majority conclusion in this regard is based on an incorrect
interpretation of the term "satisfactorily shown" and the out
of hand rejection of hearsay evidence on this point that was
received without objection.
¶2 In determining whether the absence of a subscribing
witness was "satisfactorily shown," I do not believe the
legislature was requiring "an amount of proof which will
ordinarily satisfy an unprejudiced mind beyond a
reasonable doubt," as the majority suggests. I believe the
legislature used "satisfactorily shown" in the more liberal
sense of a showing "adequate and sufficient to convince a
reasonable person." See Central Mutual Insurance Co. of
Chicago v. St. Paul Mercury Indemnity Co. of St. Paul. 9
N.E.2d 355, 356 (Ill. Ct. App. 1937). One court has said
that a requirement that a fact must be made to appear "to
the satisfaction of the court" goes to "the quieting of the
mind of the judge [and] the freedom to act according to
one's judgment." State v. Chapman. 47 N.W. 411, 412
(S.D. 1890).
¶3 In the case at hand, the unobjected hearsay statement of
subscribing witness Walter Durbin (that he was told Sadie
Walton had died), was adequate and sufficient to convince
a reasonable person that there was good reason for her
"absence" as a witness at trial. It was also sufficient to quiet
the mind of the trial judge on this issue and give him
freedom to act according to his judgment in allowing only
one subscribing witness to prove the will. Accordingly, I
strongly disagree with the majority holding that "the trial
court could not, as a matter of law, have made the requisite
statutory finding that Walton's absence or death was
'satisfactorily shown.'"
¶4 I likewise disagree with the majority's view of Mr.
Durbin's testimony concerning the execution of the will. It
is simply unrealistic to expect Mr. Durbin to remember
every detail concerning the execution of a will that took
place over 20 years prior to his testimony.
¶5 It is important to keep in mind that Mr. Durbin's
testimony was given with reference to the copy of the will
that was offered for probate. He testified that he did
remember signing the original and seeing Mrs. Speers sign
the original. He also remembered Mrs. Speers wanted him
to witness the will and telling her he would. While he
cannot remember Sadie Walton, or whether she and the
notary were present and also signed, the copy of the will
81
reflects the signature of "Sadie B. Walton" in association
with the status of "witness," and the signature "Vicky
Thomas" on the line titled "Notary Public."
¶6 On cross-examination by contestants' counsel, Mr.
Durbin testified without objection that he presumed Sadie
Walton and notary Vicky Thomas were present by virtue of
their signatures on the will. This common sense connection
made by Mr. Durbin reflects an inference that could
certainly be drawn by the trial court as well. In the final
analysis, there is simply nothing in the record to suggest
that will was not duly executed as it appears to have been.1
¶7 The copy of the will itself, along with the details Mr.
Durbin could remember, supports the trial court's
conclusion that the will was duly executed. It is well settled
"[s]ubstantial, not strict, compliance is required for proper
attestation, publication and acknowledgment of a will
under §55... Substantial compliance is satisfied if the
testator, by words or conduct, informs the witnesses the
instrument is his will and wishes them to sign it." In re
Estate of Mowdy, 1999 OK CIV APP 4, ¶17, 973 P.2d
345, 350.
¶8 For the foregoing reasons, I respectfully dissent from the
majority opinion. I would withdraw certiorari as
improvidently granted and deny certiorari.
FOOTNOTES
1 The copy of the will offered for probate does contain
certain handwritten changes in some contingent bequests.
To be sure, the presence of handwritten changes on a will
or copy of a will can cast doubt on the due execution of the
will. However, in the case at hand, the handwritten changes
have no bearing on the issue of due execution in light of
Mr. Durbin's testimony that the original will "was a
three-page typewritten document when she brought it to
me... [w]ith no markings on it." Even assuming that Mrs.
Speers later tried to indicate a different testamentary intent
with respect to the contingent bequests, the handwritten
changes did not purport to revoke or otherwise affect her
general testamentary intent that Ralph Speers receive all of
her estate. More importantly, the handwritten changes were
not sufficient to revoke the will, as the Court of Civil
Appeals noted in its opinion.
82