Doctrine of Elections

The doctrine of elections comes into effect when you take under a will or against the will. When we signed up for a Social Security number we elected to take under the will. (Fourteenth Amendment codicil) An Election implies a free choice between two distinct objects or subjects; however I do not recall having that freedom of choice nor the knowledge of its existence.

A. The doctrine of election in connection with testamentary instruments is the principle that one who is given a benefit under a will must choose between accepting such benefit and asserting some other claim he has against the testator's estate or against the property disposed of by the will. (73)

B. One who elects to accept the benefit extended to him by a will is bound to give effect to all the provisions of the instrument and perform the burdens imposed on him herein, including the renunciation of any inconsistent rights or claims. (74)

C. A testamentary beneficiary to elect whether to take under or against the will in case he has some inconsistent claim against the testator's estate, is personal to him. (75)

D. Acceptance of benefits "under the will" constitutes an election which will preclude the devisee from enforcing contractual rights in property bequeathed by the will. (76)

Have you noticed that when you accept the benefits of employment you are precluded from enforcing a contract for labor.

E. Creditors (The Banks)

1. "In accordance with the generally accepted principle that the right to elect for or against a will is a personal privilege(77), many cases apply or recognize the principle that such right may not be controlled by the creditors of the beneficiary; that they can claim no right or interest in the estate contrary to their debtor's election. . . . . and they have no rights in respect of a legacy or devise to their debtor if the latter has ELECTED to take AGAINST THE WILL.

F. What Constitutes an Election

1. A testamentary election may be express or may be implied from the acts or conduct of the beneficiary. . . . or may be evidenced by matters of record or matters in pais. (78)

2. A beneficiary faced with an election "for" or "against" a will has accepted, used, enjoyed, or entered upon or remained in the possession of money, property, or some other benefit extended him by the will tends to establish an election "in favor of the will". (79)

This rule is of course, subject to the qualification that acceptance of a benefit under a will when made in ignorance of the beneficiary's rights or a misapprehension as to the condition of the testator's estate does not operate to constitute an election.

Here we have "misapprehension as to the condition of the testator's estate". Can you see that, the Crash of 29, the Great Depression, rumors of the Bankruptcy of the United States, could intentionally create a misapprehension of the condition of the estate, in order to elicit an "election to take under the will" and receive the benefits offered by the Social Security act? Can you see that, an employer telling you that you must have a social security number in order to work is misrepresentation to force you take under the will? Can you see that, a so-called peace officer telling you that you must have a Drivers license is coercion to take under the will? Diabolical isn't it?

1. Where the money or property was received or accepted in some other capacity than that of a testamentary beneficiary, or amounted to no more than what the beneficiary would have been entitled to independently of the will such receipt or acceptance does not indicate the making of a binding election in favor of the will.

2. Acceptance of the benefit of a provision in a will does not constitute an election precluding the donee from asserting any rights he may have as promises under a contract with the testator, where the provision in the will does not appear to have been made for the purpose of satisfying the testator's obligation, but for a wholly different motive. (80)

I believe there is a contract with the testator, a covenant in fact.

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G. Effect of Fraud or misrepresentation

1. Failure to make an election within the statutory period may be excused where the beneficiary was induced to refrain from an election through the FRAUD OR MISREPRESENTATION of interested parties . . . (81).

2. Two things are necessary in order that the acts (conduct of the beneficiary) relied upon will amount to an election:

a. The person alleged to have made an election must have been cognizant of his rights, that is he must have had knowledge not only of the condition and extent of the testator's estate, but also of his duty to elect between the two inconsistent RIGHTS.

b. Having knowledge of his rights, he must have intended, as shown by clear and unequivocal acts to make a choice.

1. Lack of knowledge, when accepting benefits under the will, that the provisions of the will did not fulfill the contractual obligation is a factor affecting a determination of whether the acceptance of benefits under the will constitutes an election. (82)

2. Elections procured through fraud or undue influence, or of elections followed by the failure of the provision made in the will for the electing party or the nonperformance of a condition upon which the election was made, has been widely recognized.

_________ Footnotes :

1. 80 Am Jur 2d Wills '1607, Annotation: 82 ALR 1510, 1511.

2. 80 Am Jur 2d Wills, '1607, Annotation 82 ALR 1510; 93 ALR 1384.

3. 80 Am Jur 2d, Wills '1611

4. Annotation: 60 ALR3d 1147, 1170, '4.

5. 80 Am Jur 2d Wills, '1610.

6. Blacks Law 5th Ed. p.1000 Matters in pais signifies matter of fact, probably because matters of fact are triable by the country; i.e. by jury.

7. 80 Am Jur 2d Wills '1626, Annotation: 82 ALR 1525 et seq.

8. Wilson v Safe Deposit & Trust Co., 183 Md 245, 37 A2d 321, 152 ALR 892. The Founding Fathers had a Contract with the Posterity and the Fourteenth Amendment does not satisfy the testators obligation but has a wholly different motive.

9. Annotation : 173 ALR 3d 143 '9.

10. Crawford v Briant (CA10 Okla) 53 2d 754, Annotation: 60 ALR3d 1147, 1172, '7.

ELECTION HAS DEEPER MEANINGS