Chapter 112

      112.015

NOTES OF DECISIONS

      Disinheritance clause in will does not, by itself, constitute disposition of property for purpose of avoiding intestate succession by disinherited person. McClain v. Hardy, 184 Or App 448, 56 P3d 501 (2002)

      112.025

NOTES OF DECISIONS

      Where decedent’s marriage voided his previous will and undue influence voided his only subsequent will, division of decedent’s property is governed by rules of intestacy. McKee v. Stoddard, 98 Or App 514, 780 P2d 736 (1989), Sup Ct review denied

LAW REVIEW CITATIONS: 57 OLR 135 (1977)

      112.035

LAW REVIEW CITATIONS: 57 OLR 135 (1977)

      112.045

NOTES OF DECISIONS

      Where personal representative filed misleading petition alleging that decedent died intestate, and he had personal interest in having estate pass by intestate distribution under this section, he was not entitled to any compensation. Reynolds v. Givens, 37 Or App 785, 588 P2d 113 (1978)

      112.105

NOTES OF DECISIONS

      Under Oregon law, surviving child may establish right to inherit in proceeding for social security benefits without having first had paternity established in independent state paternity suit. Zahradnik v. Sullivan, 966 F2d 355 (1992)

      112.225

NOTES OF DECISIONS

Testamentary capacity

      A testator is presumed to have testamentary capacity if the will is executed in due form. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      Competency at the time of making the will is determinative of testamentary capacity. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      Proponent of a will has the burden of proving testamentary capacity. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      Testimony of a subscribing witness which bears on mental competency is entitled to great weight. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      A presumption that the decedent was mentally incompetent does not arise from the appointment of a guardian for him, the presumption only arises where the guardianship is set up because of the ward’s mental incompetence. Whitteberry v. Whitteberry, 9 Or App 154, 496 P2d 240 (1972)

      Under conflicting testimony by attesting witnesses, whether testatrix was mentally competent to execute will was question for trier of fact. Currie v. Price, 31 Or App 141, 570 P2d 81 (1977)

      Evidence, inter alia, that decedent was in hospital in extreme pain, could barely read and hear, and had been treated with strong narcotic, established that she lacked testamentary capacity at time codicil was executed. Hunt v. Galton, 37 Or App 811, 588 P2d 125 (1978), Sup Ct review denied

Fraud and undue influence

      The law will not permit improper influences to control the disposition of a person’s property. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      The burden of showing the exercise of undue influence at the time of making the will is upon the contestant. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      A disputable presumption of undue influence arises if a beneficiary who sustains to the testator a confidential relationship participates in drafting the will. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      Reasonable solicitations, without more, do not constitute undue influence. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      Influence arising from gratitude, affection or esteem is not undue. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

      112.227

NOTES OF DECISIONS

      Will contestant must show that no-contest provision is either unlawful or in contravention of some specific public policy or it will be enforced. Larson v. Naslund, 73 Or App 699, 700 P2d 276 (1985)

      112.235

NOTES OF DECISIONS

      To fulfill formal will requirements both witnesses must sign will before death of testator. Rogers v. Rogers, 71 Or App 133, 691 P2d 114 (1984), Sup Ct review denied

      Will is not executed when testator signs will unless that act is done in presence of witnesses and witnesses then attest will. Perry v. Adams, 112 Or App 77, 827 P2d 930 (1992)

      Testator’s statement in will that signing was at testator’s direction, followed by signature indicating representational capacity of signer, fulfilled requirement that signer write on will that signer acted at direction of testator. Walker v. Walker, 145 Or App 144, 929 P2d 316 (1996), Sup Ct review denied

      Requirement that will be acknowledged in presence of witnesses requires that document be before witnesses at time of testator’s acknowledgement. Kirkeby v. Covenant House, 157 Or App 309, 970 P2d 241 (1998), Sup Ct review denied

LAW REVIEW CITATIONS: 95 OLR 337 (2017)

      112.238

NOTES OF DECISIONS

      Noncompliant will may be probated if clear and convincing evidence exists that decedent intended it to be decedent’s will, which requires examining intent of decedent at time of writing, not merely presentation of noncompliant will and authenticated signature. Culver v. Deaver, 297 Or App 21, 441 P3d 633 (2019)

LAW REVIEW CITATIONS: 95 OLR 337 (2017)

      112.255

NOTES OF DECISIONS

      Proponent’s evidence was insufficient to establish that handwritten document purporting to be decedent’s last will was holographic will under California law, where decedent did not execute document in California and did not intend document to be his last will but only draft since he had handwritten document typed out and notarized, kept typed copy and discarded handwritten copy. Estate of Whitlatch v. Richardson, 99 Or App 548, 783 P2d 46 (1989)

      112.270

NOTES OF DECISIONS

      Where exhibits evidenced decedent’s intent that plaintiff receive his property, but made no reference to an underlying agreement between them to devise, such evidence did not meet requirements of this section of a “writing signed by the decedent evidencing the contract”. Richardson v. Richardson, 58 Or App 338, 648 P2d 377 (1982), Sup Ct review denied

      Person seeking specific performance of contract to make mutual reciprocal wills, entered into before effective date of ORS 112.270, must show it is much more probable than not that parties understood survivor’s will to be irrevocable. Willbanks v. Goodwin, 300 Or 181, 709 P2d 213 (1985)

      This section establishes means of proving contract to make will but does not govern when such contracts may be enforced and thus plaintiff could bring action during life of “testator.” Dickie v. Dickie, 95 Or App 310, 769 P2d 225 (1989), Sup Ct review denied

      112.285

NOTES OF DECISIONS

      Where all of dispositive provisions of will were defaced with exception of insignificant bequest, will was sufficiently “mutilated” to give rise to presumption that testatrix mutilated it with intent to revoke. Brune v. Oregon State Bd. of Higher Education, 44 Or App 449, 605 P2d 647 (1980), Sup Ct review denied

      112.305

NOTES OF DECISIONS

      Where husband, in process of dissolving marriage, made will that did not contemplate remarriage and did not indicate intent that it survive remarriage and husband, before remarriage, did not make agreement creating exception to revocation under this section, will was revoked by remarriage. Stevenson v. U.S. National Bank, 72 Or App 39, 695 P2d 77 (1985), Sup Ct review denied

      Validity of voidable marriage could not be attacked in probate proceeding. Werden v. Thorpe, 126 Or App 97, 867 P2d 557 (1994), Sup Ct review denied

      112.315

NOTES OF DECISIONS

      Revocation of will by operation of law is absolute, and repeal of statute which effected the revocation does not revive the will. Butte v. Crohn, 8 Or App 284, 494 P2d 258 (1972)

      In action seeking revocation of will by operation of law for divorce, where decedent became Oregon domiciliary after divorce, this section, in effect while decedent was domiciled in Oregon, was applicable rather than former statute in effect at time of divorce. King v. Davidson, 39 Or App 239, 592 P2d 231 (1979), Sup Ct review denied

      112.400

NOTES OF DECISIONS

      Section was not retroactive as to will executed prior to section’s effective date. Schmidt v. First National Bank, 31 Or App 455, 570 P2d 981 (1977)

      112.515

NOTES OF DECISIONS

      Where life insurance policy is provided as part of employee benefit plan, this section is subject to federal preemption under ERISA and does not prevent beneficiaries who killed insured from collecting on life insurance policy. Herinckx v. Sanelle, 281 Or App 869, 385 P3d 1190 (2016)

      112.685

NOTES OF DECISIONS

      Heirs cannot require a widow occupying land of which her husband died seised to pay rent unless they impose rent as a condition of her occupancy or until they demand she vacate. Ferguson v. Vance, 263 Or 636, 503 P2d 706 (1972)

      A widow’s occupation of land of which her husband died seised need not be with the children or heirs, but she can occupy the premises only so long as the heirs or others interested do not object. Ferguson v. Vance, 263 Or 636, 503 P2d 706 (1972)

LAW REVIEW CITATIONS: 53 OLR 205 (1974); 57 OLR 135 (1977)

      112.705 to 112.775

LAW REVIEW CITATIONS: 53 OLR 209 (1974)

      112.735

LAW REVIEW CITATIONS: 53 OLR 208 (1974)