by Lawrence R. Barusch
Vol. 12, No. 2 Utah Bar Journal, January 1999, p. 14
It was a dark and stormy night in Drakevale, a place with laws like Utah's, except that traditional per stirpes governs intestacy. Old Scrooge, a creature of immense wealth, lay dying in his rambling mansion. He had been suffering from dementia for many years and now tossed and turned on his bed. Occasionally, he would sit straight up, open his eyes wide, screech "no new taxes, no new taxes," and collapse. Scrooge detested lawyers and had no will.
Scrooge's relatives had gathered to comfort him in his final hours and to be present for the division of his wealth. Scrooge had never married, feeling that a spouse was only a drain on his resources. Nor did he have children, customs in Drakevale differing somewhat from those in Washington D.C. His parents had long since passed away. He had but one sibling, a sister. She, in turn, had a son and daughter. Scrooge's nephew had no children and was lost at sea many years ago. Scrooge's niece had three sons, Huey, Dewey, and Louis. Huey had one son, Tiny Tim. Dewey had eight children, who were so much alike they were referred to as "the Eight." Louis had a daughter, named Little Nell. While visiting Utah one October, Scrooge's sister and niece, along with Huey and Dewey, had been killed in a hunting mishap.
Louis, Tiny Tim, the Eight and Little Nell were preparing for bed at Scrooge's mansion. Little Nell came running from her father's bedroom, tears streaming down her face and announced that her father, Louis, was dead. A wooden stake had been driven through his heart. The police were sent for and shortly Inspector Canard arrived. He examined the Scrooge residence and interviewed the family. Then he summoned an officer and had the Eight arrested, transported to the police station, booked and jailed.
"Why would the eight children of Dewey murder my father?" asked Little Nell.
"Elementary," said Inspector Canard. "Since Scrooge has no will and no longer has the capacity to make one, his wealth will pass by intestacy. Since he has no spouse, issue or parents his wealth will pass to the issue of his parents under our law which is similar to Utah 1. However, Drakevale looks to the first generation of the descendants of Scrooge's parents where there is at least one person who survives Scrooge. Had Louis lived, that would have been his generation. Scrooge's estate would have been divided into as many shares as there were living members of that generation, in this case one for Louis, and members who were dead leaving living issue, in this case two, Huey and Dewey. Thus, the estate would have been divided into thirds. Louis would have received one-third. Huey's one-third would have passed to his son, Tiny Tim. Dewey's one-third would have passed to the Eight, each getting 1/24th. That is the rule of per stirpes, which is unlike Utah's law. However, since no member of Louis's generation survived, we look to the next generation, Tiny Tim, Little Nell and the Eight. Each gets 1/10. By this murder each of the Eight more than doubles his take."
"Those dastardly eight cousins of mine shall not profit by this deed," said Tiny Tim who practiced law in a county adjacent to Drakevale, famous for its fresh water lake. "A killer is treated as predeceasing."
"I'm sorry" said Inspector Canard, "but under our law, which is the same as Utah's 2 a killer is treated as predeceasing with respect to inheritance from his victim. The murder of Louis will not affect the rights of the Eight to inherit from Scrooge. That being the case, Tim, your interest is reduced now from 1/3 to 1/10. I am afraid you've lost 70% of your inheritance."
"God bless us everyone," said Tiny Tim and fainted.
"Oh, if only Uncle Scrooge were domiciled in Utah" said Little Nell who practiced law with a big firm in a big building in downtown Drakevale. "Then, none of this would ever have happened."
"Well" said Inspector Canard, "had Scrooge died intestate in Utah prior to July 1, 1998 you would be right. Utah used to use the principle of representation 3. Scrooge's estate would have been divided into three parts, one for Huey, one for Dewey and one for Louis whether or not any survived. One-third would have gone to Tiny Tim, one-third would have gone to Louis (or Nell if he were dead) and 1/24th would have gone to each of the Eight. However, Utah has changed its law. The legislature seemed bent on eliminating the notion of per stirpes altogether by defining it to mean by right of representation 4. Then the Utah legislature decided that intestacy should no longer be governed by representation, but by a principle known as ?per capita in each generation.' Under this principle you look to the oldest generation with at least one survivor and initially divide the estate into the number of shares equal to the number of living members of that generation and deceased members with then living issue. Thus in Utah, just as in Drakevale, you, Tiny Tim and each of the Eight would get 1/10. Had Louis survived, he would have had his 1/3, just as in Drakevale. However the remaining 2/3 would be divided by a second application of per capita per generation. Thus each of Tiny Tim and the Eight would get 2/3 times 1/9, or 2/27. Even in Utah the Eight would have had quite an incentive to murder Louis, thereby increasing the share of each from 7.4% to 10%."
Inspector Canard was interrupted by a loud rapping on the front door. Startled, Scrooge, sat straight up, squacked "no new taxes, no new taxes," and fell off his bed. Inspector Canard went to his aid.
"I'm sorry," said Inspector Canard, "he's dead."
The front door slowly swung open, creaking on its hinges. In the darkness only the dripping outline of a stranger could be seen. A thunder clap shook the house. Lightening flashed behind the bedraggled visitor revealing a tattered blue sailor's suit.
"Good grief," said Little Nell, "it's Uncle Donald!" Who will take Scrooge's estate? What would have been the result had Scrooge died in Utah before or after July 1, 1998? What would have happened if Louis had survived Scrooge?
1. Utah Probate Code § 75-2-103.
2. Utah Probate Code § 75-2-803.
3. Old Utah Probate Code § 75-2-103 and 75-2-106.
4. Utah Probate Code § 75-2-709.
