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.

Titles 6-46 3

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

Titles 6-46 5

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

Titles 6-46 6

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

Titles 6-46 7

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.

Title 58 8

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

Title 58 9

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

Title 60 30

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

Title 60 33

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

Title 60 36

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;

Title 60 39

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

Title 60 40

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

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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