7-8 page research paper on the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)

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Saint Leo University

GBA 231 Business Law I

Course Description: The U.S legal system (constitutional framework), the judicial system, the administrative agency system, the legal theory of the organization (agency law, forms of organization), an organization’s legal obligations (torts, contracts, common law, and the Uniform Commercial Code), and public law (employment, securities, antitrust, consumer and environmental protection) are reviewed.

Prerequisite: ENG 122

Textbooks: The textbook information which appears on our Saint Leo Bookstore ordering site is as follows: Business Law (Custom) (0232, 2048). ISBN: 9780134735207

Your custom textbook was created from the following National text(s): Business Law: Cheeseman, H. R. (2019). Business law: legal environment, online commerce, business ethics, and international issues (10th ed.). Boston: Pearson. ISBN: 9780134729060

Term Paper:

Review all materials in Chapter 52 and conduct research on the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). The full text of this case, along with numerous case briefs, commentaries, summaries, etc., may be found by simply entering the full name of the case into any major online search engine of your choosing. Alternatively, you may use Westlaw, Lexis or any other professional legal research databank in your research, however, use of such is not required. Following your research, review the following questions:

• What was the ultimate numerical vote of the court? • When and how can life support be withdrawn? • How does death by refusal of treatment differ from suicide? • How does a living will work and when does it become of legal effect? • What is a health care directive and how does it work?

After completing your research, summarize your answers, and, along with any other sources, if any, address and support your particular position/view on the following specific issues, and, specifically, how you would apply the Saint Leo University Core Values of Community, Respect, and Integrity into your actions. Be sure to use proper APA format for citations.

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1. What are the potential foreseeable financial, psychological, and medical, yet unintended, harmful consequences to one’s family and friends in failing to provide a properly executed will and living will prior to one’s final illness and death?

2. What are the fundamental distinctions between recuperative medical care and palliative care? Who should be included in the decision to modify care from recuperative to palliative? When, if ever, is the right to refuse any and all medical care appropriate when such virtually ensures the death of the patient?

3. What professionals, medical or otherwise, should be involved in advising decisions concerning end-of- life wishes? How does euthanasia differ from a simple cessation of treatment? Who should make end of life decisions for those who are without a family member to take on such a role?

4. What measures can be taken to ensure the quality of ongoing family and social relationships, individually and as a group, to end-of-life patients? What pitfalls are to be avoided in ensuring maintenance of these relationships? What actions may be taken to ensure the spiritual and existential dimensions of the process are respected and integrated?

You must submit this assignment as a Word document to Chalk and Wire no later than Sunday 11:59 PM EST/EDT. Submit the Term Paper to Chalk and Wire using the link in the Module 8 folder. Students that do not submit the assignment to Chalk and Wire will receive a zero. This is a key program assessment; the results are used to ensure students are meeting program goals. Video and PDF instructions can be found on the course home page. PDF instructions are also located in the Start Here folder.

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Chapter 52 Wills, Trusts, and Estates

Veterans Cemetery The U.S. Congress enacted the National Holiday Act of 1971,1 which made the last day in May Memorial Day, which is a national holiday. Memorial Day is a day of remembrance for veterans of the nation’s military services. I miss my friend, Mark H. Dixon, with whom I served in the U.S. Army, who died while saving a fellow soldier.

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Learning Objectives and Chapter Contents Introduction to Wills, Trusts, and Estates Will

52.1 List and describe the requirements for making a valid will.

Probate

52.2 Describe the process of probating a will.

Testamentary Gifts

52.3 Describe the different types of testamentary gifts.

Intestate Succession

52.4 Identify how property is distributed under intestacy statutes if a person dies without a will.

Irrevocable Trusts

52.5 Define irrevocable trust and describe how an irrevocable trust works.

Special Types of Trusts

52.6 List and describe special forms of trusts.

Living Trust

52.7 Define a living trust and describe how a living trust works.

Undue Influence

52.8 Describe how a will or trust may be found invalid under the doctrine of undue influence.

Living Will and Health Care Directive

52.9 Define a living will and describe why a person would execute a living will and health care directive.

Contemporary Environment Right to Die

“When you have told someone you have left him a legacy, the only decent thing to do is to die at once.” —Samuel Butler (1835–1902)

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Introduction to Wills, Trusts, and Estates Disinherit: The prankish action of the ghosts in cutting the pockets out of trousers.

Frank McKinney Hubbard

The Roycroft Dictionary (1923)

Wills and trusts are means of transferring property. Wills transfer property on a person’s death. They permit people to state exactly where they want their property to go when they die. If a person dies intestate—that is, without a will—the deceased’s property is distributed to relatives as provided in the state statute. The property escheats (goes) to the state if there are no relatives.

Trusts are used to transfer property that is to be held and managed for the benefit of another person or persons. A trust can be created to come into effect during one’s lifetime. Trusts may also be created during one’s lifetime and be worded to become effective only on the trustor’s (or grantor’s) death. A living trust is a special type of trust used for estate planning.

A living will and health care directive can be created by an individual. A living will sets forth a person’s instructions regarding emergency medical treatment and whether to be kept alive on life support systems. A health care directive names an individual or individuals who can make health care decisions if the maker of the directive is unable to do so.

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Will 52.1 List and describe the requirements for making a valid will. A will is a declaration of how a person wants his or her property to be distributed at death. It is a testamentary deposition of property. The person who makes a will is called a testator (if male) or testatrix (if female). Some states use the designation testator for both male and female persons. The persons designated in the will to receive the testator’s property are called beneficiaries (see Exhibit 52.1). Exhibit 52.1 Parties To A Will

Figure 52.1 Full Alternative Text

Requirements for Making a Will Every state has a Statute of Wills that establishes the requirements for making a valid will in that state. These requirements are the following:

5 • Testamentary capacity. The testator must have been of legal age and “sound mind” when the will was made.

The courts determine testamentary capacity on a case-by-case basis. The legal age for executing a will is set by state statute.

• Writing. Wills must be in writing to be valid (except for dying declarations, discussed later in this chapter). The writing may be formal or informal. Although most wills are typewritten, they can be handwritten (see the later discussion of holographic wills). The writing may be on legal paper, other paper, scratch paper, envelopes, napkins, or the like. A will may incorporate other documents by reference.

Say not you know another entirely till you have divided an inheritance with him. Johann Kaspar Lavater (1741–1801)

• Testator’s or testatrix’s signature. Wills must be signed. Most jurisdictions require the testator’s signature or testatrix’s signature to appear at the end of the will. This step is to prevent fraud that could occur if someone added provisions to the will below the testator’s signature.

Example Courts have held that initials (R.K.H.), a nickname (Buffy), title (mother), and even an X is a valid signature on a will if it can be proven that the testator intended it to be his or her signature.

Attestation by Witnesses Wills must be attested to by mentally competent witnesses. Although state law varies, most states require attestation by 2 or 3 witnesses. The witnesses do not have to reside in the jurisdiction in which the testator is domiciled. Most jurisdictions stipulate that interested parties (e.g., a beneficiary under the will, the testator’s attorney) cannot be witnesses. If an interested party has attested to a will, state law voids either any clauses that benefit such person or voids the entire will. Witnesses usually sign a will following the signature of the testator. These signatures are called the attestation clause. Most jurisdictions require that each witness attest to the will in the presence of the other witnesses. A will that meets the requirements of the Statute of Wills is called a formal will. A sample will is shown in Exhibit 52.2

Exhibit 52.2 Will

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Figure 52.2 Full Alternative Text

Codicil A will cannot be amended by merely striking out existing provisions on the will and adding new provisions on the will itself. Preparing a codicil is the legal way to change an existing will. A codicil is a separate document that contains provisions that amend a will. The codicil must be executed with the same formalities as a will. In addition, it must incorporate by reference the will it is amending. The codicil and the will are then read as 1 instrument.

Revoking a Will A will may be revoked by acts of the testator. Revocation of a will occurs if the testator intentionally tears, burns, obliterates, or otherwise destroys it. A properly executed subsequent willrevokes a prior will. Wills can also be revoked by operation of law. For example, divorce or annulment revokes disposition of property to the former spouse under a will. The remainder of the will is valid. The birth of a child after a will has been executed does not revoke the will but does entitle the child to receive a share of a parent’s estate, as determined by state statute.

Joint and Mutual Wills If 2 or more testators execute the same instrument as their will, the document is called a joint will. Each party bequeaths property to the other person. A joint will includes a stipulation for how the property is to be distributed when the second person dies. A joint will is an enforceable contract. The second party cannot change the will once the first person dies (e.g., disinherit the named beneficiaries or change beneficiaries). Both parties must agree to revoke a joint will.

Special Types of Wills The law recognizes several types of wills that do not meet all the requirements discussed previously. The special types of wills admitted by the courts include the following:

• Holographic wills. Holographic wills are entirely handwritten and signed by the testator. The writing may be in ink, pencil, crayon, or some other medium. Many states recognize the validity of such wills even though they are not witnessed.

• Nuncupative wills. Nuncupative wills are oral wills that are made before witnesses. Such wills are usually valid only if they are made during the testator’s last illness and before he or she is about to die. They are sometimes called dying declarations, or deathbed wills.

Simultaneous Deaths Sometimes people who would inherit property from each other die simultaneously. If it is impossible to determine who died first, the question becomes one of inheritance. The Uniform Simultaneous Death Act, a

7 model act adopted by many states, provides that each deceased person’s property is distributed as though that person had survived. Example A husband and wife make wills that leave their entire estate to each other. The husband and wife are killed simultaneously in an airplane crash. Here, the husband’s property would go to his relatives, and the wife’s property would go to her relatives.

Probate 52.2 Describe the process of probating a will. When a person dies, his or her property must be collected, debts and taxes paid, and the remainder of the estate distributed to the beneficiaries of the will or the heirs under the state intestacy statute. This process is called probate, or settlement of the estate. The process and procedures for settling an estate are governed by state statute. A specialized state court, called the probate court, usually supervises the administration and settlement of estates. A personal representative must be appointed to administer an estate during its settlement phase. If a testator’s will designates a personal representative, that person is called an executor(male) or executrix (female). If no one is named or if the decedent dies intestate, the court appoints an administrator (male) or administratrix (female). Some states use the designations executor and administrator whether the representative is a male or female. This party is usually a relative of the deceased or a bank. An attorney is often appointed to help administer the estate and to complete the probate.

Testamentary Gifts 52.3 Describe the different types of testamentary gifts.

A gift of real estate by will is called a devise. A gift of personal property by will is called a bequest, or legacy. Gifts in wills can be specific, general, or residuary: • Specific gift. Specific gifts in a will are gifts of specifically named pieces of property.

Example A gift of a ring, a boat, or a piece of real estate in a will is a specific gift. • General gift. General gifts are gifts that do not identify the specific property from which the gift is to be

made. These are gifts of an amount of money.

Example A gift of $100,000 to a named beneficiary is an example of a general gift. The cash can come from any source in the decedent’s estate.

• Residuary gift. Residuary gifts are gifts that are established by a residuary clause in a will. This means that any portion of the estate left after the debts, taxes, and specific and general gifts have been paid belongs to the person or persons named in the residuary clause. Some wills contain only a residuary gift and do not contain specific or general gifts.

Example A clause in a will that states, “I give my daughter the rest, remainder, and residual of my estate” is an example of a residuary gift.

8 A person who inherits property under a will or an intestacy statute takes the property subject to all the outstanding claims against it (e.g., liens, mortgages). A person can renounce an inheritance and often does where the liens or mortgages against the property exceed the value of the property.

Lineal Descendants A testator’s will often states that property is to be left to lineal descendants (e.g., children, grandchildren, great-grandchildren) either per stirpes or per capita. The differences between these 2 methods are discussed in the following paragraphs.

Per Stirpes Distribution to Lineal Descendants Pursuant to per stirpes distribution, the lineal descendants inherit by representation of their parent; that is, they split what their deceased parent would have received. If their parent is not deceased, they receive nothing. Example Anne dies without a surviving spouse, and she had 3 children, Bart, Beth, and Bruce. Bart, who survives his mother, has no children. Beth has 1 child, Carla, and Carla has 1 child, Donovan, and they all survive Anne. Bruce, who predeceased his mother, had 2 children, Clayton and Cathy; and Cathy, who predeceased Anne, had 2 children, Deborah and Dominic, both of whom survive Anne. If Anne leaves her estate to her lineal descendants per stirpes, Bart and Beth each get one-third, Carla receives nothing because Beth is alive, Donovan receives nothing because both Beth and Carla are alive, Clayton gets one-sixth, and Deborah and Dominic each get one-twelfth. See Exhibit 52.3. Exhibit 52.3 Per Stirpes Distribution To Lineal Descendants

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Per Capita Distribution to Lineal Descendants Pursuant to per capita distribution, the lineal descendants equally share the property of the estate. That is, children of the testator share equally with grandchildren, great-grandchildren, and so forth. Example Suppose the facts are the same as in the previous example, except that Anne leaves her estate to her lineal descendants per capita. In this case, all the surviving lineal descendants—Bart, Beth, Carla, Clayton, Donovan, Deborah, and Dominic—share equally in the estate. That is, they each get one-seventh of Anne’s estate. See Exhibit 52.4. Exhibit 52.4 Per Capita Distribution To Lineal Descendants

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Ademption If a testator leaves a specific gift of property to a beneficiary but the property is no longer in the estate of the testator when he or she dies, the beneficiary receives nothing. This doctrine is called the doctrine of ademption. Example A testator leaves his primary house, worth $1 million, to his son in his will and leaves the remainder of his estate (which is worth $1 million at the signing of the will) to his daughter. Several years before dying, the testator sells his house for $1 million and places the money in a bank. When the testator dies, his estate is worth $2 million, which includes the $1 million in the bank that is the proceeds of the sale of the house. Here, because of ademption—the testator does not own the house when he dies—the son receives nothing. The daughter receives the testator’s entire $2 million estate

Abatement If a testator’s estate is not large enough to pay all the devises and bequests, the doctrine of abatement applies. The doctrine works as follows: • If a will provides for both general and residuary gifts, the residuary gifts are abated first.

Examples A testator executes a will when he owns $500,000 of property that leaves (1) $100,000 to the Red Cross, (2) $100,000 to a university, and (3) the residual to his niece. If the testator dies with this $500,000 estate, the Red Cross and the university would each receive $100,000, and the niece would receive $300,000. However, if when the testator dies, his estate is worth only $225,000, the Red Cross, and the university would each receive $100,000, and the niece would receive $25,000.

• If a will provides only for general gifts, the reductions are proportionate.

Examples A will bequests $200,000 to each of 2 beneficiaries. However, when the testator dies, his estate is worth only $100,000. Here, each beneficiary will receive $50,000.

Intestate Succession 52.4 Identify how property is distributed under intestacy statutes if a person dies without a will. If a person dies without a will or trust—that is, intestate—or if a will or trust fails for some legal reason, the property is distributed to relatives pursuant to a state’s intestacy statute. Relatives who receive property under intestacy statutes are called heirs. Although intestacy statutes differ from state to state, the general rule is that the deceased’s real property is distributed according to the intestacy statute of the state where the real property is located, and the deceased’s personal property is distributed according to the intestacy statute of the state where the deceased had permanent residence. Intestacy statutes usually leave the deceased’s property to the heirs in this order: spouse, children, lineal heirs (e.g., grandchildren, parents, brothers and sisters), collateral heirs (e.g., aunts, uncles, nieces, nephews), and other next of kin (e.g., cousins).

If the deceased has no surviving relatives, then the deceased’s property escheats (goes) to the state. In-laws do not inherit under most intestacy statutes.

11 To avoid the distribution of an estate as provided in an intestacy statute, a person should have a properly written, signed, and witnessed will or trust that distributes the estate property as the testator wishes.

Concept Summary Comparison of Dying with and Without a Valid Will

Situation Parties Who Receive Deceased’s Property

Deceased dies with a valid will Beneficiaries named in the will.

Deceased dies without a valid will Heirs set forth in the applicable state intestacy statute. If there are no heirs, the deceased’s property escheats to the state.

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Irrevocable Trusts 52.5 Define irrevocable trust and describe how an irrevocable trust works. A trust is a legal arrangement under which one person (the settlor or trustor) delivers and transfers legal title to property to another person, bank, or other entity (the trustee), to be held and used for the benefit of a third person or entity (the beneficiary). The property and assets held in trust are called the trust corpus, or trust res. The trustee has legal title to the trust corpus, and the beneficiary has equitable title. Unlike wills, trusts are not public documents, so property can be transferred in privacy. An express trust is voluntarily created by the settlor. It is usually written, and the written agreement is called a trust instrument, or trust agreement. A trust is irrevocable unless the settlor reserves the right to revoke it. A trust that cannot be revoked is referred to as an irrevocable trust. Exhibit 52.5 shows the parties to a trust. Exhibit 52.5 Trust

A trust can be created and becomes effective during a trustor’s lifetime or it can be created to become effective on the trustor’s death. During the existence of a trust, the trustee collects money owed to the trust, pays taxes and necessary expenses of the trust, makes investment decisions, pays the income to the income beneficiary, and keeps necessary records of transactions.

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Beneficiaries Trusts often provide that any trust income is to be paid to a person or an entity called the income beneficiary. The person or entity to receive the trust corpus on the termination of the trust is called the remainder beneficiary. The income beneficiary and the remainder beneficiary can be the same person or different persons. The designated beneficiary can be any identifiable person, animal (e.g., a pet), charitable organization, or other institution or cause that the settlor chooses. There can be multiple income and remainder beneficiaries. An entire class of persons—for example, “my grandchildren”—can be named. A trust can allow the trustee to invade (use) the trust corpus for certain purposes. These purposes can be named (e.g., “for the beneficiary’s college education”). The trust agreement usually specifies how the receipts and expenses of the trust are to be divided between the income beneficiary and the remainder beneficiary.

Generally, the trustee has broad management powers over the trust property. Thus, the trustee can invest the trust property to preserve its capital and make it productive. The trustee must follow any restrictions on investments contained in the trust agreement or state statute.

Inter Vivos Trust An inter vivos trust is created and its assets are distributed to the trust while the settlor is alive. The settlor transfers legal title of property to a named trustee to hold, administer, and manage for the benefit of named beneficiaries. The trust can be for a stated period of time (e.g., 10 years) or until some event happens (e.g., the settlor dies). The trust sometimes provides that an income beneficiary will receive income from the trust until the trust ends. The trust provides what will happen to the trust assets when the trust ends, such as being distributed to named beneficiaries. Examples Grandmother places cash, stock, bonds, and an apartment building in a trust while she is alive. She names a bank to administer the trust. Grandmother names her daughter as the income beneficiary of the trust; that is, the trust will pay the daughter interest income from bonds, dividends from stock and profits from the apartment building while the daughter is alive. The trust provides that it will terminate on the death of the daughter. Three of grandmother’s grandchildren are named remainder beneficiaries of the trust with equal shares. If the daughter lives 20 years, the trust terminates at that time, and the assets of the trust are distributed to the grandchildren in equal shares. In this trust arrangement, when the grandmother dies is inconsequential.

Testamentary Trust A testamentary trust is created by will. In other words, the trust comes into existence when the settlor dies. Example Grandfather has a will that provides that when he dies, his estate will be placed in a testamentary trust. Grandfather names a bank to be trustee to administer the trust and invest its assets. The trust provides that when his grandson reaches the age of 25, the trust will terminate, and he will be given legal title to the assets. Grandfather dies when his grandson is age 10. The trust will exist for the next 15 years until the grandson reaches the age of 25. At that time, the trust terminates and the grandson will receive possession and legal title to the assets.

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Special Types of Trust 52.6 List and describe special forms of trusts.

There are several special types of trusts. These are described in the following paragraphs.

Constructive Trust A constructive trust is an equitable trust that is implied by law to avoid fraud, unjust enrichment, and injustice. In constructive trust arrangements, the holder of the title to property (i.e., the trustee) holds the property in trust for its rightful owner. When a constructive trust is imposed, the party who is the implied trustee cannot sell or otherwise transfer ownership to the property or give a mortgage on the property. Example Thad and Kaye are partners. Kaye embezzles partnership funds and uses the stolen funds to purchase a piece of real estate. In this case, the court can impose a constructive trust whereby Kaye (who holds actual title to the land) is considered a trustee who is holding the property in trust for Thad, its rightful owner.

Resulting Trust A resulting trust is implied from the conduct of the parties. Example Henry is purchasing a piece of real estate but cannot attend the closing. He asks his brother, Gregory, to attend the closing and take title to the property until he can return. In this case, Gregory holds the title to the property as trustee for Henry until he returns.

Charitable Trust A charitable trust is created for the benefit of a segment of society or society in general. Example A trust that is created for the construction and maintenance of a public park is an example of a charitable trust.

Spendthrift Trust A spendthrift trust is designed to prevent a beneficiary’s personal creditors from reaching his or her trust interest. All control over the trust is removed from the beneficiary. Personal creditors still can go after trust income that is paid to the beneficiary, however.

Totten Trust A Totten trust is created when a person deposits money in a bank account in his or her own name and holds it as a trustee for the benefit of another person. A Totten trust is a tentative trust because (1) the trustee can add or withdraw funds from the account and (2) the trust can be revoked at any time prior to the trustee’s death or prior to completing delivery of the funds to the beneficiary.

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Living Trust 52.7 Define a living trust and describe how a living trust works.

Living trusts have become a popular means of holding property during a person’s lifetime and distributing the property on that person’s death. A living trust works as follows. During life, a person establishes a living trust, which is a legal entity used for estate planning. A living trust is also referred to as a grantor’s trust, or a revocable trust. The person who creates the trust is called the grantor (or the trustor).

Benefits of a Living Trust The primary purpose of using a living trust is to avoid probate associated with using a will. If a person dies with a will, the will must be probated so that the deceased’s assets can be properly distributed according to the will. A probate judge is named to oversee the probate process, and all documents, including the will, are public record. A living trust, on the other hand, is private. When the grantor dies, the assets are owned by the living trust and are therefore not subject to probate proceedings. In addition, if real property is owned in more than 1 state and a will is used, ancillary probate must be conducted in the other state. If a living trust is used, ancillary probate is avoided. Living trusts are often promoted for claimed benefits that, however, do not exist. The true facts are that a living trust:

• Does not reduce estate taxes any more than a will. • Does not reduce the grantor’s income taxes. All the income earned by the trust is attributed to the grantor,

who must pay income taxes on the earnings just as if the trust did not exist. • Does not avoid creditors. Thus, creditors can obtain liens against property in the trust. • Is subject to property division on divorce. • Is usually not less expensive to create than a will. Both require payments to lawyers and usually to

accountants and other professionals to draft and probate a will or draft and manage a living trust. • Does not avoid controversies on the grantor’s death. Like wills, living trusts can be challenged for lack of

capacity, undue influence, duress, and other legal grounds.

Funding and Operation of a Living Trust To fund a living trust, the grantor transfers title to his or her property to the trust. This property is called the trust corpus. Bank accounts, stock certificates, real estate, personal property, intangible property, and other property owned by the grantor must be retitled to the trust’s name. For example, the grantor must execute deeds transferring title to real estate to the trust. Once property is transferred to the trust, the trust is considered funded. A living trust is revocable during the grantor’s lifetime. Thus, a grantor can later change his or her mind and undo the trust and retake title of the property in his or her own name. A living trust names a trustee who is responsible for maintaining, investing, buying, or selling trust assets. The trustee is usually the grantor. Thus, the grantor who establishes the trust does not lose control of the property placed in the trust and may manage and invest trust assets during his or her lifetime. The trust should name a successor trustee to replace the grantor-trustee if the grantor becomes incapacitated or too ill to manage the trust.

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Beneficiaries A living trust names a beneficiary or beneficiaries who are entitled to receive income from the living trust while it is in existence and to receive the property of the trust when the grantor dies. Usually the grantor is the income beneficiary, who receives the income from the trust during his or her lifetime. On the death of the grantor, assets of the trust are distributed to the remainder beneficiary or beneficiaries named in the trust. The designated trustee has the fiduciary duties of identifying assets, paying creditors, paying income and estate taxes, transferring assets to named beneficiaries, and rendering an accounting.

Undue Influence 52.8 Describe how a will or trust may be found invalid under the doctrine of undue influence. A will or trust may be found to be invalid if it was made because of undue influence on the testator. Undue influence can be inferred from the facts and circumstances surrounding the making of a will or trust. Example If an 85-year-old woman leaves all her property to the lawyer who drafted her will and ignores her blood relatives, the court is likely to presume undue influence.

Undue influence is difficult to prove by direct evidence, but it may be proved by circumstantial evidence. The court considers elements such as the following to determine the presence of undue influence:

• The benefactor and beneficiary are involved in a relationship of confidence and trust. • The will or trust contains substantial benefit to the beneficiary. • The beneficiary caused or assisted in effecting execution of the will or trust. • There was an opportunity to exert influence. • The will or trust contains an unnatural disposition of the testator’s property. • The bequests constitute a change from a former will or trust. • The testator or settlor was highly susceptible to undue influence.

Living Will and Health Care Directive 52.9 Define a living will and describe why a person would execute a living will and health care directive. Technological breakthroughs have greatly increased the life span of human beings. This same technology, however, permits life to be sustained long after a person is “brain dead.” Some people say they have a right to refuse life-extending treatment. Others argue that human life must be preserved at all costs.

In 1990, in Cruzan v. Director, Missouri Department of Health,2 the U.S. Supreme Court ruled that the right to refuse medical treatment is a personal liberty protected by the Due Process Clause of the U.S. Constitution. The Court stated that this interest must be expressed through clear and convincing proof that the patient did not want to be sustained by artificial means.

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Living Will The clear message of the Supreme Court’s opinion in the Cruzan case is that people who do not want their life prolonged indefinitely by artificial means should sign a living will that stipulates their wishes before catastrophe strikes and they become unable to express themselves because of an illness or an accident. The living will should state which lifesaving measures the signor does and does not want. In addition, the signor can specify that any such treatments should be withdrawn if doctors determine that there is no hope of a meaningful recovery. A living will must provide clear and convincing proof of a patient’s wishes with respect to medical treatment.

Health Care Directive Either in a living will or in a separate document, usually called a health care directive, or health care proxy, the maker should name someone, such as a spouse or another relative or trusted party, to be the maker’s health care agent to make all health care decisions in accordance with the wishes outlined in the living will. An alternative person should also be named in case the originally designated health care agent is unable or chooses not to serve in that capacity.

***APA CITATION: Cheeseman, H. R. Business Law. [Bookshelf]. Retrieved from https://full- bookshelf.vitalsource.com/#/books/9780134729046/ ***