Wills, Trusts, and Estates, Ninth Edition (Aspen Casebook)

Dukemenier
Wills, Trusts, and Estates
Power to Transmit Property at Death

Succession - Transfer of goods/property after death

Right of Disposition - Right to control disposition of property at death

Shapira v. Union Bank

Partial restrictions on marriage (marrying a Jew) do not violate the 14th

amendment or public policy

"Restraint unreasonably limits the transferee's opportunity to marry if a

marriage permitted by the restraint is unlikely to occur"

Notes

Incentive trusts - Conditional gifts (like Shapira).

Types of incentive trusts:

o
Encourage education
o
Moral incentives (e.g., charitable donations with inherited money)
o
Conditions designed to make the beneficiary have a productive career

Contrary to Public Policy - A condition not to marry or that encourages divorce

is likely unenforceable as they are contrary to public policy

R.3d of Trusts (cmt i) - What is contrary to public policy should balance the
freedom of disposition "against other social values and the effects of deadhand
control on the subsequent conduct or personal freedom of others." (cmt. 1) if the
provision is unnecessarily punitive or unreasonably intrusive into the into significant
persnal interests or decisions the provision may be invalid.
Alternatives to Freedom of Dispositon

Forced Succession - Decedents property could pass by mandatory succession

to dependents. If there are no dependents then property would escheat to the
state

Freedom of Disposition - Property could pass in accordance with decedents

wishes if they are preserved. If not preserved, then in accordance with a
default system of succession that tracks probable intent of a typical decedent

Confiscation by the State - Property is confiscated by the state upon death.

Basic Probate; Basic Administration

Probate Property - Property that passes through probate under the

decedents will or by intestacy

Nonprobate property - Property that passes outside of probate by way

of will substitute. Types of nonprobae transfers include:

Inter Vivos Trust - Property is put in trust and the trustee holds it for the
benefit of one or more of the beneficiaries. Property put in inter vivos trust
does not go through probate (unlike testamentary trust). Property put in
inter vivos trust during the decedents life passes in accordance with the
trust, avoiding probate. (inter vivos now preferred to testamentary)

Life insurance - Proceeds of a life insurance policy on decedent's life

are paid to the beneficiary under the contract. Paid after receipt of death
is given. Contracts parable on death operate independent of probate
administration

Pay on Death and Transfer on Death Contracts - To collect on POD/TOC,

the beneficiary must file a death certificate with the custodian (eg, bank,
brokerage, and retirement accounts)

Joint Tenancy - Under joint tenancy, decedents interest vanishes at

death and the surviving party owns the decedent's share.
Property - To collect property under joint tenancy, survivor must file a

death certificate with the local registrar of deeds

Join Bank/Brokerage account - Survivor must file death certificate with

the account custodian

If a person did not arrange for all of his property to transfer by

nonprobate transfer and family cannot divide it in private, probate
administration fills the gap. Same goes for if there's a dispute about the
division

Probate Terminology

Personal representative - oversees the winding up of decedents affairs.

He is a fiduciary who collects and inventories the property of the

decedent; processes claims of creditors and files federal and state tax
returns; and distributes property to the entitled

Executor - If decedent dies testate and in her will names the person to
execute the will and administer the probate estate, that person is the executor

Administrator - If a person dies intestate, the will does not name an

executor, or the executor does not want to do it, the court assigns a personal
representative called administrator. Administrator is usually determined by
statute typically: surviving spouse, children, parents, siblings, and creditors

Intestacy - Dying without a will

Probate court - each county has 1 court that has jurisdiction over
decedents estates

Will and Testament - Used interchangeably

A person dying testate is said to devise real property to devisees and

to bequeath personal property to legatees. Devise = land. Bequest = personal
property

Intestate decendent - Real Property is said to descend to heirs.

Personal property is distributed to next of Kin

Statute of descent and distribution - governs intestacy in almost all

states, making those persons intestate successors to both real and personal
property.

Probate Administration
Performs 3 functions:

Provides evidence of transfer of title to the new owners, making

property marketable again
Protects creditors by providing a procedure for payment of decedents
death; and
Distributes the decedent's property to those intended after creditors
are paid

Opening Probate and Choice of Law

The state where decedent was domiciled governs disposition of

property and the law of the state where real property is located governs
disposition of real property.

Primary or Domiciliary Jurisdiction - Jurisdiction where decedent was

domiciled at death. Ancillary probate in jurisdiction where real property is
required when applicable.

To avoid litigation and other costs of ancillary probate administration,

lawyers commonly devise inter vivos trust. Because the trustee holds title
to the trust property, there's no need to change title by probate
administration upon death of the settlor

A person appointed as administrator must give bond, which insures

against mismanagement or misappropriation. Administrator must give the
bond unless the will waives the bond requirement (which is common because
the administrator is usually a trusted person)

Common form and Solemn Form Probate

In states that use the English system, an executor can probate a will in
common form or solemn form

Common Form Probate - Ex parte proceeding in which no notice or

process is issued to any person. Due execution of the will is proved by oath of
the executor or other witnesses that may be required. The will is admitted to
the probate at once, letters of testamentary are granted, and the executor
begins administration of the estate.

An interested party can file a caveat, compelling probate of the will in

solemn form so long as it's done within the statutorily required period

Solemn Form Probate - notice to interested parties given by citation,

due execution of will proved by testimony of attesting witnesses, and
administration of estate involves greater court participation.

Formal and Informal Probate

Uniform Probate Code (UPC) - Provides for notice probate (called formal
probate, rather than solemn form) and ex parte probate (called informal
probate, rather than common form)

If person asking for letters seeks informal probate, the validity of the
will or determination of intestacy need not be litigated unless an interested
party objects

UPC 3-301 requirements for informal probate:

Without giving notice to anyone, the rep petitions for appointment

Petition must contain pertinent information about the decedent and

names/addresses of spouse, children, and other heirs, and if a will is
involved, the devisees

If the petition is for probate of will, the original will must accompany
the petition.

Executor swears the will has been validly executed (proof by witnesses
not required)

A will that has the required signatures and attestation clause showing
requirements of execution have been met is probated by registrar without
further proof (UPC 3-303)

Within 30 days, the personal rep must mail notice to every interested
party, including the disinherited (UPC 3-705)
Any interested party may file a petition for formal probate (UPC 3-402)
UPC 3-401 - Formal Probate

Formal probate is a litigated judicial determination after notice is given

to interested parties. A formal proceeding may be used to probate a will,
block informal proceeding, or secure declaratory judgment of intestacy

Supervised and Unsupervised Administration

Supervised Administration - Personal representative is subject to

continuing authority of the probate court in administering the estate. UC 3-501

Personal rep can act without approval of the court, but cannot make a
distribution to the beneficiary without the court's approval. UPC 3-504

Unsupervised Administration - After appointment, the personal rep

administers the estate without going back into court. Has broad powers of a
trustee in dealing with the estate property without court approval. UPC 3-715

Interested party can petition for supervised administration at any time.

UPC 3-502

Barring Creditors

Nonclaim statutes - Require creditors to file claims within a specified

period. Each state is different in UPC it's 3-803.

They bar claims not filed within a relatively short period of time after
probate proceedings have begun (usually 2-6 months. 4 months under
UPC); OR

Creditors are notified to file claims in newspaper after probate

proceedings are opened

They bar claims not filed within a longer period after decedents death
(5 years typically. 1 year under UPC)

Self-executing statutes; Protection is provided after the time

period has run whether probate proceedings have begun or not

Closing the Estate

In supervised administration, judicial approval is required to relieve the

representative from liability. In Unsupervused administration, the estate may
be closed by the personal rep by filing a sworn statement that she has

published notice to creditors, administered the estate, paid all claims, and sent
a statement and accounting to distributees. UPC 3-1003
Avoiding Probate

If the amount is small ($25k under UPC) probate can be avoided by

successors filing an affidavit in a summary administration.

Some statutory provisions allow wage claims and certificate of title

transfers upon affidavit of decedent's successors

PROFESSIONAL RESPONSIBILITY
Duties to Intended Beneficiaries
Simpson v. Calivas

Attorneys drafting wills owe a duty of reasonable care to intended

beneficiaries

A v. B

Rule of Professional Conduct (1.6) permits a lawyer to disclose

confidential communication to the extent the lawyer believes is reasonably
necessary "to rectify the consequences of the client's criminal, illegal, or
fraudulent act in furtherance of which the lawyer' services had been used

Intestacy - Basics

Testate - Dying with a Will

Intestacy - Dying without a will

Governed by rules of partial intestacy

Partial intestacy - Will disposes of only part of the probate estate

Estate Planning by Default

Will substitutes - Joint tenancy, Payable On Death designations on Life

insurance, bank accounts, pension plans, and revokable trusts

Intestacy statutes govern descent and distribution of people who die

intestate. In place to carry out probable intent of the decedent

Intestacy law favors spouse, then descendants, then parents, then

collateral, and then more remote kindred.
o
Adopted and testtube kids treated as equivalent

In most states intestacy does not provide for step relations in a

blended family or unmarried cohabitating partners (in some states reform is
adding them)

Escheat - Property escheats to the state when there are no surviving

relations within the degree of kinship specified by intestacy statute

Personal property - governed by law of state here decedent was

domiciled

Real property - disposition governed by laws of state where real

property is located

SEE UPC PROVISIONS AND SUCCESSION CHART

Heirship and Expectancy of Heir Apparent

Heirs - Heirs identified by applicable statute of descent and distribution

at A's death. NO LIVING PERSON HAS HEIRS

Heir Apparent - Person who would inherit a person's property if that

person died. Their expectancy is contingent on them surviving that person.

Hair apparent' s expectancy is defeasible by decedents contrary

disposition by will, will substitute, or lifetime gift.

Expectancy of inheritance is not a legal interest. It cannot be

transferred by law. A purported expectancy for consideration may be
enforceable in the courts of equity if the court views it as fair under the
circumstances

Basic Structure of intestate succession

Intestate succession favors spouse and then descendants (by

blood/adoption). Surviving spouses share ranges depending on jurisdiction

Surviving Spouse

In most states, the surviving spouse receives at least one-half of the

share of the decedents estate (depending on other variables)

Under UPC 2-102(1) if all the decedents descendants are also

descendants of the surviving spouse, and the surviving spouse has no other
descendants, so that there are no step children, the surviving spouse takes
the entire estate to the exclusion of the decedent's descendants

(thought is she will pass any remainder she doesn't need to

descendant's)

Under UPC 2-102(2), if there are no descendants the surviving spouse

must share with the decedent's parent's (if any). If no parents, surviving
spouse gets all to the exclusion of collateral relatives

In a few states, must share with decedent's siblings

Domestic Partners and Same-Sex Marriage

Not sure about this one. Ask Becker

Simultaneous Death

Janus v. Tarasewicz - Under the Uniform Simultaneous Death Act, the

party whose claim to the decedents assets or insurance proceeds depends
on survivorship has the burden of proving it by a preponderance of the
evidence.

UPC 2-104 & 2-702 provide that an heir, devisee, or life insurance
benefiary who fails to survive by 120 hours (5 days) is deemed to have
predeceased the decedent. Claimant must establish survivorship of 120
hours by clear and convincing evidence

Under Uniform Determination of Death Act (enacted in most states) an

individual who sustained either (1) irreversible cessation of circulatory or
respiratory functions; or (2) irreversible cessation of all functions of the
entire brain, including the stem, is dead

Descendants

In all states, after the spouse's share is set aside, children and
descendants of deceased children take the remainder of the property to the
exclusion of everyone else.

Representation

When one of several children died before decedent, leaving

descendants, the child's descendants shall represent the dead child and
divide the child's share amongst themselves

EG if there are 3 kids. 1 dies before the mother and has 2 kids, then
mother dies intestate, 1/3 her property goes to each of her 2 kids and
the other 1/3 gets split between the 2 grand kids (1/6 a piece)

English Per Stirpes (see page 82 for a good example)

1/3 of states follow per stirpes (by the stocks). So if mother's 2 kids die
before her, and 1 kid has 1 kid and the other has 2 kids, when mom dies
her grand kids get half of the estate. 1/2 goes to kid 1 and 1/2 goes to kids
2 and 3. Kid 1, having no siblings gets a larger share than his cousins
because the other half is split between them

Ensures vertical Equality, comparing lines of descendants (children of

deceased who predeceased their parent), but at the expense of
horizontal equality (equal shares for each taker of equal degree of
kindship to the donor)

Modern Per Stirpes

Estate is divided equally (per capita) at the first generation in which

there are living takers, which is usually decedent's grandkids (if her actual
kids died before she did). If the grand kids die and have descendants then
the share is split amongst the descendents using the english per stirpes
system above

EG, grandkids get 1/3 apiece. If one of those grandkids is dead, their
kids have to split the 1/3 share their parent would have gotten.

Per Capita at Each Generation (see page 83)

About a dozen states follow this complicated ass system. UPC 2-106(b).
"If, under Section 2-103(1), a decedents intestate estate or a part thereof
passes by representation to the decedents descendants, the estate or
part thereof is divided into as many equal shares as there are (i) surviving
descendants in the generation nearest to the decedent which contains one
or more surviving descendants and (ii) deceased descendants in the same
generation who left surviving descendants, if any. Each surviving
descendant in the nearest generation is allocated one share. The remaining
shares, if any, are combined and then divided in the same manner among
the surviving descendants of the deceased descendants as if the surviving
descendants who were allocated a share and their surviving descendants
had predeceased the decedent"

EG; mother dies, has 3 kids. 2 of her kids die but 1 lives. Dead kids
have 3 kids. 1/3 of the estate goes to the living kid of mother and the
other 2/3 that would have gone to the other two is split equally
amongst the grandkids

Representation in Wills and Trusts

If a will says property passes "per stirpes" a court may interpret it as

English per stirpes system or just use same representation system provided
for by the statute.

Ancestors, Collaterals, and Others

Parents - In half of the states if the intestate decedent has no

descendants, after the spouse's share is deducted, the parents get the rest
(UPC 2-102(2). In the other half, the spouse takes to the exclusion of the
decedent's parents

Other ancestors and Collaterals - If there's no spouse or parent, the

decedent's heirs will be more remote ancestors or collateral kindred.

Collateral kindred - All persons related by blood to decedent who are

not descendants or ancestors

First-line collaterals - descendants of the decedents' parents, other

than the decedent and the decedent's descendants

Second-line collaterals - Descendants of the decedents grandparents,

other than the decedent's parents and their descendants (brothers and
sisters)

If decedent is not survived by spouse, descendant, or parent, in ALL

jurisdictions the intestate property passes to brothers and sisters and their
descendants. The descendants of any deceased brothers and sisters
(nieces and nephews) take in the same manner as the decedent's
descendants.

UPC 2-106(c) is applicable, providing for representation per capita at

each generation

If there are no first-line collaterals, the states differ on who is next in

line of succession. Two Schemes are used: parentelic system and degree-ofrelationship system

Parentelic System - Intestate estate passes to gran parents and their

descendants; if none, goes to great-grand parents and their
descendants; if none great-great grandparents and their descendants,
etc.

Degree of Relationship - Intestate estate passes to closest of kin,

counting degrees of kinship. To ascertain degree of relationship of the
decedent the claimaint you count the steps the steps up from the
decedent to the nearest common ancestor and then count the steps
down claimant from common ancestor. Total number of steps is the
degree of relationship (see tale of consanguinity)

Laughing Heirs - Succession by distant relatives

Half of the states have abolished laughing heirs by drawing the line at
grand parents and their heirs such as UPC 2-103(a)

Step Children and In-Laws

1/3 of states and UPC recognize stepchildren as potential heirs

UPC 2-103(b) says stepchildren take if there are no surviving
grandparents or descendants of grandparents or more closely related kin
CA extends to in-laws

Half-Bloods

UPC 2-107 a relative of the half-blood (eg, half-sister) is treated the

same as a relative of the whole-blood (majority of states follow).

Some states only allow a half-blood to be given a half-share (Scottish

rule in states like TX, FL, and VA)

OK - half-bloods are excluded when there are whole-blood kindred in

the same degree, the inheritance came to the descendant by ancestor, and
the half-blood is not a descendant of the ancestor

Escheat

If the decedent leaves no survivors entitled to take under the intestacy

statute, her probate property escheats to the state under UPC 2-105

Disinheritance by Negative Will

Under UPC 2-101(b) a negative will by express disinheritance provision

(eg, John gets NON of my property) treats the barred heir as predeceased
(meaning he gets nothing even partial intestacy property)

Transfers to Children
ADOPTION

Hall v. Vallandingham - An adopted Child may not collect dually.

Adopted child has no right to inherit from the estate of a natural parent who
dies intestate; same child may not inherit by way of representation.
(Adopted child inherits only from adoptive parents and relatives)
A person who is not entitled to inherit from a natural parent as a result of
having been adopted, also may not inherit through that natural parent after
the parents death by standing in that parents shoes as a descendant
under the intestacy law that permits descendants to receive an intestate
share that would have passed to the natural parent had he survived.

Notes

(1) Some States follow Hall; (2) Some States say that adopted child
inherits from adoptive relatives and genetic relatives if adopted by
stepparents; (3) UPC 2-119(b):
(b) [Stepchild Adopted by Stepparent.] A parent-child relationship
exists between an individual who is adopted by the spouse of either
genetic parent and:
(1) the genetic parent whose spouse adopted the individual; and
(2) the other genetic parent, but only for the purpose of the right
of the adoptee or a descendant of the adoptee to inherit from or
through the other genetic parent.
(c) [Individual Adopted by Relative of Genetic Parent.] A parent-child
relationship exists between both genetic parents and an individual who
is adopted by a relative of a genetic parent, or by the spouse or
surviving spouse of a relative of a genetic parent, but only for the
purpose of the right of the adoptee or a descendant of the adoptee to
inherit from or through either genetic parent.
(d) [Individual Adopted after Death of Both Genetic Parents.] A parentchild relationship exists between both genetic parents and an
individual who is adopted after the death of both genetic parents, but
only for the purpose of the right of the adoptee or a descendant of the
adoptee to inherit through either genetic parent.

If this law was applicable in Hall, William could not inherit from
Earl's kids, but Earl's kids could inherit from Earl's other siblings

ADULT ADOPTION

Most intestacy statutes do not distinguish between an adopted adult

and an adopted child. Adult can inherit or not inherit in the same was as
blood.

In some states, adoption of one's lover is not permitted (eg, NY). Other
states (DE) disagree and say that is ok.

Only persons who have standing can challenge validity of a will. It is

perfectly proper to adopt (adults) in order to prevent a will contest

ADOTION AND WILLS AND TRUSTS

Stranger-to-the-adoption Rule: The adopted child is presumptively

barred, if the donor is not the adoptive parent

Exception: Adopted child might take if he was adoptive before the

donors death

EG, Uncles will gifts $100k to children of brother. Step kids would
likely be included if those kids were adopted before the death(?)

Minary v. Citizens Fidelity Bank and Trust Co - Adoption of an adult

for the purpose of bringing that person under the provisions of a preexisting
testamentary instrument when he was not intended to be covered is not
permissible

EG, adopting wife so she can be an heir after person husband inherited
from dies

Power of appointment - Enables the holder of power to designate who

will take the property subject to the power

Cases are split on whether an adult adoptee is included in a class gift

made by someone other than the adoptive parent

UPC 2-705(f) - Excludes person adopted after reaching age of 18 froma

class gift to adoptive parents children, unless the adoptive parent was the
foster or stepparents, or functioned as the parent of the adoptee before the
adoptee turned 18.

EQUITABLE ADOPTION

AKA virtual adoption or adoption by estoppel - Informal type of

adoption

O'Neal v. Wilkes - Under Georgia law, a contract for adoption is invalid

unless entered into by a parent or guardian, the only persons with authority
to contract for adoption.

In equitable adoption cases, some courts require clear and convincing

evidence of a contract between the parties who agreed to adopt

POSTHUMUS CHILDREN

Posthumous Child - Conceived before, but after his father's death. Child
is treated as being at the time of conception rather than birth, so
posthumous child can take as a normal one would

Normal period of gestation is 280 days (10 months)

Uniform Parent Act - Rebuttal Pruesumptuon that child born
within 300 days of her husband's death is a child of that husband

Nonmartial Children

All states say illegitimate kids (born out of wedlock) are permitted to
inherit from the mother. Rules as to father vary though

Most states liberalized their rules to allow nonmarital children to inherit

through their father.

Most permit is by evidence of subsequent marriage of the

parents, acknowledgement of the father, an adjudication during
the life of the father, or clear and convincing evidence

In NY a nonmarital child may prove paternity by evidence derive

from a genetic marker (DNA) test

Under UPC 2-2705(e ) a nonmarital child can inherit a gift but only if
the person creating the inheritance "functioned as a parent before the
child reached age of 18"

POSTHUMOUSLY CONCEIVED CHILDREN AND WILLS AND TRUSTS

In re Martin B. - Where a governing instrument is silent (statute),

children born of biotechnology with the consent of the parents, are entitled
to the same rights "for all purposes as those of a natural child"
UPC focuses on date of distribution of the gift (see pg 123)

SURROGACY AND MARRIED COUPLES

Many states do not have any laws regarding surrogacy contracts. Some
like MI refuse to enforce contracts where compensation for surrogacy is
given

Assisted Reproduction and Same Sex Couples

Children born of surrogates to same-sex couples inherit to and from

both mothers/fathers

Amendments to the UPC

Inheritance rights turn on whether a parent-chidl relationship exists

UPC 2-121 - A surrogate does not have a parent-child relationship
unless no one does.

Advancements and Hotchpot

If a child wishes to share his interstate distribution, he must permit the

administrator to include the in the determination of the distributive shares
the value of any property of the decedent, while living, gave the child by
way of advancement.

Advancements at Common Law

Advancement - Any lifetime gift by the decedent to a child

(prepayment of the child's intestate share)

Child has burden of proving that the advancement was an absolute

gift, rather than an advancement, if he wishes to retain that amount
after the decedent has passed

Hotchpot

Hotchpot - An advancement is accounted for during the distribution of

the estate
o
EG; estate worth 50k to 3 kids. Kid 1 got $10k advancement.
$10k is added to $50k estate, divided by number of kids ($20k each).
The advancement is deducted form the recipients share. So 2, 3 get
$20k a piece where 1 only gets $10k because of advancement

Advancements in modern Law

Many states of reversed the common law presumption of

advancement, requiring a person show that the lifetime gift was intended
to be an advancement.

UPC 2-109(a) - Requires that an advancement be declared in writing

signed by the parent or child

UPC 2-109(c) - Advancement is not taken into account in determining

share of the child's descendants (eg, child dies before parent, has
advancement before he dies, what kids get not effected by
advancement when gramps dies)

Guardianship and Conservatorship of Minors

Guardian has responsibility for the minor child's custody and care

Surviving parent is typically the guardian

Appointed guardian in a will is persuasive, but not binding. Court will

act in best interest of the child

Property Management Options (Managing the child's property)

Alternatives for property Management

Guardianship of the property - Guardian has the duty of preserving the

ward's (minor child) property until the ward reaches 18 years old. Guardian
can use income from the property to support the ward, but the ward needs

court approval to do so. (it's like endless probate until child reaches 18.
should be avoided)

Conservatorship - Has to protect the person's property along with

investment powers. Conservatorship is far more flexible than guardianship,
usually only requiring 1 trip to the courthouse annually for accounting
purposes. Terminates when child reaches 18.

1.

Custodianship - Custodian is given property to hold for the benefit of a

minor under the Uniform Trasfers to Minors Act or to its predecessor under
the Uniform Gifts to Minors Act.
o

Facility of payment clause - Clause in a will allows property to be

distributed to the minor or paid to the custodian.

UPC 5-104 authorizes distribution of sums not exceeding $5k per year.

UTMA 6 - payments to custodians in excess of $10k require court

approval

Under UTMA 14(a) a custodian has discretionary power to expend

"for the minors benefit so much of the custodial property as the
custodian considers advisable for the use and benefit of the minor,
without court order and without regard to (i) the duty or ability of the
custodian or any other person to support the minor, or (ii) any other
income property of the minor which may be applicable or available for
that purpose

If the property is not expended, the custodian is required to transfer

the property to the minor after attaining age of 18 or 21 depending on
circumstances

Custodian has the right to manage the property and reinvest it,
however he is subject to standard of reasonable care by a prudent
person dealing with the property of another.

No accounting is required but may be ordered if an interested party

asks

Trusteeship - Trust is most flexible. Donor can tailor the trust to specific
family circumstances. Under a trust, the donor can postpone disbursement
until he thinks the child is competent to manage the property, postpone it
entirely, or require that the property remain in trust for generations

BARS TO SUCCESSION
1.
2.

Slayer Rule - Prohibits Slayer from inheriting from victim

Voluntary disclaimer - Devisee declines to take the property

Slayer Rule
In re Estate of Mahoney - Where the statutes of descent require distribution of a
decedents assets to the party responsible for the wrongful killing of the
decedent, the estate must pass as statutorily required but equity imposes a
constructive trust requiring the killer to hold the assets in trust for the
decedents next of kin.
Three types of slayer rules:
1.
2.
3.

the killer inherits despite the killing.

the estate does not pass to the killer.
by placing a constructive trust on the estate assets to be held for the
benefit of the decedents next of kin.

UPC 2-803 - Killer is treated as having disclaimed the property. A disclaimant is

treated as having died before the victim
UPC 2-803(g) - A final conviction of a felonious and intentional killing is
conclusive in finding the slayer rule is applicable
4.

Since criminal standard is highest, court must determine whether

preponderance of the evidence shows the individual would be criminal
accountable for the killing. If so, the individual is barred

5.

If killer appeals, he is still barred from recovering

6.

Some courts say guilty by insanity bars, others say it doesn't

Unworthy Heir
7.

UPC 2-114 - Bars inheritance if clear and convincing evidence shows

that the parental rights could have been terminated for nonsupport,
abandonment, abuse, or neglect

8.

Some statutes bar inheritance if the heir abused the decedent

9.

In Some states a spouse who abandons the decedent is barred

Disclaimer
Disclaimer - Devisee declines to take the property
10.

Almost all states have enacted disclaimer legislation treating the

disclaimant as having died before the decedent or before the time of
distribution

Disclaimer and Representation

11.

Grandkids do not inherit equally if 1 person disclaims inhertiance

Avoiding Taxes
(eg, rather than 5 grandkids form 2 different people being split equally (1/5
a piece) the kid with the parent who didn't disclaim gets half, while the
other 4 kids get 1/8 (since estate is divided in half. See PG 141)
12.
13.

Most State disclaimer statutes require that disclaimer be made in nine

months
UPC (and 1/3 of states) do not have a time limit for disclaiming

Avoiding Creditors
14.

Most disclaimer statutes provide that a disclaimer relates back for

all purposes to the date of the decedent's death

15.

UPC 2-1106(b)(1) - In an intestate estate, the disclaimer takes effect as

of the time of the intestate's death

1.

Ordinary Creditors - Most cases hold that an ordinary creditor cannot

reach disclaimed property. Because the property relates back as of the
decedent's death, the property is treated as passing directly to others,
bypassing the disclaimant.
1. Federal courts will respect the state law relation-back doctrine against
a bankrupt debtor.
2. If disclaimer files bankruptcy before he disclaims, most courts hold the
disclaimer is ineffective

1.

Federal Tax Lien - A person cannot disclaim in order to avoid a tax lien
(Drye v U.S.).

Disclaimers to Qualify for Medicaid

Some states may require reimbursement if inheritance was disclaimed

to keep medicaid going

Execution of Wills (pt. 1)

Testator - Person who created the will

Testate - Dying with a will
Types of wills: (1) Attested Will; (2) holographic will; and (3) notarized
will

Attested Wills

1.
2.
3.

Formalities required to make an attested will:

Writing;
Signature; and
Attestation

1.
2.
3.

Statute of Fraud States:

Writing;
Signature; and
Attestation and subscription by 3 witnesses

1.
2.
3.

Wills Act States:

Writing;
Subscription (signature at the end or foot of the will);
Attestation and subscription by 2 witnesses (witnesses have to
be present when will is signed or acknowledged)

1.
2.
3.

Uniform Probate Code (1990)

Writing
Signature
Attestation and signature by 2 witnesses

1.
2.
3.

Uniform Probate Code (1990, rev. 2008)

Writing
Signature
Attestation and signature by 2 witnesses or notarization

Justifications for Will Formality Requirements

Ritual Function - Ceremonial purpose impresses the transferor with

significance of his statements, justifying the court in reaching the conclusion
that they were deliberately intended to be operative

Evidentiary Function - Emphasizes the purposes of supplying

satisfactory evidence to the court

Protective Function - Safeguarding the testator from undue influence or

other forms of imposition

Channeling function - Formalities result in considerable uniformity in

the organization, language and content of most wills. Lowers cost of judicial
administration, benefiting the estate and its distributees

Strict Compliance Rule

Strict Compliance Rule - Under traditional law, for a will to be admitted

to probate it must be in strict compliance of the formal requirements of the
applicable Wills Act.

In re Groffman - Will signed by testator beforehand. Witnesses asked to

sign and acknowledge, but did so out of the presence of one another (one was
in kitchen, other was on his way to). Court refused to admit the will to probate
because of non-compliance with the statute

Attestation Clauses - Attestation clause will say that the will was
executed in compliance with the statute and was signed accordingly.

Attestation clauses are not required, but give rise to rebuttal presumption
of due execution. Gives lawyer more ammunition for a vigorous crossexamination of witnesses

Stevens v. Casdorph - Court held that will was invalid because it was not signed in
the presence of the testator or each other, and that the testator did not sign in the
presence of the witnesses
Presence

Line of Sight - England and some American States say that presence is
satisfied only if the testator is capable of seeing the witnesses in the act of
signing.

(exception for blind people: testator would have been able to see the
witness sign from where he was standing/sitting if he had sight)

Conscious Presence (used in other American States) - Conscious presence test

is mental apprehension test where the testator is present if the testator,
through sight, hearing, or general consciousness of events, comprehends that
the witness is in the act of signing.

Uniform Probate Code (2-502(a)) - Dispenses requirement that witness sign in

testator's presence altogether. For signature by another at the testator's
direction, the UPC requires conscious presence

Signature Requirement

All states require a signature from the testator. A full signature is preferable
but a mark, cross, abbreviation or nickname can be sufficient

If someone signs name of the testator at the testators direction and in his
presence, the will would be considered valid.

Order of Signing

In general, a testor must sign or acknowledge the will before the witnesses
attest. But, if they all sign as part of a continuous transaction, the exact order
of the signing is not critical

Subscriptions and Additions after

If will is signed before something is added to the foot or end of a document

(where signature should be in subscription jurisdictions), the will might be
invalid in subscription states

Delayed Attestation

If a witness sees the testator make or acknowledge his signature, the witness
must sign within a reasonable time. Reasonable time could be after the death
of the testator

Meaning of "Writing" and Video or Electronic Wills

A writing isn't necessarily required. All that is required is a reasonably

permanent record of the markings that make up the will

Video wills - Court held that video records of spoken will, sealed in an envelope
that is signed, does not comply with the "signed writing" requirement in Estate
of Reed

Electronic Wills - An eWill probably does not satisfy the writing (or signature)
requirements of an ordinary Wills Act, but might be allowed under substantial
compliance doctrine or harmless error rule.

Interested Witnesses and Purging Statutes

In re Estate of Morea - Under N.Y. Estates, Powers & Trust Law (EPTL) 3-3.2, a
bequest to an attesting witness who is also a beneficiary will be valid as long
as the other two witnesses do not receive a beneficial interest.

Kevin (son of deceased) and son's friend, George, were attesting

witnesses to Kevin's dad's will along with a party not in the will. Under NY
law, an attesting witness to a will to whom a beneficial disposition is made
is void unless, at the time of attestation and execution, there at least two

other attesting witnesses to the will who received no beneficial disposition

or appointment thereunder.

Here, the will is valid. Under the will, Kevin is entitled to less than his
intestate share so he is not "benefitting" under the statute. George
does not have to forfeit his disposition because two other witnesses
who receive no beneficial disposition thereunder (Kevin and other
person) were also witnesses

Disqualification and Purging

Under the old common law, a will attested by an interested party could not be
proved in probate. Purging statutes allowed the will to be attested by an
interested witness to be admitted to probate, but voided (purged) the bequest
to the interested witness (slim majority of states have purging statutes)

Most statutes only purge the benefit that would have been received
intestacy. The witness forfeits only the excess benefit afforded to the witness
by a will

Purging statutes only apply to a witness who is necessary for the will's
validity. If there are a sufficient number of disinterested witnesses, the
interested party is said to be supernumerary and is entitled to the full devise.

A substantial minority of states following the UPC (1990) do not require

witnesses to be disinterested.

Model Execution Ceremony

Under the usual choice of law rules, the law of state where decedent was
domiciled at death governs validity disposition of personal property; law of the
state where real property is located governs validity of disposition by will of
that property

Almost all states have a statute that recognizes a valid will executive with the
formalities required either by the state where testator was domiciled at death,
the state where the will as executed, or by the state where the testator was
domiciled when the will was executed

See pg 168 for procedures that will create a valid will in all states

Self-Proving Affidavit

Self-proving affidavit recites that all the requirements of due execution have
been complied with. Permits will to be probated expediously

UPC authorizes two types of self-proving affidavits

(1) One-step self-proving affidavit - Combined attestation clause and selfproving affidavit, so the testator and witness only have to sign their name once

(2) Two-step self-proving affidavit - Separate self-proving affidavit, affixed to a

will that's already been signed and attested. The affidavit must be signed by
the testator and the witness in front of the notary after the testator and
witnesses have signed the will

Under the UPC, if a will is self-proved, due execution cannot be contested

unless there is evidence of fraud or forgery affecting the acknowledgment or
affidavit

Safeguarding a will

WI and minority jurisdictions do not allow a lawyer to safe keep the will
because of the appearance of soliciting business

Most jurisdictions hold that a lawyer who has drawn a will may retain the
executed originals of the document, subject to the client's instructions

Ad hoc relief from Strict Compliance

Some jurisdictions require strict compliance, while some courts have excused
or corrected one or another innocuous defect in execution of the will

In re Pavlinko's Estate

In re Snide

Both are cases where will was switched. Wife signed husbands will and
vice versa. Pavlinko held strict compliance rule barred the will going to
probate.

Snide said there was no danger of fraud and refusal to read the wills
together would serve merely to unnecessarily expand formalism, without
any corresponding benefit

Substantial Compliance Doctrine

Under substantial compliance doctrine the key question is whether the manner
in which the instrument was executed satisfies the purposes of the Wills Act
formalities. If so, the will should be substantial compliance and admitted to
probate.

Finding defect in formaility requirements should trigger more questions

1.
Does the noncomplying document express the decedent's
testamentary intent; and
2.
Does its form sufficiently approximate Wills Act formality to
enable the court to conclude that it serves the purposes of the Wills Act?

States have applied narrowly. EG, cases where there weren't enough
witnesses still held to not be in substantial compliance.

Harmless Error Rule

Harmless error rule - allows probate of a document not properly executed if the
court is satisfied that the deceased intended the document to be his will.

Substantial compliance doctrine allows the court to deem a noncompliant will

to be in compliance with the Wills Act; Harmless error rule allows the court to
excuse noncompliance if the error was harmless

Harmless Error Rule: UPC 2-503

(adopted in 10 states: CA, CO, HI, MI, MO, NJ, OH, SD, UT, and VA)
Although a document or writing added upon a document was not executed in
compliance with Section 2-502, the document or writing is treated as if it had been
executed in compliance with that section if the proponent of the document or
writing establishes by clear and convincing evidence that the decedent intended
the document or writing to constitute:
(1) the decedents will,
(2) a partial or complete revocation of the will,
(3) an addition to or an alteration of the will, or
(4) a partial or complete revival of his [or her] formerly revoked will or of a formerly
revoked portion of the will.

In re Estate of Hall - Case is authority for the position that the harmless error
rule may be invoked to excuse a defect in attestation.

R3d of property - Only a harmless error in executing a document can be

excused

In re Probate of Will and Codicil of Macool - A will that the decedent did not
review and give final assent to cannot be admitted to probate.

Notarized Wills

UPC 2-502(a)(3) - A Will is valid if it is signed by two witnesses or if it's

notarized. (only CO and ND have adopted this provision)

Notary is essentially equivalent of 2 witnesses

UPC 2-502(a)(3)(B) validates a will that has been acknowledged by the

testator before a notary public or other individuals authorized by law to
take acknowledgments. In many states a lawyer is able to make such
acknowledgments by being an officer of the court

Holographic Wills

A little more than half the states allow holographic wills to be admitted
to probate

Holographic Will - (1) Must be in testators handwriting; (2) Must be

signed by the testator
o
Does not need to be attested by witnesses

In re Kimmel's Estate - If an informal document contains evidence of

the decedents intent to make a posthumous gift, that document is enforceable
as a will even though the document also contains language that is not
testamentary in nature.

Again, it must be in his handwriting and signed

Conditional Wills - If a will is conditional (e.g., if I die on this trip), most

courts presume the condition is not a condition, but is a statement of
inducement for making a will

EG, "If I die on my trip to Delaware, everything goes to Justin

Timberlake." If he comes back from trip, but dies a month later, courts will
usually probate it.

Preprinted Will Forms

If a person obtains a preprinted will form, completes the form by hand,

and signs it, but does not have witnesses, it couldnt be entered into probate
as a formal will. However, it MIGHT be a holographic will IF enough of the text
is handwritten by the decedent.

In re Estate of Gonzales - Where a holographic will is partially

handwritten and partially preprinted, the preprinted text may be read in
conjunction with the handwritten portions if the evidence as a whole
demonstrates the decedents testamentary intent.

In Gonzales, the court looked at the pre-printed words to find

testamentary intent. In MANY other states, the court does not look to the
pre-printed words. Instead, they hold "the handwritten words must be
intelligible without resort to words that are not in the testator's
handwriting. All other provisions whether pre-printed, typed, or written by
others are deemed surplusage and must be ignored."
Handwritten documents must be able to stand alone

Surplusage Theory - The idea that the handwritten portion of the

instrument should be given effect as a holographic will if It makes sense
without the text not written by the testator.

Some courts are willing to look at the pre-printed words to determine

testamentary intent, but some are not

Signature and Handwriting Issues

Signature - In almost all states that allow holographic wills, the testator
may sign the will at the end, beginning, or anywhere on the document. If not
signed at the end though, there may be doubt as to whether he intended his
name to be his signature

Extent of Testator's Handwriting (How much is enough?): Statutes

fall into 3 generations

The will must be Entirely written, signed, and dated.

Material provisions (1969 UPC) - Only the signature and material

provisions must be in the testators handwriting.

"Material portions" and Extrinsic Evidence allowed (UPC 1990) Words identifying the property and devisee MUST be handwritten. Words
such as "I bequeath" or "I devise" in pre-printed form is immaterial.
Extrinsic evidence can also be admitted to demonstrate testamentary

intent
Extrinsic Evidence

In re Estate of Kuralt - A letter that conveys a decedents testamentary

intent to make a specific bequest is enforceable as a holographic codicil to the
decedents formal will.

Will Revocation

A will is ambulatory - Subject to modification or revocation prior to

testator's death

Revocation by Writing or Physical Act

All states permit revocation of a will:

(1) By a subsequent writing with Wills Act formalities; OR
(2) By a physical act such as destroying the original will by burning, destroying,
or obliterating any part of it
(even if the words can still be read)

An oral act saying the will is revoked is not sufficient to revoke it. If not
revoked in accordance with the statute, the will must be admitted to
probate. UPC 2-507 (1990)

Express and Implied Revocatory Writings

A will executed in compliance with the Wills Act may revoke an earlier
will in whole or in part by express revocation. E.G., express revocation clause
in a new will

Implied revocation - Inconsistencies between the wills. The later will

is viewed as presumptively revoking the prior will by inconsistency. Can be
done in whole or in part

If the subsequent will does not dispose of all of the property it's viewed
as a codicil (supplement to the will, NOT a replacement). The codicil
supersedes the earlier will to the extent of any inconsistency between the
older and newer will.

Formalities, Writings, and Physical Acts

Thompson v. Royall - A written revocation on the back of a will that

does not otherwise comply with statutory requirements for revocation cannot
effect a revocation by cancellation unless the written revocation obliterates or
defaces the text of the will.

In re Estate of Stoker - A will can be revoked by a subsequent

inconsistent will.

If a photocopy is destroyed instead of the original due to wrongdoing or

mistake, a constructive trust may be set up for the persons who would have
taken had the will been revoked.

Alternatively, If intent to revoke is proven by clear and convincing

evidence, the failure to perform the act on the will, accompanied by
performance of the act on a copy that the testator mistakes for the will, may
be excused as harmless error

Presumption of Physical Act Revocation

Harrison v. Bird - The fact that a decedents original will that was in
her possession before her death is missing after her death gives rise to a
rebuttable presumption that she revoked the will by destroying the will.

If a person has possession of a will before death, but it is not found

after death, a presumption arises that she destroyed the will

When presumption arises, burden shifts to opponent of the revocation

to rebut the presumption by clear and convincing evidence or
preponderance

If she destroys a duplicate copy of the will in her possession,

presumption arises that she revoked the will

Again, must be rebutted by clear and convincing evidence or

preponderance

Lost Wills and the Presumption of Revocation

When a will last known to be in the testator's possession cannot be

found or is found in mutilated condition, the law presumes that the testator
destroyed it with the intent to revoke

Some jurisdictions apply clear and convincing evidence standard to

overcome presumption, modern trend is preponderance of the evidence
standard

If the lost will was last known to be in the possession of someone

other than the testator, there is not presumption of revocation and is entitled
to probate

The contents of a lost but unrevoked will can be proved by

photocopies, digital copies, drafter notes or recollections, or other clear and
convincing evidence. If the contents can't be proven in full, the will is entitled
to probate to the extent its contents are proved

Partial Revocation by a Physical Act

UPC 2-507 and most statutes authorize partial revocation by

physical act

Minority states say it can only be revoked in part by a subsequent

writing

Dependent Relevant Revocation

Dependent Relative Revocation - Testator undertakes to revoke his

will upon a mistaken assumption of fact or law. The revocation is ineffective if
the testator would not have revoked the will but for the mistaken belief.

EG, testator destroys a prior will thinking his new will is valid, but the
new will is invalid. If the court finds that the testator would not have
destroyed the will had he known the new one was ineffective, the court
will disregard the revocation and probate the destroyed prior will.

LaCroix v. Senecal - Under the doctrine of dependent relative

revocation, if a testator revokes all or part of her will intending the revocation
to be effective only if a subsequent will or codicil can be validly substituted,
and the subsequent will or codicil is actually not valid, then the revocation fails
to the extent that the condition on which it was based was not met.

R3d of Property 4.3

(a) A partial or complete revocation of a will is presumptively ineffective if the
testator made the revocation:
(1) in connection with an attempt to achieve a dispositive objective that fails
under applicable law, or
(2) because of a false assumption of law, or because of a false belief about an
objective fact, that is either recited in the revoking instrument or established
by clear and convincing evidence.
(b) The presumption established in subsection (a) is rebutted if allowing the
revocation to remain in effect would be more consistent with the testator's probable
intention

Limitations on DDR: DDR only applies if (1) if there is an alternative

plan or disposition that fails; or (2) if the mistake is recited in the terms of the
revoking instrument, or, possibly, is established by clear and convincing
evidence.

The alternative plan of disposition is usually found in the form of

another will, either duly or defectively executed

Revival of Revoked Wills

In re Estate of Alburn - The doctrine of dependent relative

revocation may be applied to invalidate the revocation of a will where the will
was revoked in the mistaken belief that revocation would revive an earlier will.

Revival - Will 1 is executed. Will 2 executed after which revokes will 1

by express clause or inconsistency. Later, will 2 is revoked. If doctrine of revival
applies (as it does in majority), will 1 is valid without having to be re-executed

Minority States - revoked will cannot be revived unless re-executed

with testamentary formalities or republished by being referred to in a later
duly executed will.

2-509. Revival of Revoked Will.

(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a
revocatory act under Section 2-507(a)(2), the previous will remains revoked unless
it is revived. The previous will is revived if it is evident from the circumstances of
the revocation of the subsequent will or from the testator's contemporary or
subsequent declarations that the testator intended the previous will to take effect
as executed.
(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a
revocatory act under Section 2-507(a)(2), a revoked part of the previous will is
revived unless it is evident from the circumstances of the revocation of the
subsequent will or from the testator's contemporary or subsequent declarations
that the testator did not intend the revoked part to take effect as executed.
(c) If a subsequent will that revoked a previous will in whole or in part is thereafter
revoked by another, later will, the previous will remains revoked in whole or in part,
unless it or its revoked part is revived. The previous will or its revoked part is
revived to the extent it appears from the terms of the later will that the testator
intended the previous will to take effect.

Under the UPC 2-509(a) if a subsequent will that WHOLLY revoked the
previous will is itself revoked by a physical act, the presumption is that the
previous will remains revoked (it must be revived by showing intent for OG will
to remain in effect).

Under UPC 2-509(b) if a subsequent will that PARTLY revoked the

previous will is itself revoked, the presumption is that the previous will is
revived.

Revocation by Operation of Law

Divorce

Divorce revokes any provision in a decedent's will for the decedent's

spouse (majority view)

In the remaining states, revocation only occurs if the divorce is

accompanied by a property settlement (minority).

UPC (1990) 2-804: Revocation and Nonprobate Transfers by Divorces; No

Revocation by Other Changes of Circumstance
(b) [Revocation Upon Divorce.] Except as provided by the express terms of a
governing instrument, a court order, or a contract relating to the division of the
marital estate made between the divorced individuals before or after the marriage,
divorce, or annulment, the divorce or annulment of a marriage:
(1) revokes any revocable
(A) disposition or appointment of property made by a divorced individual
to his [or her] former spouse in a governing instrument and any
disposition or appointment created by law or in a governing instrument to
a relative of the divorced individual's former spouse,
(B) provision in a governing instrument conferring a general or nongeneral
power of appointment on the divorced individual's former spouse or on a
relative of the divorced individual's former spouse, and
(C) nomination in a governing instrument, nominating a divorced
individual's former spouse or a relative of the divorced individual's former
spouse to serve in any fiduciary or representative capacity, including a
personal representative, executor, trustee, conservator, agent, or
guardian; and
(2) severs the interests of the former spouses in property held by them at the
time of the divorce or annulment as joint tenants with the right of survivorship
[or as community property with the right of survivorship], transforming the
interests of the former spouses into equal tenancies in common.
(d) [Effect of Revocation.] Provisions of a governing instrument are given effect as if
the former spouse and relatives of the former spouse disclaimed all provisions
revoked by this section or, in the case of a revoked nomination in a fiduciary or
representative capacity, as if the former spouse and relatives of the former spouse
died immediately before the divorce or annulment.
(f) [No Revocation for Other Change of Circumstances.] No change of circumstances
other than as described in this section and in Section 2-803 effects a revocation.
Marriage

A premarital will is revoked upon marriage in minority jurisdictions

In most states a premarital will remains valid in spite of a
subsequent marriage, but a surviving pretermitted spouse is entitled to an
intestate share of the deceased spouses estate, unless it appears from the will
that the omission was intentional or the pretermitted spouse is provided for in
the will or by a will substitute.

If pretermitted spouse cannot take an intestate share because one of

the exceptions applies, an elective or force share of the decedents
estate, which is available to all surviving spouses in separate property
states whether intentionally or unintentionally disinherited, may be
available

Birth of Children

A few minority states follow the old common law rule that marriage
followed by birth of children revokes a will executed before marriage

Pretermitted child statutes (followed by majority) give a child born

after the execution of a parent's will, and not mentioned in the will, a share of
the parent's estate.

Some pretermitted child statutes include children born before the

execution of a will as well as children born after

A pretermitted child statute, if applicable, results in revocation of the

parent's will to the extent of the share given to the child under the state.

Components of a Will

Integration Doctrine - All papers that are present at the time of

execution and are intended to be part of the will are treated as part of the
will

In re Estate of Rigsby - Where a purported will contains more than

one page, it must be made clearly apparent that the testator intended that
all of the pages together should constitute his last will and testament

Republication by Codicil

Republication by Codicil Doctrine - a validly executed will is treated as

re-executed (re-published) as of the date of the codicil.

Will is treated as if it was executed on the same date of the most

recent codicil

Doctrine is only applied if updating the will carries out the testators
intent

EG, jurisdiction has purging statute. T executes a will giving all

money to A, witnessed by A and B. A codicil gives 5k to C,
witnessed by C and D. Another codicil gives a diamond ring to C,
witnessed by D and E. Since D and E witnessed the last codicil it
was republished by them. Purging statute does not affect A or C
like it would have originally. (see pg 244)

Incorporation by Reference - Existing Writings

Incorporation by reference doctrine allows a writing that was in

existence but not present at the time of execution and that was not itself
executed with testamentary formalities be absorbed into the testators will.
UPC 2-510 - Incorporation by reference:
Any writing in existence when a will is executed may be incorporated by
reference if the language of the will manifests this intent and describes the
writing sufficiently to permit its identification.

Clark v. Greenhalge - A will may incorporate by reference any

informal document not executed in the manner of a will that was in

existence at the time of execution of the will, or a codicil to the will, and is
shown by adequate proof to be the document referenced in the will.

NY, LA, and CT do not recognize incorporation by reference. If a

separate memoranda is referred to in the will it must be present when the
will is executed and attached to the will in order for it to be entitled to
being probated.

Subsequent Writing and Tangible Personal Property

UPC 2-513 allows a testator to dispose of tangible personal property

in a separate writing, even if prepared after the testator's will, provided the
will makes reference to that separate writing.

The UPC further allows the testator to make revisions of the list of
bequests of tangible property without additional testamentary
formalities. Followed in slim majority of states

Section 2-513 - Separate Writing Identifying Devise of Certain Types of Tangible

Personal Property
Whether or not the provisions relating to holographic wills apply, a will may refer
to a written statement or list to dispose of items of tangible personal property
not otherwise specifically disposed of by the will, other than money. To be
admissible under this section as evidence of the intended disposition, the writing
must be signed by the testator and must describe the items and the devisees
with reasonable certainty. The writing may be referred to as one to be in
existence at the time of the testator's death; it may be prepared before or after
the execution of the will; it may be altered by the testator after its preparation;
and it may be a writing that has no significance apart from its effect on the
dispositions made by the will.

"Disposed of" personal property can be property that is sold for cash.
In CA no single item can be worth more than $5k and total cannot exceed
$25k

Acts of Independent Significance

UPC Section 2-512. Events of Independent Significance.
A will may dispose of property by reference to acts and events that have
significance apart from their effect upon the dispositions made by the will,
whether they occur before or after the execution of the will or before or after the
testator's death. The execution or revocation of another individual's will is such
an event.

EG, "I give the car I own at death to A and each of my employees gets
$1,000." The gifts are valid even if testator gets a new car or hires new
employees, but fires old ones.

Contracts Relating to Wills

A person may enter into a contract to make a will or a contract not to

revoke a will

To enforce the contract, the beneficiary must sue under contract law
and prove the contract was valid. Will is still probated, but beneficiary
can sue for breach.

Some states create constructive trusts to prevent unjust enrichment,

others award damages

Many states require that contracts for wills comply with statute of
frauds, must be in writing and signed. (see below)

Section 2-514. Contracts Concerning Succession.

A contract to make a will or devise, or not to revoke a will or devise, or to die
intestate, if executed after the effective date of this Article, may be established
only by (i) provisions of a will stating material provisions of the contract, (ii) an
express reference in a will to a contract and extrinsic evidence proving the terms
of the contract, or (iii) a writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a presumption of a
contract not to revoke the will or wills.
Contracts Not to Revoke a Will

Joint Wills (bad) - Instrument executed by two people as the will of

both. Will is probated twice

Mutual Will - Separate wills that contain reciprocal or mirror-image

provisions

Joint and mutual will - Testators make reciprocal provisions that is

accompanied by an agreement not to revoke the will

Keith v. Lulofs - The mere fact that the provisions of two wills mirror
each other is insufficient to show an intent to make the provisions of the
wills irrevocable (majority rule).

Contract must be proved by clear and convincing evidence

Dead man Statutes - Prevent an interested party from testifying about

oral statements made by the deceased to support his claim against the
estate (no longer that common. Probably not important)

Wills: Capacity and Contests pt 1

Capacity to make a Will - MENTAL CAPACITY

Presumption is that person is of sound mind when making a will and

must be rebutted

R3d
The testator . . . must be capable of knowing and understanding in a
general way [1] the nature and extent of his or her property, [2] the natural
objects of his or her bounty, and [3] the disposition that he or she is making
of that property, and must also be capable of [4] relating these elements to
one another and forming an orderly desire regarding the disposition of the
property.

The test for testamentary capacity is one of capability, not actual

knowledge
Average intelligence not required

In re Wright's Estate - A few isolated acts of abnormal behavior

cannot satisfactorily rebut an inference of testamentary capacity.

In most states, making a will requires less mental ability than making a
contract or an irrevocable lifetime gift

To make irrevocable lifetime gift, must have capacity to make a will

and must be capable of understanding the effect the lifetime gift may have
on the future financial security of the donor and anyone who may depend
on the donor

Substantial authority holds that a person under a conservatorship

may have testamentary capacity to make a will (because they may have
wrote it during a lucid interval), but a lawyer should consult with the
conservator before preparing the will

Wilson v. Lane - To prove lack of testamentary capacity, the party

challenging the will must present proof showing that the testators
condition prevented her from having a decided and rational desire as to the
disposition of her property.

UPC 3-407 (MAJORITY RULE) - Person contesting the will has burden
of persuasion

Minority rule - proponent has burden of persuasion

Insane Delusion

Insane Delusion Rule - An insane delusion is an irrational belief.

Insane delusion is one the testator adheres to against all evidence and
reason to the contrary. To prevail, must show (1) the testator labored under
an insane delusion and (2) the will or a part of it was the product of an
insane delusion

If there's evidence to support the delusion, the will is not invalidated

because it's seen as a mistake.

Where a testatrix has some actual grounds for the belief which she
has, though regarded by others as wholly insufficient, the mere
misapprehension of the facts or unreasonable and extravagant
conclusions drawn there from do not establish the existence of such a
delusion as will invalidate her will

In re Strittmater's Estate - Where a testators distribution of her

estate is the product of insane delusions, the will must be set aside.

Breeden v. Stone - To invalidate a will for lack of testamentary

capacity due to insanity, the contestant bears the burden of proving that
the testator was not of sound mind and to the extent testator suffered from
insane delusions, the delusions impacted the distribution of the estate.

Undue Influence

Undue Influence (r. 3d) - A donative gift is procured by undue

influence if the influence exerted over the donor overcame the donor's free will
and caused the donor to made a donative transfer that the donor would not
otherwise have made

Pertains to vulnerable testators that require protection

Under influence may be found IF:
The donor was susceptible to undue influence;
The alleged wrongdoer had an opportunity to exert undue
influence;
3.
The alleged wrongdoer had a disposition to exert undue
influence; AND
4.
There was a result appearing to be the effect of undue influence
1.
2.

Circumstantial evidence is admissible if it tends to prove or disprove

one of these elements

In most jurisdictions a contestant is entitled to the presumption of

undue influence if he shows that there was a confidential relationship

between the alleged influencer and testator AND one or more

suspicious circumstances are present.

Estate of Lakatosh - Undue influence is presumed if the wills proponent

enjoyed a confidential relationship with the decedent and received the bulk of
the decedents estate, and the decedent suffered from a weakened intellect.

In re Estate of Reid - Undue influence is presumed from the existence of a

confidential relationship.

Notes:

Undue influence involves a question of capacity and concerns the

conduct of third parties, so both can be grounds to invalidate the will

A lawyer should not assist a client in executing a will, trust,

agreement, or other dispositive instrument if he reasonably believes
that the client lacks the requisite capacity. Lawyer can assist
someone whose capacity is borderline, but should preserve evidence
regarding the client's testamentary capacity

A lifetime trust procured by undue influence is voidable by the

transferor. To prevent unjust enrichment of the transferee, the
property is recoverable in restitution by way of a constructive trust.
At the death of the transferor, the claim passes to the fiduciary of the
estate who typically has standing to sue as did the decedent prior to
death (UPC 3-703(c ) (1990)).

Recovered property is included in the estate of the decedent

and distributed accordingly

Presumptions and Burden Shifting in Undue Influence Cases

Confidential Relationship

Confidential Relationship - A trusting relationship. Law requires the person

to be other-regarding because of potential for abuse. Relationships include:

Fiduciary Relationship

Reliant relationship - Question of fact where contestant must establish a

relationship based on special trust and confidence.

donor was accustomed to being guided by the advice or judgment of

the wrongdoer, or was justified in placing confidence in the belief
that the wrongdoer would act in the best interest of the donor (eg,
doctor-patient, financial advisor-customer)

Dominant-Subservient relationship - Contestant must establish that the

donor was subservient to the wrongdoer's dominant influence.

EG caregiver-ill person and adult child-ill/feeble adult parent)

Suspicious Circumstances

In addition to a confidential relationship, contestant must also establish the

existence of suspicious circumstances surrounding the preparation,
formulation, or execution of the donative transfer

Often shown by demonstrating that the influencer procured the will. In

Lakatosh suspicious circumstances were that confidant received bulk of
estate and weakened mental state of decedent

R. 3d factors that have indication of suspicious circumstances:

Extent to which the donor was in a weakened conditioned, physically,

mentally or both, and therefore susceptible to undue influence

Extent to which the wrongdoer participated in the procurement or

preparation of the will or will substitute

Whether the donor received independent advice from another

attorney or from another competent and disinterested advisor in
preparing the will or will substitute

Whether the will or will substitute was prepared in secrecy or haste

Whether the donor's attitude toward others changed by reason of his

or her relationship with the wrongdoer

Whether there was a deiced discrepancy between the new and

previous wills or will substitute of the donor

Whether there was a continuity of purpose running through former

wills or will substitutes indicating a settled intent in the disposition of
his or her property; and

Whether the disposition of the property is such that a reasonable

person would regard it as unnatural, unjust, or unfair (eg whether the
disposition abruptly and without apparent reason disinherited a
faithful and deserving family member)

Presumption and Burden Shifting

In most states, when presumption of undue influence is established, the

burden shifts to proponent to come forward with rebuttal evidence (eg, good
faith). In the absence of such evidence, the contestant is entitled to JML

Punitive Damages - Rarely awarded in will contests. Possible when clear and
convincing evidence shows the acts or omissions that caused harm were done
with actual malice or wanton and willful disregard of persons who may
foreseeably be harmed

Lipper v. Weslow - In addition to showing that a beneficiary of the will had the
motive and opportunity to unduly influence the testator, contestants of a will
must also prove that the will, as written, reflects that the beneficiarys wishes
were substituted for the wishes of the testator.

No Contest Provision - If anyone challenges the will, they're disinherited. Tricky

situation, challenge and maybe get more or be content with less and don't
challenge

Bequests to Lawyers and Fiduciary Appointments

Many courts hold that a presumption of undue influence exists when a

lawyer receives a bequest under a will that he drafted UNELSS he's a close
relative. Presumption can be rebutted by clear and convincing evidence

In CA, a lawyer can't receive a bequest at all unless the testator is related
by blood or marriage, or the testator consults with an independent lawyer
and receives a "certificate of independent review"

The MPRC takes the same position. If not related, lawyer who
drafts the will should have an independent review done to avoid a
potential ethical violation. (MRPC 1.8)

Even if he's related, should still exercise care if the gift is

disproportionately larger in relation to other gifts to people who
are similarly related

Fiduciary Appointments

MRPC 1.8 - Rule does not prohibit a lawyer from being a fiduciary (eg, executor
of the estate), but the appointment is subject to conflict of interest rules when
there's a significant risk that the lawyer's interest in obtaining appointment will
materially limit his independent professional judgment concerning the choice
of executor or other fiduciary. In obtaining informed consent, lawyer should
advise the cient concerning the nature and extent of his financial interest in
the appointment, as well as the availability of alternative candidates for the
position

Lawyer should explain the roles and duties of a fiduciary, the ability of a
lay person to serve as a fiduciary with legal and other professional
assistance, and the comparative costs of appointing the lawyer or another
person or institution as a fiduciary

Planning for and Avoiding a Will Contest

Warning Signs

Warning signs include instances where you have an eccentric older person
whose testamentary scheme departs significantly from the previous plan;
multiple or blended families; substantal gifts to caretakers and other nonrelated folks who are not liked or trusted by the family; etc.

Most common warning sign is an unnatural disposition such as omission of a

close relative or unexplainable distinction amongst family members with a
similar relationship to the decedent

Strategies

Extra precautions in executing the will - using friends or community leaders

who will present well in court; should have the testator explain his plan to the
witnesses and reasoning behind it before signing the will; and possibly have
them sign affidavits regarding what they saw, heard, and talked about at the
time of the execution

Lawyer should have client send him a letter setting forth the dispositions she
wishes to make and reasons why. Then the lawyer should send back a letter
explaining the consequences.

Some lawyers video the discussion between him and the client regarding the
dispositive plan. Client may look old and feeble though, so dictation to a
stenographer is a good alternative

When the testator wants to favor one child at the expense of another, a family
meeting is a good idea so the testator can explain the disposition and rationale

Professional examination - Examination prior to execution of a will can be

helpful to disclaim incapacity contests. If she has a sound history of mental
health, the family doctor's examination should suffice, but a psychiatric expert
may be warranted if they've been known to have mental health issues

No contest clause might help (like Lipper)

Inter vivos trust - Client can create and fund an inter viios trust, but the trust
can be challenged. Although they can be challenged, it's difficult to upset the
trust if the settlor had a course of dealings with the trustee to evidence
capacity and the absence of influence.

States are split on whether a will contest can be held before a jury, but
almost every states says that a trust dispute must go before a judge

Inter vivos gifts - Donor is alive and can testify in defense of her sanity and
absence of influence

Writing checks to potential contestants - Can ask on cross why they cashed
check if they thought donor lacked capacity or was unduly influenced

Ante Motem or Living Probate - AL, AK, NV, ND, and OH permit probate of a will
during the testator's life. Testator can institute an adversarial proceeding
during his life to declare validity of the will. (rarely happens though)

Mediation or arbitration could also resolve potential disputes

Duress

Duress - "A donative transfer is procured by duress if the wrongdoer

threatened to perform or did perform a wrongful act that coerced the donor
into making a donative transfer that the donor would not have otherwise
made."

Latham v. Father Divine - Where a beneficiary of a presently executed will

prevents the testator from revoking that will and executing a new will in favor
of another beneficiary by fraud, duress or undue influence, and the testator
dies with the original will in effect, the property devised under that will to the
wrongful beneficiary is held in constructive trust for the intended beneficiaries
of the unexecuted will.

When a person is prevented from executing a subsequent will (like above),

equitable relief must be sought. Beneficiary must seek a constructive trust in
an action in restitution to prevent unjust enrichment

Fraud

Fraud - "A donative transfer is procured by fraud if the wrongdoer knowingly

or recklessly made a false representation to the donor about a material fact
that was intended to and did lead the donor to make a donative transfer that
the donor would not have otherwise made."

Fraud is hard to prove. Claims of fraud usually involve fraud in the

execution or fraud in the inducement

Fraud in the Execution - Occurs when a person intentionally misrepresents

the character or contents of the instrument signed by the testator, which does
not in fact carry out the testators intent

Fraud in the Inducement - Occurs when a misrepresentation causes the

testator to revoke or execute a will, refrain from executing or revoking a will, or
to include particular provisions in the wrongdoer's favor.

EG, signing a document that the wrongdoer says is the will, but is a
different will

Different from undue influence. In this case, the testator still has free
agency and freely makes an estate plan, does so as a result of being
misled. Undue influence, on the other hand, testator makes a new will
because the influence overbears his free will

A donative transfer is invalid for fraud ONLY IF the donor would not have
made the transfer if he knew the true facts.

Big problems with the idea of how we can know what they would have
done but for the fraud

Tortious Interference with an Expectancy

R. 2d recognizes intentional interference with an expected inheritance or gift

as a valid cause of action

Plaintiff must prove that the interference involved tortious conduct, which
includes undue influence, fraud, or duress. This cause of action CANNOT be
invoked if the challenge is based on testator's mental incapacity.

Almost half the courts recognize this new tort

Schilling v. Herrera - An injured party may establish the tort of intentional

interference with an expectancy of inheritance by showing that tortious
conduct resulted in the loss of his expectancy and such tortious conduct
precluded the injured party from seeking relief in the probate court.

(majority rule) A plaintiff must pursue probate remedies if they are

adequate. Failure to do so bars a later suit in tort

Interference-with-inheritance claims are not challenges to the probate of a will,

but seek damages from a defendant who wrongfully interferes with the
plaintiff's expected inheritance

Strategic reasons for interference-with-inheritance claim instead of arguing in

probate:
1.
Interested witnesses can't testify in probate in some jurisdictions
2.
SOL is longer with torts

Probate Exception to Federal Jurisdiction

The probate exception to federal jurisdiction prohibits federal

courts from entertaining a suit that encroaches on the traditional jurisdiction of
state courts.
o

Exception: If the action for damages in tort will not interfere with
the probate proceedings or the probate's control over the estate.
Jurisdictional requirements must still be met. If all these conditions are
met, it can be litigated in federal court.

Mistakes or Ambiguous Language in Wills

Plain meaning/No extrinsic Evidence Rule - Extrinsic evidence

admitted for certain ambiguities, but the plain meaning of the words will
cannot be disturbed by evidence that the testator intended another meaning

No reformation Rule - Courts may not reform a will to correct a

mistaken term to reflect what the testator intended to say

Both this rule and plain meaning rule followed in MAJORITY of the
states

Mahoney v. Grainger - Testimony as to a testators intention in using

certain language in her will may not be admitted to prove the meaning of the
language unless the language is ambiguous and susceptible to different
meanings.

In re Estate of Cole

Patent ambiguity - Evident on face of the will (eg, "two hundred

thousand dollars ($25k)")
Traditional view - extrinsic evidence not admissible ot clarify a patent

ambiguity.

Modern trend - Courts more inclined to admit extrinsic evidence

to resolve a patent ambiguity.

Latent Ambiguity - Manifests itself only when the terms of the will are
applied to the facts. Two types of latent ambiguities:
Equivocation - When two or more persons or things fit the description

exactly (eg "I devise to my niece Alicia" but testator has 2 nieces
named Alicia)

Personal Usage - Another type of equivocation where testator

used a term in an idiosyncratic manner. (E.G., Testator often
refers to someone as a nickname like"Mrs. Moseley.")

No Exact Fit - A description in a will does not exactly fit a person or

thing.

EG, "I leave my stuff to Mrs. Hess at 132 paper st." Mrs. Hess,
who lived at address with earlier husband now divorced from
him and doesn't live there. Next wife claims she's the "Mrs.
Hess" in the will, but never lived at the address. Court ruled in

favor of earlier wife who lived in that address after extrinsic

evidence was admitted over new wife's objection

COURTS ALMOST ALWAYS ALLOW EXTRINISIC EVIDENCE TO CLEAR UP

LATENT AMBIGUITIES

Modern trend: Courts are increasingly more inclined to admit extrinsic

evidence to resolve latent and patent ambiguities. Some courts have
abandoned the patent/latent distinction altogether

Ad Hoc Relief for Mistaken Terms

False positive/False negative - No reformation rule guards against a

spurious finding of a mistake, or a "false positive," but comes at a price. Price
is that the court will deny relief even in the face of overwhelming evidence of
mistake or actual intent, creating "false negatives".

To avoid this harsh result, courts sometimes correct a mistake under

guise of using extrinsic evidence to construe a supposedly unambiguous
term. Courts in next cases deny power to reform a will, but prefer extrinsic
evidence of actual intent over the contrary but mistaken language in the
will.

Arnheither v. Arnheiter - Where a will describes property or a

beneficiary by several characteristics, and nothing or no one matching all of
those characteristics exists, then the less essential characteristics of the
description may be disregarded as long as the remaining characteristics match
an existing person or property.

False Demonstratio non nocet Pinciple - "mere erroneous description

does not vitiate"
Where a description of a person or thing consists of several particulars

and all of them don't fit one person or thing, less essential particulars
may be rejected, provided the remainder of the description perfectly
fits

In re Gibbs Estate - Where mistaken identification of property or a

beneficiary seems to frustrate the testators intent, extrinsic evidence is
permitted to show whether there was a mistake, and if a mistake is shown to
be the cause, the mistaken details will be disregarded.

Openly Reforming Wills for Mistake

A small but growing number of courts are willing to reform a mistaken

term in a will, and to do so openly. Extrinsic evidence of mistake is admissible,
and if proved by clear and convincing evidence, will can be reformed to reflect
the testator's actual intent

EG, In re Snide mirror image will where court said he court could sub
the name "Harvey" wherever the name "rose" appeared and vice versa
UPC 2-805 (2008, as amended 2010)

The court may reform the terms of a governing instrument, even if

unambiguous, to conform the terms to the transferor's intention if it is proved
by clear and convincing evidence what the transferor's intention was and that
the terms of the governing instrument were affected by a mistake of fact or
law, whether in expression or inducement.

In Re Estate of Herceg - If clear and convincing evidence establishes

the testator's intent was affected by a mistake, the will can be reformed.

R3d - Unambiguous language is entitled to a strong (but not

irrebuttable) presumption of correctness. Can only be corrected if clear and
convincing evidence establishes that the donor's intent differed from the terms
in the document

Ambiguous document is not entitled to presumption of correctness

because the ambiguity establishes that the document does not reflect the
testator's intent. To resolve ambiguities, donor's intention need only be
established by preponderance of the evidence
Again R3d is the minority, but growing view that the will can be

reformed.

Inter vivos trusts, deeds of gift, and other nonprobate transfers CAN be
reformed

Uniform Trust Code 415 - Authorizes reformation of a trust for

mistakes, including testamentary trusts (followed in half the states).

Death of Beneficiary Before Death of Testator

Stale Will Doctrine - Revokes bequest to a spouse on divorce

If the testator's intent is not evident, the court will apply the rules of
construction that are meant to implement the probable intent of the typical
testator

Applicable when beneficiary predeceases testator or there's a change

in the testator's property

Lapsed and Void Devises

If the devisee does not survive the testator, the devise fails and is said
to have lapsed

Common law rule is that a gift made by will is subject to a condition

that the devisee survive the testator, unless the testator specifies
otherwise

Antilapse statutes - Nearly all states have antilapse statutes that,

under certain circumstances, substitute another beneficiary for the
predeceased devisee.

Common law rules that apply if the will does not provide otherwise
and an antilapse statute is not applicable:

Specific of General Devise - If a specific or general devise

lapses, the devise falls into the residue
EG, T devises a watch (specific devise) to A and $10k (general
devise) to B and residuary to C. If A and B predecease T under
common law, the water and 10k fall into residue and go to C
Residuary Devise (aka the no-residue-of-a-residue rule ) - If
the residuary devise lapses, the heirs of the testator take by
intestacy. If only a share of the residue lapses, such as when
one of two residuary devisees predecease the testator, at
common law the lapsed share passes by intestacy to the
testators remaining heirs rather than the remaining
residuary devisees

In most states, this rule has been overturned by statute or

judicial decision, so in most states, if devisee predeceases T
their share will pass to the devisee's descendants, not through
intestacy

Class Gift - If a devise is to a class of persons, and one member of

the class predeceases the testator, the surviving members of the
class divide the gift.

EG, devise of $10k to A's kids (B and C). If B dies before the
testator, C gets all $10k

Void Devise - If the devisee is already dead at the time the will is
executed, or the devisee is a car or dog or some ineligible taker, the
devise is VOID. Same rules that apply to a lapsed devise

In re Estate of Russell - Extrinsic evidence pertaining to the

circumstances surrounding creation of a will may be considered by the court in
order to determine whether the terms of the will are susceptible to more than
one meaning, and only in such case may extrinsic evidence be offered to prove
the meaning intended by the testator.

Often cited for its abrogation of the no extrinsic evidence rule. Court
held ext. evidence should be admitted so that the judge may be placed in
the position of the testator whose language he is interpreting. Only then
can the judge determine if the terms of the will are clear and definite.
So in this case, ext. evidence showing Roxy was an ineligible beneficiary
was properly admitted.

Antilapse Statutes

Antilapse statutes substitute beneficiaries (usually the dead

beneficiaries decedents) if certain requirements are met

UPC 2-605 (typical of most antilapse statutes - If a predeceased

devisee is related ot the testator in a prescribed way and is survived by one or
more descendants who also survive the testator, those descedents are
substituted for the predeceased devisee
15-2-605. Anti-lapse -- Deceased devisee -- Class gifts.
If a devisee who is a grandparent or a lineal descendant of a grandparent of
the testator is dead at the time of execution of the will, fails to survive the
testator, or is treated as if he predeceased the testator, the issue of the
deceased devisee who survive the testator by one hundred twenty (120) hours
take in place of the deceased devisee and if they are all of the same degree of
kinship to the devisee they take equally, but if of unequal degree, then those
of more remote degree take by representation. One who would have been a
devisee under a class gift if he had survived the testator is treated as a
devisee for purposes of this section whether his death occurred before or after
the execution of the will.

Presumed intent - Idea that for certain predeceasing devisees, the

testator would prefer a substitute gift to the devisee's descendants rather than
for the gift to pass in accordance with a common law of lapse (theory behind
antilapse statutes

EG, T devises 1/2 estate to son A and 1/2 to daughter B. B predeceases

T and has a child, C. At common law, B's devise would lapse and, being a
residuary devise, pass by intestacy. 1/2 to A and 1/2 to C giving A 3/4 and

C 1/4. If no residue-of-a-residue does not apply B's share goes to A,

leaving C with nothing. If an antilapse statute is in place A gets half and C
gets half

Scope of antilapse statute - An antilapse statute applies to a lapsed

devise ONLY if the devisee bears the particular relationship to the testator as
specified by the statute. Some statutes only apply to descendants of testator.
Others apply antilapse statutes to descendant's of the testator's parents or
grandparents, or to all kindred of the testator and occasionally to kindred of
the testator's spouse

UPC 1990 adds a devise to a stepchild

EG, T devises home to niece, B and residue of estate to A. B

predeceases , leaving child C, who survives T. Under UPC antilapse

statute, C takes T's home because B is a descendant of T's
grandparent.
If the antilapse statute only applies to T's descendant's, C does not
take anything. The lapsed devise falls into residue and is given to A.
Default Rules

Because antilapse statutes are designed to implement presumed

intent, they are default rules that yield to an expression of the testator's actual
intent that is contrary to the statute

EG, if terms of will say "my estate goes to A and B. If A or B or both

predecease me, I give the predeceasing child's share to F." If B dies and
leaves a child, only A and F take the estate

The above example shows that the testator's intent is contrary to the
antilapse statute and it's expressly stated to devise predeceasing child's share
to F. If a will is not clear, courts sometimes struggle with the question of
whether it imposes a condition of survival that precludes application of the
antilapse statute.

EG, T's will devises entire estate to "my living brother's and sisters
A,B,C,D, and E to share and share alike." A, B, and C die but each has 1
kid. Court in Allen v Talley said that this language precluded the antilapse
statute, conditioning survivorship as a preclusion of the antilapse statute.
So D and E take because they survived. Nephews and nieces left out

Words of Survivorship

UPC 2-603 (b)(3) provides that "words of survivorship, such as in a

devise to an individual "if he survives me," or in a devise "to my surviving
children" are NOT, in the absence of additional evidence, a sufficient indication
of an intent contrary to the application of this section [antilapse statutes]

EG, T devises Blackacre to "my son, A, if he survives me" and devises

residue to his wife, W. Sidney dies before T, leaving daughter, B. Issue is
whethe r"if he survives me" imposes a condition of survivorship. Majority
of courts hold that "if he survives me" precludes the antilapse
statute. Under UPC 2-603(b), however the "if he survives me"
term is not enough to impose a condition of survivorship, and the
antilapse statute applies, substituting B for her father.
UPC 2-603(b)(3) has only been adopted in 7 states.

7 states (including AZ) have enacted modified versions that

preserve the majority rule that words of survivorship preclude
antilapse statutes.

BUT UPC 2-603(b)(3) is endorsed by R3d and may influence

outcomes in states that have yet to adopt it

R3d - comment f "Antilapse statutes establish a strong rule

of construction, designed to carry out presumed intention.
They are based on the constructional preference against
disinheriting a line of descent . . . . Consequently, these
statutes should be given the widest possible sphere of
operation and should be defeated only when the trier of
fact determines that the testator wanted to disinherit the
line of descent headed by the deceased devisee.

Tutolo v. Tietjen - Mere survivorship language is an insufficient

indication that the testator intended to negate operation of the antilapse
statute.

Burden on those trying to avoid the antilapse statute to show that the
testator wanted to disinherit the line of descent headed by the deceased
devisee

Majority Rule(?) - Words of survivorship are sufficient to negate

application of an antilapse statute (ask Becker on this one). Seems like
this is majority rule though

Class Gifts

If a class member predeceases the testator, the surviving members

of the class divide the total gift, including the deceased member's share,
unless an antilapse statute applies.

Class gifts arise when testator is group-minded. EG, "I want my estate
to go to my nieces and nephews
A gift to named beneficiaries who form a natural class may be deemed

as a class gift if the court decides T would have wanted the survivors

to divide the share of predeceasing beneficiary rather than for it to

lapse
R3d of Property: Wills and Other Donative Transfers

13.1 - Class Gift Defined; How Created

(a) A class gift is a disposition to beneficiaries who take as members of a
group. Taking as members of a group means that the identities and shares of
the beneficiaries are subject to fluctuation.
(b) A disposition is presumed to create a class gift if the terms of the
disposition identify the beneficiaries only by a term of relationship or other
group label. The presumption is rebutted if the language or circumstances
establish that the transferor intended the identities and shares of the
beneficiaries to be fixed.
13.2 - Class Gift Distinguished from Disposition To Beneficiaries Whose
Identities and Shares Are Fixed; How Created
(a) A disposition does not create a class gift if the identities and shares of the
beneficiaries are fixed.
(b) In determining whether a disposition is to beneficiaries whose identities
and shares are fixed, the following rules apply:
(1) If the terms of a disposition expressly fix the identities and shares of
the beneficiaries, the disposition is to beneficiaries whose identities and
shares are fixed.
(2) If the terms of a disposition identify the beneficiaries (i) by their names
or (ii) by a term of relationship or other group label and either by name or
number or by name and number, the disposition is presumed to be to
beneficiaries whose identities and shares are fixed. The presumption is
rebutted if the language or circumstances establish that the transferor
intended the beneficiaries to take as a class, i.e., as members of a group.

Dawson v. Yucus - For a devise to be defined as a class gift, the

number of beneficiaries and the size of the shares must be uncertain,
depending on the number of class beneficiaries surviving at the time of the
testators death.

Basically a group label (eg, my nephews) and dynamic shares that vary
in accordance with the size of the group (eg, new nephew, less shares for
the rest) are necessary to find a class gift
Under R3d the facts above (group and dynamic shares) are

presumptions against a class gift, but can be rebutted by language or

circumstances indicating a class was intended.

Application of Antilapse Statutes to Class Gifts

Almost all states apply their antilapse statutes to a single-generation

class gift such as "children" or "siblings"

In states where the statute is unclear, courts reason antilapse statutes

were designed to carry out a typical testator's intent, and the typical testator
would prefer a deceased class member's share to go to the beneficiary's
descendants rather than to surviving members of the class.

In a few states (minority view), the antilapse statutes do not apply to

dispositions to class members who died before execution of the will.
These states assume that the testator did not have the dead class
member in mind and did not want him to take

If antilapse statute applies, descendants of the predeceased take. If

not refer to the rules

See 372, figure 5.5 to see a good idea of how class gifts are applied

Changes in Property After Execution of Will

Ademption by Extinction

Ademption (take away) by Extinction - Specific devise of an item of

property that the testator sells or gives away before death

Traditional rule: gift is taken away when testator sells or gives away
the property before death
EG, will devises Blackacre to son. Testator sells Blackacre, buys

Whiteacre. Son does not get Whiteacre at death

EXCEPTION: Intent theory: If beneficiary can show that the

testator would have wanted him to have a replacement or cash value of
the original item, he might be entitled to either or
EG, in the above example, devisee may be entitled to whiteacre if he

can show that T intended him to take Whiteacre as a replacement to

Blackacre

Ademption does NOT apply to general, demonstrative, or residuary

devises

General devises - Testator intends to confer a general benefit and

not give a particular asset
EG, I give $100k to A. If there is not $100k in cash in testator's estate

at death, the legacy is not adeemed; other property must be sold to

satisfy A's general legacy

Specific Devise
Demonstrative Devises - Hybrid of general and specific devise. It's a
general devise payable from a specific source
EG, Testator gives "$100k to B to be paid from sale of my Apple stock."

If sufficient stock is owned to supply the $100k the executor must

comply with direction to sell the stock. If the testator does not own
$100k worth of Apple stock the devise is NOT adeemed. Other
property must be sold to raise the full $100k

Residuary Devises - Conveys that portion of the testator's estate not

otherwise effectively devised by other parts of the will, such as a devise
to A of "all the rest, residue, and remainder of my property and estate"

Identity Theory of Ademption - Traditional rule saying that if a

specifically devised item is not in testator's estate, the gift is extinguished.

Intent Theory - Newer rule saying that if the specifically devised

item is not in the testator's estate, the beneficiary may be entitled to the
replacement or cash value of the OG item, if the beneficiary can show that the
testator would have wanted it that way

In re Estate of Anton - Where a specific devise is removed from an

estate by the act of an attorney-in-fact that was not known or assented to by
the testator, the devise is not adeemed, i.e., cancelled, to the extent that
identifiable proceeds remain in the possession of the estate.

In states following identity theory (specifically devised item not in the

estate is extinguished), escape hatches have been developed to avoid
ademption in cases, like Anton, where property is not in the estate
because of an accident or actions of another, or where facts indicate a
high likelihood that the testator did not intend for an ademption

Many courts and UPC 2-608(a) (1969 rev. 1987) give the devisee any
unpaid amount of a condemnation award for the property or any unpaid
casualty insurance proceeds after the property has been destroyed.
EG, T leaves his car and rolex to son, A. T dies in car wreck. A get rolex

and insurance proceeds from the car

Some courts will avoid ademption by classifying the gift as a general

devise or demonstrative rather than specific
EG, "I give to A 100 shares of Tigertail stock." Court may consider this

a general devise if Tigerstail was a widely held stock traded on a

major exchange. Thus A would be entitled to the value of 100 shares
of Tigerstail at T's death.

If he said MY 100 shares of Tigerstail though, most courts would

consider this a specific devise and ademption would be
applicable

Another way to get around ademption is classifying the inter vivos

disposition as a change in form, not substance. Most courts hold that a
corporate merger or reorganization is a change in form, not substance.
EG, "I devise 100 shares of MY Tigerstail to A." Tigerstail merges with

Lionshare becoming Lionstail Inc. A is entitled to 100 shares from

Lionstail
Food for thought: T devises "my brokerage account in First National

Bank" to A. After executing the will, she transfers the funds to a new
brokerage account at Second national bank. Is this a change in form
or substance?
NE said this was a change in form, no ademption
TX said this was a change in substance, adeemed

1990 UPC 2-606 abandons identity theory and adopts the intent
theory. It also provides exceptions for replacement property (2606 (a) (5)) and
for the pecuniary value of the property disposed of during the testator's

lifetime if the devisee can show that the testator did not intend ademption (2606(a)(6)).

UPC Section 2-606. Nonademption of Specific Devises; Unpaid

Proceeds of Sale, Condemnation, or Insurance; Sale by Conservator or
Agent.
(a) A specific devisee has a right to specifically devised property in the
testator's estate at the testators death and to:
(1) any balance of the purchase price, together with any security
agreement, owed by a purchaser at the testators death by reason of sale
of the property;
(2) any amount of a condemnation award for the taking of the property
unpaid at death;
(3) any proceeds unpaid at death on fire or casualty insurance on or other
recovery for injury to the property;
(4) any property owned by the testator at death and acquired as a result
of foreclosure, or obtained in lieu of foreclosure, of the security interest for
a specifically devised obligation;
(5) any real property or tangible personal property owned by the testator
at death which the testator acquired as a replacement for specifically
devised real property or tangible personal property; and
(6) if not covered by paragraphs (1) through (5), a pecuniary devise equal
to the value as of its date of disposition of other specifically devised
property disposed of during the testators lifetime but only to the extent it
is established that ademption would be inconsistent with the testator's
manifested plan of distribution or that at the time the will was made, the
date of disposition or otherwise, the testator did not intend ademption of
the devise.
(b) If specifically devised property is sold or mortgaged by a conservator or by
an agent acting within the authority of a durable power of attorney for an
incapacitated principal or a condemnation award, insurance proceeds, or
recovery for injury to the property is paid to a conservator or to an agent
acting within the authority of a durable power of attorney for an incapacitated
principal the specific devisee has the right to a general pecuniary devise equal
to the net sale price, the amount of the unpaid loan, the condemnation award,
the insurance proceeds, or the recovery.
(c) The right of a specific devisee under subsection (b) is reduced by any right
the devisee has under subsection (a).

Burden is on the party opposing ademption (party seeking pecuniary

value of devised property not in the estate)

Stock Splits and the Problem of Increase

Traditional approach - Court asks whether the benefit was specific or

general. So if T devises "100 shares of stock to A" and court found that T
intended to bequeath particular shares in his possession to A, it was deemed
specific and A would get 100 shares + the shares acquired by the split. If court
found it to be a general benefit, A only receives 100 shares

Modern approach - When stocks split, subject to showing of contrary

intent, a devisee of stock is entitled to additional shares received by the
testator as a result of the split.

UPC 2-605(a)(1) (1990) treats stock dividends the same as stock splits:
Beneficiary gets them along with the others (absent showing of contrary
intent)

Satisfaction of General Pecuniary bequests

Doctrine of Satisfaction (aka ademption by satisfaction) - May be

applicable if testator makes an inter vivos transfer to a devisee after executing
a will. If testator is parent of the beneficiary, and after executing the will he
transfers to the beneficiary property of similar nature to that devised by the
will, there is a rebuttable presumption that the gift is in satisfaction of the
devise made by the will (akin to advancements

EG, T devises $50k to son, A and residuary to daughter, B. After

executing will, T gives $30k to A. The preusmption is the $30k was a
partial satisfaction of the legacy, thus entitling A to $20k when T dies

DOCTRINE OF SATISFACTION USUALLY APPLIES TO GENERAL

PECUNIARY BEQUESTS BUT NOT SPECIFIC BEQUESTS

When a specific gift is devised to a beneficiary, but is given to him

during testators lifetime, the gift is adeemed by extinction, NOT satisfaction

Some states have enacted statutes requiring that the intention of a

testator to adeem by satisfaction be shown in writing, as under UPC 2-609,
paralleling the UPC rule on advancements (UPC 2-109)

Exoneration of Liens

Exoneration of Liens Doctrine - if a will makes a specific disposition

of real or personal property that is subject to a mortgage to secure a note on
which the testator is personally liable, it is presumed the testator wanted the
debt to be paid out of the residuary of the estate

Some states have enacted statutes reversing the common law rule of
exoneration of liens (as Under UPC 2-607 (1990))

Abatement

Abatement - Abatement problem arises if an estate lacks sufficient

assets to pay the decedent's debts as well as his devises.

In the absence of how devises will abate (eg, will says if I owe too
many debts, take it away from my aunt's share), devises will abate in the
following order:

Residuary devises reduced first

General devises are reduced second
Specific and demonstrative devises are last to abate and are reduce
pro rata (in proportion)
EG, T devises $300k to charity B, $100k to charity A and residue to her

son A. She dies with $300k in estate. Under traditional rule, A takes
$0, B takes $225k, and C takes $75k.
BUT Under UPC 3-902 (1990) if the testamentary plan would have been

defeated by the ordinary order of abatement, the shares of the

distributees abate as may be necessary to give effect of the intention
of the testator

Trusts - Characteristics and Creation

Trust - A legal arrangement created by a settlor in which a trustee

holds property as a fiduciary for one or more beneficiaries

Trustee obtains legal title to the trust property, allowing him to deal
with third parties as the owner of the proper

Beneficiaries have equitable title to the trust property, allowing them

to hold the trustee accountable for breach of his fiduciary duties.
Trustee typically entitled to periodic distributions from trust income

and sometimes form the trust principal as well.

Trusts may be testamentary (created by a will). May be inter vivos

(created during settlor's lifetime) by declaration of trust or by deed of
trust, often as a will substitute to avoid probate.

Uniform Trust Code (UTC) - Adopted in half the states (including AZ)

Vocabulary

Settlor, grantor, or trustor - person who creates the trust

Inter vivos trust - created during settlor's life

May be revocable or irrevocable depending on intent of the settlor

Inter vivos can be created by declaration of trust where settlor declares
himself to be the trustee of certain property or by deed of trust where the
settlor transfers to the trustee the property to be held in trust

Testamentary trust - created by will. Once established, testamentary

trust is irrevocable

Inter vivos trusts do not pass through probate, but testamentary trusts
do

Trust property is distributed when settlor dies, or held in further trust in

accordance with the terms of the trust

Bifurcation of Ownership

Bifurcation: Trustee holds legal title to trust property, but beneficiaries

have equitable or beneficial ownership

Problems that arise from splitting legal and equitable ownership:

The effect on the rights of third parties with respect to the trust

property and the property of the trustee personally (asset

partitioning)

A trust cannot sue, be sued, hold property or transact in his own

name. Instead, the trustee sues, is sued, hold property, and
transacts

Although trustee has legal title to property, a personal creditor

for the trustee has no recourse agaisnt the trust property

EG: T devises Blackacre in trust to X to pay income to A for

life and the remainder to B on A's death. X contracts to sell
Blackacre to Y for $100k. Y may enforce the contract to buy
Blackacre by suit against X in X's capacity as a trustee

Trustee is two distinct legal persons: a natural person

contracting on behalf of himself, and an artificial person acting
on behalf of beneficiaries

The powers and duties of the trustee and the corresponding rights of

the beneficiaries with respect to the trust property and against the
trustee (fiduciary administration)
Trustee MUST act in accordance with his fiduciary duties

Owes a duty of loyalty to administer the trust solely in the

interest of the beneficiary

Duty of Prudence - Trustee held to an objective standard of

care and must administer the trust in a manner suited to
the purpose of the trust and the needs of the beneficiary

Subsidiary rules include

duty of impartiality
Duty not to comingle the trust property with trustee's
own property
Duty to inform and account to the beneficiaries

Remedies for breach of fiduciary duty

Compensatory damages to restore the trust estate and

trust distributions to what they would have been but for the
breach; and

Disgorgement by the trustee of any profit to the trustee

owing to the breach
Typically takes form of constructive trust to prevent
unjust enrichment

Trusts Compared with a Legal Life Estate

The creation of a trust usually involves creation of one or more

equitable future interests as well as a present interest in the income

Most life estates and future interests are equitable rather than legal
interests; they are created in trusts.

Legal Life Estate

A legal life tenant has no power to sell a fee simple unless such power
is granted in the instrument creating the life estate. Otherwise, to sell a fee

simple, all remainder-persons and reversioners must agree to the sale or the
life tenant must obtain judicial approval. Same pertains to mortgaging or
leasing the property

General Rule - Life tenant has a duty to pay taxes and keep the
property in repair

If life tenant goes into debt, the creditor can seize the life estate and
sell it. If debtor is a remainderperson, the creditor may be able to seize the
remainder and sell it

Equitable Life Estate - A trust

Difficulties for a legal life estate are resolved or mitigated by using a

trust. Trustee has broad authority to act promptly and allocate the costs and
benefits fairly between life and remainder beneficiaries
Eg Trustee can sell parts of the land to buy a new roof for the house

Business Trusts

Trusts are the preferred form of organization for mutual funds

(investment trusts) and trusts used in asset securitization and for employee
pension funds

Creation of a Trust
Creating a trust requires:
Intent by settlor to create a trust

1.
1.

Courts focus on the function rather than the form of the trust (no
specific words are necessary)

EG, "A transfer of property to X "for the use and benefit of A"
typically held to create a trust.

Ascertainable beneficiaries who can enforce the trust

Specific property to be held in trust
If the trust is testamentary or to hold land a writing may be required to
satisfy Wills Act or Statute of Frauds
Testamentary Trust - Created by a will

If testator's intent is not clearly stated, if must be inferred form the

language and structure of the will in light of all the circumstances

No specific words needed to create a testamentary trust either

Fact that the word "trust" is never used is immaterial

Eg Lux v. Lux - Words "Shall be maintained" and "shall not be

sold" are a strong indication of testators intent that the property
be managed by someone for a considerable period of time in
the future for the benefit of her sons

"A trust will not fail for want of a trustee"

This means that if the settlor intends to create a trust, just because the
trustee refuses appointment or dies does not mean there is no trust.

If the trustee refuses appointment or dies, and no successor is

named, the court will appoint a new trustee (usually the executor of the
estate in testamentary trusts)

UTC 402(a)(4) - Trustee must have active duties to perform. If trustee

has no duties, the trust is considered "passive" an dies. Passive trusts are rare

Precatory trusts - Precatory trusts are unenforceable dispositions.

Can't enforce them because the language used does not indicate that the
testator intended to create a trust.

(e.g., "I wish/hope/recommend that property be used by the devisee in

some particular manner")

Deed of Trust

Testamentary trust must satisfy the Wills Act

Inter vivos trust of land must satisfy the statute of frauds

Inter vivos trusts of personal property, however, requires no

formalities

Jiminez v. Lee - Transfer of property with the intent to vest the

beneficial ownership of the property in a third person gives rise to a trust and
imposes on the trustee duties to administer the trust solely for the benefit of
the beneficiary and account for trust income and expenditures

UTC 701 (2000) - Law does not impose a trustee upon a person
unless he accepts the appointment

Once appointed he cannot be released unless given consent of the

beneficiaries or the court

UPC 705(2000, rev. 2001) says trustee can resigned by giving 30

days' notice to all interested parties

Equitable Charge - Testator devises property to a person, subject to the

payment of certain money to a third person.

No fiduciary relationship in an equitable charge. Instead the equitbale

charge creates a security interest in the transferred property akin to a
debtor and secured creditor

Declaration of Trust

Under a declaration of trust, the settlor simply declares himself to

be the trustee of certain property. The settlor may also be a beneficiary of the
trust

EG, O makes written declaration of herself as trustee of $100k held at

a bank, to pay the income to herself for life, and then on her death to
pass to A. Even though O is the settlor, sole trustee, and sole income
beneficiary, this is a valid trust.

To have a valid trust, the trustee must owe a fiduciary relationship to

someone other than himself.

Declaration of trust of personal property requires no particular

formalities. The settlor only needs to manifest intention to hold certain
property in trust for an ascertainable beneficiary.

In contrast, an outright gift requires the donor to deliver the property

to the donee.

Delivery can be symbolic or constructive but some type of delivery is

required
Intention alone is NOT enough to perfect the gift.
BUT, if a donor manifests intention to make a gift and fails to deliver,

question may arise as to whether the manifestation can be

characterized as declaration of a trust (see below case)

Hebrew University Association v. Nye I - A person who declares

herself a donor does not make herself a trustee unless she expressly assumes
the obligations of a trustee.

Hebrew University Association v. Nye II - An inter vivos gift will be

valid despite lack of manual delivery where manual delivery was impracticable
and the donor took steps to transfer title that constitute constructive delivery.

Constructive delivery - Owner must do that which, under the

circumstances, is equivalent to actual delivery
Types of constructive delivery:> giving keys to a safe deposit box;

pointing out a hiding place for money; informal memorandum

R3d Property - "A gift of personal property can be perfected on

intent alone if the donor's intent to make a gift is established by clear and
convincing evidence."
Basically saying failure to deliver gift is excused under harmless error

rule if clear and convincing evidence shoes donative intent

Trust Property

Trust Property (aka res) - A trust cannot exist without trust property.
The res can be monetary or an interest in any type of property

Any interest that is transferrable can be put in trust. What is necessary

is a specifically identified interest in property

Unthank v. Rippenstein - Unless a donor expressly identifies

property as being held in trust for the purpose of making promised payments,
a trust does not arise from the promise to bind the donors estate to make
such payments.

Trust can be created by declaration of a trust without a transfer of

property. All that is necessary is that the settlor manifest intent to hold certain
of his property, over which he already has legal title, in trust for one or more
beneficiaries

The crucial distinction between a debt and a trust is whether the

recipient of the asset is entitled to comingle them with his own assets, and use
them for his own purposes

Resulting trust - Resulting trust is an equitable revisionary interest that

arises by operation of law in two situations:

If an express trust fails or makes an incomplete disposition; or

EG, failure of express trust:

O devises property to X in trust to pay income to A for life, and on A's

death to distribute the property to A's living descendant's. A dies
with no descendants. Because A's remainder fails, X holds the
remainder on resulting trust for O's heirs or devisees

If one person pays the purchase price for property and causes legal
title to the property to be taken in the name of another person who is not
a natural object of the purchaser's bounty
EG, Purchase Money resulting trust:

B purchases Blackacre with money supplied by A. Unless B can show

A intended to make a gift to B, B holds title to Blackacre on resulting
trust for A

In both examples the holder of the property is not entitled to the

beneficial interest, which is said to result (it reverts) to the transferor or to
the transferor's estate or other successor's in interest

Future profits and expectancies do no create trusts because there is no

specific property that can be held in trust

R3d of Trusts - "An expectation or hope of receiving property in the

future, or an interest that has not come into existence or has ceased to
exists, cannot be held in trust"

Ascertainable Beneficiaries

A private trust must have one or more ascertainable beneficiaries to

whom the trustee owes fiduciary duties and who can call the trustee to
account (UTC 402(a)(3)

Beneficiaries do not need to be ascertained when the trust is created

 EG, a trust by O to his children would be valid, even though he has no

children at the time of the trusts creation

If beneficiaries are too indefinite to be ascertainable, the trust will fail

for want of an ascertainable beneficiary

Clark v. Campbell - A valid private trust will not arise unless the
trust is made for the benefit of definite and ascertainable beneficiaries and is
to be distributed in specific proportions.

Power (UTC 402(c)) - A power in a trustee to select a beneficiary form

an indefinite class is valid. If the power is not exercised in a reasonable time,
the power fails and the property subject to the power passes to persons who
would have taken the property had the power not bene conferred

Pet and Other Noncharitable Purpose Trusts

Beneficiary principle is not absolute. It is not applicable to a charitable

trust, which instead must be for a charitable purpose.

UTC trend has been toward allowing enforceable trusts for pet
animals (408) and certain other noncharitable purposes (409), which
traditionally would be invalid for want of an ascertainable beneficiary

In re Searight's Estate - A bequest for the care of a specific animal is

valid as long as the person receiving the gift for the benefit of the animal
accepts the gift and agrees to carry out the wishes of the testator and the will
properly limits the period of time in which the bequest is to be carried out.

To accommodate desires for trusts for noncharitable purposes and for

pet animals in particular, two adaptations have been evolved

A common law honorary trust - In an honorary trust, the transferee is

under no obligation to carry out the settlor's stated purpose, but if the
transferee declines or neglects to do so, she hold the property upon a
resulting trust and the property reverts to the settlor or settlor's
successors

Statutory pet and other noncharitable purpose trusts (UTC 408-409 or

UPC 2-907) - A trust for a pet animal or certain other noncharitable
purposes (eg, maintenance of headstone) is valid, but the court is
authorized to reduce the amount of the trust property if it is excessive
UTC and UPC deal with problem of enforcement by authorizing a

person named by the settlor or the court to enforce the trustee's

fiduciary obligations

A Written Instrument?

Trust does not need to be in writing, but a testamentary trust must

satisfy the wills act and an inter vivos trust of land must be in writing to satisfy
the statute of frauds

Oral Inter Vivos Trusts of Personal Property

UTC 407 Evidence of oral trust

"Except as required by a statute other than this [Code], a trust need

not be evidenced by a trust instrument, but the creation of an oral trust
and its terms may be established only by clear and convincing evidence"

In re Estate of Fournier - If proved by clear and convincing evidence,

a valid oral trust may be created under Maine law by transferring property
during the settlors lifetime with the intention that the transferee hold the
property as trustee for the benefit of a definite beneficiary.

Secret testamentary Trusts and the Wills Act

Olliffe v. Wells - Extrinsic evidence may not be used to prove the terms
of an intended trust and save it from failing for indefiniteness where the will
devises property in trust but the terms of the trust are communicated outside
of the will.

Secret Trust Rule - created when will does not indicate there's a trust
but testator orally tells someone there is one
o
Court can admit evidence of a promise

Semisecret Trust Rule - Will says there's a trust, but lists no

beneficiary
o
Evidence of a promise is excluded
o
Semi-secret trust no enforceable

Oral Inter Vivos Trust and Statute of Frauds

Oral trusts for land violate statute of frauds because there is no writing

o
o
o

BUT, states are split on whether or not to enforce the trust. Some
states allow the trustee to keep the land, while other states allow relief in
restitution by way of a constructive trust
Constructive trust is imposed if:
Transfer of property was obtained by fraud or duress
Trustee had a confidential relationship with trustor; or
If transfer was made in anticipation of trustors death

Non-Probate Transfers - Revocable Trusts

o
o
o
o
o

Five major types of will substitute

Revocable inter vivos trust
Life insurance
Pay-on-death (POD) bank accounts
Transfer-on-death (TOD0 securities
Pension accounts

Revocable Trusts

Settlor of a revocable trust can amend or revoke the trust at any time and for
any reason

Revocable trust may be created by a deed of trust whereby the settlor

transfers to the trustee property to be held in trust.

On the settlors death, the trust property is then distributed or held in

further trust in accordance with the terms of the trust

Every state allows a revocable trust created by a deed of trust to be

created without Wills Act formalities to effect a nonprobate transfer on
death

Can also be created be created when settlor declares himself to be a

trustee of certain property to his benefit during his life, with the
remainder passing at death in accordance to his declaration

Farkas v. Williams - A trust is not an attempted testamentary disposition

where the trust beneficiary who receives the assets of the trust after the
settlors death also receives a present interest in the trust during the settlors
lifetime and the extent of the settlors control over the trust is not consistent
with absolute ownership.
Uniform Trust Code (2000, amended 2004)
Settlors Powers; Powers of Withdrawal
(a) While a trust is revocable [and the settlor has capacity to revoke the
trust], rights of the beneficiaries are subject to the control of, and the
duties of the trustee who are owed exclusively to, the settlor

(b) During the period the power may be exercised, the holder of a power
of withdrawal has the rights of a settlor of a revocable trust under this
section to the extent of the property subject to the power

Moon v. Lesikar - A contingent beneficiary whose interest has not yet vested
does not have standing to challenge a transaction by the settlor of a revocable
trust.

UTC 603 - Beneficiary of a revocable trust has no legally enforceable

interest while the trust is revocable

Trustee is subject to the control of the settlor, and only the settlor may
enforce the trustees fiduciary duties

If the settlor is also the trustee, any action of the settlor-trustee that
diminishes the interest of a beneficiary cannot be a breach of trust, but
rather is an implied revocation

Settlor-trustee of a revocable trust cannot be compelled by a

beneficiary to account or provide information and is not subject to
surcharge for breach of trust

Common law states presume that the trust is irrevocable unless expressly
stated that it's revocable

UCT 602(c) - A revocable trust can be amended or revoked in any manner that
manifests the settlors intent to do so, unless the trust instrument specifies a
particular method of amendment or revocation and expressly makes that
method exclusive (majority)

The beneficiary of a revocable trust has no rights while the trust

remains revocable (just like how they have no rights under a will until
death). It's a mere expectancy.

UTC 602(a) - An inter vivos trust is revocable unless declared to be

irrevocable (majority view)

Eg, in Moon selling the airport stock was a revocation of the

stock, and gave his daughter lack of standing to complain

Intent must be proven by clear and convincing evidence

Patterson v. Patterson - Under the Utah Uniform Trust Code, a settlor need
not comply with the amendment requirements of a trust unless such terms are
deemed the exclusive means for amendment.

Subsidiary Law of Wills

State Street Bank and Trust Co v. Reiser - Where a settlor of a trust retains
the power to amend and revoke the trust or power to control the principal and
income during his lifetime, his creditors may reach the assets of the trust after
his death to the extent that the assets of his estate are insufficient to pay his
debts.

When a person creates a trust for his own benefit for support, or a
discretionary trust, his creditors can reach the maximum amount which
the trustee, under the terms of the trust, could pay to him or apply for his
benefit. This is true even if there's spendthrift provision (spendthrift
provision protects a beneficiary from assigning away his or her inheritance
and it also protects against a creditor attaching the beneficiary's
inheritance.)

UTC 505(a)(3) - The settlor's power to revoke a trust and take back the
trust property is regarded as equivalent to ownership and, hence, the
trust property is subject to the claims of the settlor's creditors during life
and at death

EXCEPTIONS:
o Creditors of a joint tenant cannot reach the jointly held property
after joint tenants death
o Life insurance naming spouse or child as beneficiary usually
exempt from creditors reach
o Retirement benefits usually exempt
o US Savings bonds with a POD beneficiary may also be exempt

UPC 6-102 - Permits decedent's creditors to reach nonprobate

transfers (except joint tenancies in real estate), like revocable inter vivos
trusts and joint bank accounts, if the probate estate is insufficient to pay
the decedent's debts

Clymer v. Mayo - Unless a contrary intent is expressed,

Massachusetts statute, G.L. c. 191, 9, under which bequests in a will to a
former spouse are automatically revoked applies to a revocable trust that is
funded entirely at the settlors death through a pour over will.

Limited to revocable pour-over trust funded entirely at

decedent's death in this case. Need to ask Becker if revocation by
operation of law (divorce) applies to revocable trusts in general

UPC 2-804 applies to will and will substitutes. It revokes

disposition in favor of a former spouses in a governing instrument
including deeds, wills, trusts, insurance/annuity policies account with a

POD or transfer-on-death designation, pension plan, or other nonprobate

transfers

Most states uphold this statute retroactively (eg state adopts

statute after trust is created), but some don't

Courts have applied abatement and ademption will rules to

revocable trusts as well

UTC 601 - Capacity required to create, amend, revoke, or

add property to a revocable trust or to direct actions of the trustee of a
revocable trust, is the same as that required to make a will (modern view)

UTC 604(a)(1) (as well as UPC 3-108(a)) - Three year limitation

period in which to contest/bring challenge to a trust. Time starts at death
or the testator or settlor.

602(a)(2) - The time can be shortened to 120 days if trustee

sends prospective contestants a copy of the trust instrument and
notice informing the person of the trusts existence, trustee's name
and address, and of the time allowed for commencing the
proceeding.

Revocable Trusts in Contemporary Practice

Pour-over will - Revocable trust is set up with the settlor

naming himself or a third party as a trustee. Settlor then creates a will devising
his probate estate to the trustee of that trust

EG I give my residuary estate to the trustee under the trust

agreement executed on (date here) known as the (trust name here)
Revocable Trust, which I am now trustee and X is the named successor
trustee, to be added to the trust estate and held under that trust
agreement as in effect at my death

Incorporation by reference and acts of independent significance

doctrines validate pour-over of probate property into a revocable trusts

Incorporation by reference cannot be used to validate a pour

over into a trust that is amended after the will is executed

Acts of Independent Significance - Trust instrument does not

have to be in existence when the will is executed, but the trust must
have some property in it prior to the testator's death

Incorporation requires that the trust instrument be in existence

at the time the will is executed. Independent significance requires

that the trust have some property transferred to it during the

settlor's life.

Neither incorporation nor acts of independent significance

permit a pour ocer into an unfunded revocable trust drafted or
amended after the execution of a will
Statutory validation for Pour-Over Wills and Unfunded Revocable

Trusts

Uniform Testamentary Additions to Trusts Act (amended 1991)

- permits the trust instrument to be executed or amended after the will
has already been created (OG version requires previous or concurrent
execution with the will)

Probate assets can transfer to the trust if the testator executes

trust instrument before dying under new UTATA or UPC 1990

Lifetime Consequences
Revocable trust can facilitate property management by a

fiduciary.

A settlor can select a third-party trustee to manage a funded

revocable trust with duties that run only to the settlor

Can create some inconveniences like a third-party wanting to

see the trust instrument or certification under UTC 1013 to verify he has
the power to engage in the proposed transaction

Can use a revocable trust to plan for incapacity. Even if settlor

names himself as the initial trustee, a successor trustee can take over and act
expeditiously to protect the trust property if the settlor becomes incapacitated

Can be used to keep title clear, like keeping separate property

away from community property during a marriage in community property
states

Probate avoidance

Revocable trusts can be established to avoid ancillary probate if

the settlor owns real property in another jurisdiction

Because a revocable trust can be used to avoid probate, it

ensures continuity in property management upon death. Even if the settlor is
the sole trustee, a successor trustee can be named that way at death the
trustee can act immediately without court order

Revocable trusts, unlike wills, are not part of the public record so
this is attractive as a will substitute by a person desiring secrecy

Revocable trust CAN still be contested for lack of capacity or

undue influence, but heirs who are not beneficiaries are not entitled to see the
trust instrument. Moreover, a trust continues as an ongoing operation for years
before the settlor dies, generating monthly or yearly statements and involving
various property transfers by a third-party trustee, so courts will be reluctant
to set the trust aside

Settlor of a revocable trust (except land, which is governed by

the situs state) may be able to choose the state law that will govern the trust,
unlike a will where the testator's domicile state law will govern.

Downsides; law governing wills such as lapse, ademption,

simultaneous death, revocation, divorce, apportionment of death taxes, etc.
may not apply to a revocable trust depending on the jurisdictions rules

Other Will Substitutes

Life insurance

Term life insurance (most common) - Term policy contract obligates

insurance company to pay the named beneficiary if the insured dies within the
policy's term. Less expensive than permanent insurance

Whole life insurance - Comines insurance and savings plan. The

policy eventually becomes paid up por endowed, with no further premiums
owed. (expensive)
Beneficiary of a policy can select from settlement options receivable on

death of the policy holder. Options include lump sum, interest for
years followed by payment of principal, or period payments of
interest and principal

Cook v. Equitable Life Insurance Policy - Under Indiana law, an

insured party may only change the beneficiary of a life insurance policy in the
manner set out in the policy, and a designation of an alternate beneficiary by
will is ineffective.

In many states, the statute that revokes a will provision for an exspouse does NOT apply to life insurance

UPC 2-804 (1990, rev. 2002); if in place in Cook case, 2nd wife and son
would have won because the policy was privately obtained. But, if
obtained as an employment benefit the state revocation-on-divorce
statute would be preempted by federal law under Egelhoff

Super wills R3d Property - Endorses super wills where the terms of the
will supersede designations made in nonprobate instruments of account
like life insurance policies

Pension and Retirement Plans

o
o
o

Tax Benefits through pension plans

Most contributions to pension plans are tax-deferred
On some qualified plans, earnings accrue and compound on a
tax-deferred basis
Distributions after retirement are usually taxed at a lower
marginal rate
Types of Pension and Retirement Plans

Defined Benefit Plan - Employee receives a pension check for life

(life annuity) or the joint and several lives of the employee and his spouse
(joint and survivor annuity). Depends on number of years employee
worked. Once the employee (and spouse if joint and survivor annuity)
dies, there is nothing left to pass. Most common for govt. employees.

Defined Contribution Plan - The employee, employer, or both, make

contributions to a specific account for the employee. Employee chooses
from a menu of mutual funds or other investment vehicles.
Once retied, the employee controls the size and timing of distributions
form the account, subject to certain distribution rules like automatic
withdrawals beginning at age 70.5. Whatever is left in the account passes
outside of probate to the named beneficiary or in accordance with the
rules if the beneficiary predeceases

Individualized Retirement Account (IRA) - Similar to DCP (above),

but different in that an IRA is governed by the terms of the account holder
and the custodial institution. Participant in a defined distribution plan
(above) can, and often does, transfer funds from the DCP to the IRA "Roll
Over." If done right, roll over is not taxed.
IRA owner controls timing and amount of withdrawals, subject to similar
rules that govern DCPs. Any remained passes to beneficiary outside of
probate or in accordance with the account agreement's default
distribution rules.

Succession Issues for Pension and IRA's

IRA's are governed by state law, but pension and retirement

accounts obtained as a benefit of employment are governed by federal
law

Nunnenman v. Estate of Grubs - Under Arkansas law, a testator can

change the beneficiary of an IRA account by will if the will sufficiently
identifies the policy and shows an intent to change the beneficiary.
Majority Rule: A will is insufficient to change beneficiary designation on

an IRA account.
Minority Rule: If a will is specific enough, it can change a beneficiary

designation.
Changing Beneficiary
o Majority rule: strict compliance with terms of the contract (eg,

have to turn in a new form if the contract for IRA says thats how
you change beneficiary)

Minority rule: Substantial compliance with terms of the contract

Egelhoff v. Egelhoff - ERISA preemption of a state statute

applies when the state statute affects the administration of an ERISAgoverned plan in a way that interferes with the objectives of the ERISA
statute. (SCOTUS)

Pay-on-Death and Transfer-on-Death Contracts

Uniform Probate Code (1990, amended 1998)

A provision for a nonprobate transfer on death in an insurance policy,

contract of employment, bond, mortgage, promissory note, certificated or
uncertificated security, account agreement, custodial agreement, deposit
agreement, compensation plan, pension plan, individual retirement plan,
employee benefit plan, trust, conveyance, deed of gift, marital property
agreement or other written instrument of a similar nature is
nontestamentary. This section includes a written provision that:
(1) money or other benefits due to, controlled by or owned by a
decedent before death must be paid after the decedent's death to a
person whom the decedent designates either in the instrument or in a
separate writing, including a will, executed either before or at the same
time as the instrument, or later;
(2) money due or to become due under the instrument ceases to be
payable in the event of death of the promisee or the promisor before
payment or demand; or
(3) any property controlled by or owned by the decedent before death
that is the subject of the instrument passes to a person the decedent
designates either in the instrument or in a separate writing, including a

will, executed either before or at the same time as the instrument, or

later.
Transfer on death/POD registrations are allowed in almost

every state.

Most banks, brokerage houses, mutual funds and other

financial intermediaries allow POD and TOD designations on their customer
accounts

Multiple-Party Bank and Brokerage Accounts

Joint bank account with right of survivorship - A and B open joint

account with remainder going to survivor when either dies.

POD account disguised as joint account - A opens a joint Account

with B, but only intends for B to receive balance on death

Agency or Convenience Account - A opens joint account with B,

but B can only withdrawal as a convenience to A, but does not receive balance
on A's death

Varela v. Bernachea - Where a joint bank account is created

with funds belonging to one person, a gift of the funds to the other person is
presumed and the presumption may only be rebutted by clear and convincing
evidence.

Under UPC 6-211(b), joint accounts belong to the named parties

during their joint lifetime "in proportion to the net contribution of each to
the sums on deposit, unless there is clear and convincing evidence of a
different intent."

Extrinsic evidence is admissible to show that a joint account was

established solely for the convenience of the depositor

UPC imposes a requirement of survivorship on beneficiaries of

POD accounts (6-212) and TOD security accounts (6-307). UPC also has an
antilapse provision for nonprobate transfers (2-706), which substitutes the
surviving descendants of a predeceased named beneficiary

Nonprobate Transfer of Real property

We've already seen how real property can be transferred into a

revocable trust that is owned by the trustee, obviating the need for probate to
change title to the property at death of the settlor.

Two other forms of nonprobate transfers of real estate property

are (1) joint tenancy and tenancy by the entirety and (2) a TOD deed for real
property

Joint Tenancy and Tenancy by the Entirety - Upon the

death of one tenant, the surviving tenant owns the property absolutely
(eg, husband and wife named joint tenants on a deed when they buy the
house)

A person who transfers land into joint tenancy CANNOT, during

life, revoke the transfer or cancel the interest given to the joint
tenant. Because the interest is extinguished at death, the interest in
the property cannot be devised by will either.

The joint tenancy must be severed during the joint tenants life if
she wants someone else to take it at death.

Creditor of a joint tenant must seize the joint tenant's interest, if

at all, during the joint tenants life. Because interest vanishes at
death, there's nothing for creditor to reach.

A TOD Deed for Real Property - Recorded deed purports to

convey Blackacre to T, Transfer on death to A."

A substantial minority of states have enacted statutes like

Property Transfer on Death Act, which was absorbed into the UPC as
6-401 through 6-407, which allows the transfer of real property by
TOD deed. T can identify a beneficiary who will succeed to Blackacre
on T's death by recording a TOD deed.

During T's life the TOD transferee (A above) has no interest in

Blackacre

T still has the power to transfer Blackacre to others or revoke the

TOD designation

Planning for Incapacity

Conservatorship

In most states, a court may appoint a conservator to manage

property of an incapacitated adult

Under UPC 5-401 (1998) a conservator may be appointed if clear

and convincing evidence shows the person is "unable to manage property and

business affairs because of an impairment in the ability to receive and

evaluate information or make decisions" AND
by preponderance of the evidence that the person has property that will be
wasted or dissipated unless management is provided or money is needed for
the support, care, education, health, and welfare" of the person.

Priority appointment as conservator given to someone chosen in

advance by the person, agent under durable power of attorney, or
person's spouse, adult child, or parent in that order.

Appointment as conservator gives conservator powers over the

property for the incapacitated adult like a trustee.

Guardianship system - effective in some states; guardians

powers are more limited and judicial involvement is more substantial

Revocable Trust

Revocable trust can provide a co-trustee or successor trustee

who takes over in the event that the settlor becomes incapacitated. Co-Trustee
can then act to ensure uninterrupted fiduciary management of the trust
property without involvement of the courts.

Trust instrument should include a mechanism for determining if

settlor is incapacitated (eg, unanimous vote by family)

Cons: Trustee can only act with respect to property put in the
trust by the settlor before incapacity. Only conservator or agent under
durable power of attorney can act with respect to property held by the
settlor outright

Durable Power of Attorney

Durable power of attorney - agent acts on behalf of

incapacitated adult and is effective during the incapacity of the principal and
until the principal dies. Can be drafted where power is effectvie on signing or
upon incapacity (called springing durable power of attorney).

Durable power of attorney allowed in all states

Durable Power of Attorney must be in writing and in some

states, witnessed or notarized.

Under UPC, the agent's fiduciary duties and resolves are

mandatory, but can be overridden by the terms of the instrument.

Under the UPC all powers of attorney are considered durable

unless the instrument says otherwise

UPC includes a statutory form power-of-attorney instrument that

must be accepted by a third party

In re Estate of Kurrelmeyer - An attorney-in-fact has the

authority to create a trust on behalf of the principal if the power of attorney
indicates that the principal intended the attorney-in-fact to have such
authority.

Majority view - Agent under power of attorney cannot make,

amend, or revoke the principal's will, but the agent can create, modify or
revoke a trust if the power to do so is expressly granted in the power-ofattorney instrument

Minority view - Court Appointed Guardian or Conservator can

amend, revoke, and modify a will as well as a trust. If challenged, under
substituted judgment standard, the court will consider

Gifts - Majority view is that an agent cannot make a gift to

himself without specific authorization.

Health Care
Default Law

SCOTUS held that each person has constitutional right to make

health care decisions for herself, including the right to refuse medical
treatment. Can appoint someone to make these or can make an advance
directive outright stating that he wishes to terminate or refuse medical
services.

Under the Uniform Health-Care Decisions Act, if there is no

advance directive, responsibility for an incompetent patient's health care
decisions are authorized to be made by surrogates in this order: (1)
spouse, unless legally separated; (2) adult child; (3) parent; or (4) adult
sibling

If more than one person is in a class, majority vote rules

Agent is held to a substituted judgment standard of what the

patient would have chosen in the situation

Advance Directives

Three basic types of advance directives

Instructional directives - Living will (or something similar)

specifies how one wants to be treated in end-of-life situations or in the
event of incompetence

Proxy Directives - Designate an agent to make health care

decisions for the patient;

1.

Hybrid or combined directives - incorporates both approaches,

directing treatment preferences and designating an agent to make
substituted decisions.

Uniform Health-Care Decisions Act takes hybrid approach - includes

forms to create power of attorney for healthcare and allow a person to
indicate how aggressively the person would like to be treated

Physician Aid in Dying

o

Oregon Death With Dignity Act - Relieves doctor of civil and criminal
liability for prescribing a lethal dose of drugs. Conditions that must be met: (1)
patient must be suffering from incurable disease that is likely to produce death
within 6 months; (2) must make multiple separate requests; (3) next of kin
must be notified; and (4) must survive 2 waiting periods (one 15 days and the
other 2 days)
o

WA and MT have enacted as well

Disposition of the Body

Post-Mortem Remains
o

If a person dies by violence or in suspicious circumstances, statutes in

all states require an autopsy regardless of the wishes of the deceased or next
of kin

Organ Donation
o

Uniform Anatomical Gift Act - Allows a person to give his body to any
hospital, physician, med school, or body bank for research or transplantation.
o
o

Also allows a person to gift body, or any parts of it, to a specified

person for therapy or transplantation.
Gift can be made by will or by a card carried on the person so long as
the donor signs off on it. Many states have organ donation designation on
back of a license

Outright sale of an organ is prohibited, but a swap by willing kidney

donors whose intended donees are compatible only with the other donor is
allowed.

Many States have routine request statutes, requiring hospitals to

request form families of prospective donors at the time of death permission to
remove organs for transplantation. Feds require this as a condition of Medicare
eligibility

RIGHTS OF SURVIVING SPOUSE

In most separate property states, surviving spouse entitled to forced

share of 1/3 of spouses estate

In community property states each spouse owns all earnings during the
marriage in equal undivided shares (no elected share because the spouse
already owns half of the community property)

Both separate and community property states protect pretermitted

spouses from accidental disinheritance

Pretermitted children are also protected if accidentally omitted from a

will (can be overridden by express provisions)

Separate Property states (Majority) - Spouses own property separately

acquired during the marriage unless there's a joint agreement saying
otherwise.

Spouses in separate property states can either get the forced share
(1/3 of estate) or elect to take under the will
Elected share can also be waived by a prenuptial agreement or marital

agreement
Unlike community property States, wife cannot will property jointly

acquired during the marriage

If surviving spouses share under a will does not meet the elected
amount (forced share), then the difference is made up in pro rata shares from
all the other beneficiaries (Majority rule), or from the residuary estate

The surviving spouse or her representative can only take the elected
share during the surviving spouse's lifetime (Majority rule)

Should the surviving spouse's representative take the elected

amount or the amount in the will when the spouse becomes incompetent? -

(MAJORITY VIEW) All surrounding circumstances and facts should be considered

to determine whether the surviving spouse would have wanted to abide by the
deceased person's will

UPC says that the representative must take the elected share for the
incompetent spouse if necessary to provide adequate support for the
surviving spouse during her life expectancy
UPC 1990 says that the excess of what the deceased spouse provided

for the incompetent survivor must be placed in trust for her benefit.
Anything left in the trust after she dies goes to the residuary devisee
or the incompetent spouses heirs

Abandonment - Minority of states say that there is no elected share for

a spouse who abandons

Elected Shares and Non-Probate Property

Sullivan v. Burkin- For purposes of determining an omitted spouses

share under G.L. c. 191, 15 where the decedent spouse created an inter
vivos trust during the marriage and only the decedent spouse had the general
power of appointment under the trust, the trust assets shall be treated as part
of the probate estate.

Many courts have determined that "illusory" revocable trusts are valid,
but count as part of the decedent's assets subject to the elective share,
so the trustee may have to contribute some of the trust share to make up
the elected share. Illusory Tests include:
Intent-to-Defraud Test: Some courts look at the subjective intent of the

decedent in making the trust

Objective test: Some courts consider factors like the control retained

by the transferor, he amount of time between transfer and death,

and the degree to which the surviving spouse is left without an
interest or other means of support
Present Donative Intent Test - Some Courts consider whether the

transferor intended to make a gift

Majority of states say that a revocable trust created by the decedent

spouse is included in determining the surviving spouse's elective share. But in
some states the revocable trust is not subject to the elective share.

Some person could theoretically create a revocable trust in a state that

does not count it as part of the elective share

UPC 2-202 dealt with the issue by providing that the law of the
decedent's domicile governs the right to take an elective share of
property located in another state

Statutory Reform

Many states have enacted statutes determining which nonprobate

transfers are subject to the elective share, replacing the Illusory Tests. Even
with these statutes, the question is whether a nonprobate transfer not
mentioned in the statute should be included in the elected share

Estate of Meyers - Pay-on-death assets are not included in a

surviving spouses elective share, as defined by Iowa Code section 633.238.

In Most states, a surviving spouse cannot be force to take an elective

share, but the value of the elective share will be counted toward the
surviving spouse's available resources in determining eligibility for
Medicaid.

UPC

The UPC considers nonprobate transfers to a great extent by:

(1) More broadly worded, has provisions that bring into the augmented
estate any transfer in which the decedent spouse retains a right to
possession or income;
(2) paying attention to the lifetime transfers made to the surviving spouse
and the surviving spouse's own wealth, in order to achieve fairer
allocation between the spouses; and
(3) the 1990 version pays attention to the length of a marriage, increasing
the surviving spouses share in long marriages and decreasing for shorter
ones

UPC 1969 2-202

The surviving spouse is entitled to an elective share of 1/3 of the probate
estate plus any of the following nonprobate and inter vivos transfers made
without consideration at any time during the marriage:

A transfer in property in which the decedent retains the right to

possession or income from the property

A transfer that the decedent can revoke or invade or dispose of the

principal for his own benefit

a.

A transfer in joint tenancy with someone other than the spouse

a.

A transfer made within 2 years before death exceeding $3k per donee
per year; and

a.

Property given to the surviving spouse during life, including a life

estate in a trust, and property received by the spouse at death derived
from the decedent, such as life insurance and pensions
Premarital transfers NOT included in the augmented estate

1990 UPC adds up all property of the spouses and allocates it

according to a percentage based on the length of the marriage.

Accordingly, augmented transfers made before the marriage and

during may be added to the augmented estate, if the decedent retained
substantial control over the property
Also includes property and power received from others

Waiver

Prenuptial agreements can waive the mandatory elective share

Prenuptials may not be enforceable though under Uniform

Premarital Agreement Act (Majority) if:
1.
Agreement was involuntarily entered into; AND
2.
The agreement is unconscionable and the party opposing
enforcement did not have a fair and reasonable disclosure of the other
party's p[property and finances

Reece v. Elliot - An antenuptial agreement will be enforced even where a party

failed to disclose the value of a substantial asset as long as the contesting
party was not misled and had an opportunity to discover the value of the
asset.

Community Property

In community property states, each spouse owns a 1/2 interest in property

acquired during the marriage

Separate property = property acquired before the marriage or

gifts/inheritances received during the marriage

AZ - Community property is owned with a right of survivorship. The

decedent spouse cannot dispose of his share by will; instead it passes under
right of survivorship to the surviving spouse

In regular community property states, the spouse can dispose of his or her
half of the community property at death. No elective share over the
decedent spouse's half because the surviving spouse already has the
other half

General approaches to debts:

Managerial System - creditor has recourse against all community property

subject to the debtor spouse's control

Community Debt System - Creditor's claim is characterized as separate or

community and creditor's recourse follows accordingly

Neither spouse can gift community property without the other's consent

Community property states follow the theory that each spouse owns equal
shares in EACH item of community property at death. Thus, if H and W own
blackacre and whiteacre (each worth $50k), W cannot devise Blackacre to W
and Whiteacre to her Daughter even though it's basically the same amount

Migrating Couples and Multistate Property Holdings

Traditional rules used to determine which state law governs marital property

The law of the situs controls problems related to land

The law of the marital domicile at the time that personal property is
acquired controls the characterization of the property as separate or
community

1.

The law of the marital domicile at the death of one spouse controls
the survivor's rights

Intentional Omission of a Child

In all states (except LA) a child or other descendant has no statutory

protection against intentional disinheritance by a parent. Unlike spouses, there
is no requirement that the testator leave any property to a child.

Protection Against Unintentional Omissions

Changes in circumstances between the will's execution and the

testator's death may render that will stale.

Omissions of Spouses form a Premarital Will

Statutes have default rules such as giving a wife an intestate share

when she is omitted from a premarital will. Statute rules can be overcome with
evidence that the testator deliberately omitted the spouse from his will and did
not fail to updated the premarital will

UPC 2-301 (1990, amended 1993) - Entitlement of Spouses;

Premarital Will
(a) If a testators surviving spouse married the testator after the testator
executed his [or her] will, the surviving spouse is entitled to receive, as an
intestate share, no less than the value of the share of the estate he [or she]
would have received if the testator had died intestate as to that portion of the
testators estate, if any, that neither is devised to a child of the testator who
was born before the testator married the surviving spouse and who is not a
child of the surviving spouse nor is devised to a descendant of such a child or
passes under Sections 2-603 or 2-604 to such a child or to a descendant of
such a child, unless:
(1) it appears from the will or other evidence that the will was made in
contemplation of the testators marriage to the surviving spouse;
(2) the will expresses the intention that it is to be effective
notwithstanding any subsequent marriage;
or
(3) the testator provided for the spouse by transfer outside the will and
the intent that the transfer be in lieu of a testamentary provision is shown
by the testators statements or is reasonably inferred from the amount of
the transfer or other evidence.
(b) In satisfying the share provided by this section, devises made by the will to
the testators surviving spouse, if any, are applied first, and other devises,
other than a devise to a child of the testator who was born before the testator
married the surviving spouse and who is not a child of the surviving spouse or
a devise or substitute gift under Sections 2-603 or 2-604 to a descendant of
such a child, abate as provided in Section 3-902.

In re Estate of Prestie - Under Nevada law, where a will does not

provide for a surviving spouse who married the testator after his will was
executed, the presumption of revocation may only be rebutted by evidence of

a marriage contract or a provision in the will that either provides for the
surviving spouse or indicates an intention not to provide for the spouse.

Under the UPC, if H remarries, but his previous will leaves everything
to his daughter, his new wife is not entitled to an intestate share of H's
estate. BUT, if he left it to his alma matter, W would take an intestate
share

Unintentional Disinheritance of a Child

Pretermitted Heir - An heir mistakenly omitted from a will

Pretermitted Heir Statutes - Designed to prevent unintentional
disinheritance of a child
UPC 1990, amended 1993
(a) Except as provided in subsection (b), if a testator fails to provide in his [or
her] will for any of his [or her] children born or adopted after the execution of
the will, the omitted afterborn or after-adopted child receives a share in the
estate as follows:
(1) If the testator had no child living when he [or she] executed the will,
an omitted after-born or after-adopted child receives a share in the estate
equal in value to that which the child would have received had the
testator died intestate, unless the will devised all or substantially all of the
estate to the other parent of the omitted child and that other parent
survives the testator and is entitled to take under the will.
(2) If the testator had one or more children living when he [or she]
executed the will, and the will devised property or an interest in property
to one or more of the then-living children, an omitted after-born or afteradopted child is entitled to share in the testators estate as follows:
(A) The portion of the testators estate in which the omitted afterborn or after-adopted child is entitled to share is limited to devises
made to the testators then-living children under the will.
(B) The omitted after-born or after-adopted child is entitled to receive
the share of the testators estate, as limited in subparagraph (A),
that the child would have received had the testator included all
omitted after-born and after-adopted children with the children to
whom devises were made under the will and had given an equal
share of the estate to each child.
(C) To the extent feasible, the interest granted an omitted after-born
or after-adopted child under this section must be of the same
character, whether equitable or legal, present or future, as that
devised to the testators then-living children under the will.

(D) In satisfying a share provided by this paragraph, devises to the

testators children who were living when the will was executed abate
ratably. In abating the devises of the then-living children, the court
shall preserve to the maximum extent possible the character of the
testamentary plan adopted by the testator.
(b) Neither subsection (a)(1) nor subsection (a)(2) applies if:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the omitted after-born or after-adopted child
by transfer outside the will and the intent that the transfer be in lieu of a
testamentary provision is shown by the testators statements or is
reasonably inferred from the amount of the transfer or other evidence.
(c) If at the time of execution of the will the testator fails to provide in his [or
her] will for a living child solely because he [or she] believes the child to be
dead, the child is entitled to share in the estate as if the child were an omitted
after-born or after-adopted child. (d) In satisfying a share provided by
subsection (a)(1), devises made by the will abate under Section 3-902.

Gray v. Gray - Under Alabama law, an omitted child born after

execution of the decedents will is not entitled to an intestate share under the
omitted child statute if the decedent parent omitted all of his children from the
will and left the entire estate to the omitted childs other parent.

Pretermitted Heir statues are either "Missouri" type or "Massachusetts"

type
Missouri type statutes - drawn to benefit children not named or

provided for in the will.

Extrinsic evidence of intent is not admissible
Massachusetts-type statutes - allows the child to take unless it appears

that the omission was intentional and not occasioned by mistake.

Extrinsic evidence admissible to show absence of intent to

disinherit

Many pretermitted heir statutes, like UPC 2-302 above, protect only
children born or adopted AFTER execution of the will. Some statutes favor
children who are alive when the will is executed as well as after born
children

In most states, pretermitted heir statutes can be avoided by providing

for descendants with representation. No descendent born before or after

the will is pretermitted if the will devises the residue of the estate "to my
wife if she survives me or if she does not survive, to my descendants per
stirpes"

Courts have been strict in requiring the testator to indicate clearly an

intention to disinherit a child, either by express words or by necessary
implication

In re Estate of Jackson - The NV pretermitted heir statute

unambiguously pertains only to wills. It does not encompass a situation where
a child is omitted from a trust.

Most pretermitted heir statutes refer only to wills and not to other
nonprobate modes of transfer. Courts have held that these statutes
cannot be applied to a revocable trust used as a will substitute