Page 1

Estates and Trusts

Professor David English
Fall Semester 2005
David Martin
Class Notes
Final: 3.5 hrs
> guaranteed Q on will contest
given short fact pattern & you need to write what Qs you should ask a client in that situation
Areas Covered:
1) estate planning
> achieve plan consistent with clients objectives
- with respect to transfer of wealth at death / life transfers (gifts)
- more recent focus on disability planning
> many professionals do this: CPAs, life insurance agents, financial planners,
brokers, banks
> in MO: drafting of wills / trusts by non-lawyer is unauthorized practice of law
2) estate administration after: will is validated, estate admin. can begin
3) trust administration: long term management of property, managed by trustee
4) fiduciary litigation

Issues at Death:
- how is title held to the decedents assets
> Non-Probate: document of title tells what happens at owners death
- joint tenancy with right of survivorship / tenancy by entirety
- joint bank accounts (actually a contract)
- beneficiary designation (life insurance proceeds)
- trusts
> Probate: document of title does not tell you what happens at owners death
- fee simple
- tenancy in common
- absolute ownership
only probate assets pass by will / to heirs
2 types of statutes dealing with estate administration
Probate Code: covers heirs / intestate succession / estate admin. / POD (payable on death)
- some UPC used, restatements
Trust Code: uniform act enacted by MO

Page 1

Page 2
Wills: designate who gets the probate assets
Testator: one who makes will
Devisee: one who takes under a will
Devise: that which passes under a will
Testament: means will
Personal Representative [PR]: administrates will
- Executor: if there is a will & person named in will accepts job
- Administrator: if a person not named in will takes job (priority list statute); or if
no will, but heirs inherit by intestate succession
Heirs (next of kin): those who take w/o will by intestate succession

Probate: procedure of going to court to validate will (wills are not valid to prove property
rights at death until approved by a court)
- purpose of probate is to prove that execution requirements are met
- if met, will is validated
Probate process:
> petition: family member or other person petitions court
Requests 2 orders:
1. probate will
2. appoint PR
> notice must be given to
devisees & heirs (due process requirement)
creditors
2 types of notice:
1) if you know who the creditors are, must be actual notice
2) for others, notice by publication
> judge issues order to bring the will to probate
> sets personal representative
Court involvement in Probate Process: differs by state
Supervised:
Have to go to court when
- open estate
- inventory estate
- sell real estate
- file accounting (assets/receipts/disbursements/distribution)
Independent / Informal: Open estate, that is only court hearing

Page 2

Page 3

be

473.780
When independent administration:
.1) if will authorizes independent admin, letters testamentary shall allow administrator to
independently administrate. If independent admin is prohibited by will, it shall
disallowed
.2) if all heirs / devisees consent, independent admin can be used if will does not prohibit
.3) if one or more heirs / devisees is under disability & all others consent, court shall
allow ind. admin. w/o appointing guardian ad litem for those under disability

Estate Administration:
Will tells us:
> who gets probate assets (devisee)
> who will administrate the will (personal rep.)
Ogle:
Survivorship [devisee must survive testator] is required to take under a will.
461.042: (non-probate transfers) 120 hrs, unless changed by owner & accepted / law provides
474.015: IS & Wills: 120 hrs or deemed to have pre-deceased
- if it cannot be determined, they have failed to survive
- doesnt apply where application would cause land to escheat to the state
474.455: non-surviving devisee treated as predeceasing testator, unless provision in will for
simultaneous death / death from common disaster
Traditional rule: only those who have Kd with lawyer can sue for malpractice
Exception: intended beneficiary can sue lawyer for malpractice if harmed (using
3rd party beneficiary doctrine)
> if one can establish from the will that they were an intended beneficiary,
then they have standing to sue
Testamentary intent: generally can only be established from the will itself (if you
are left out of will altogether, cant sue)
DEATH:
Uniform Simultaneous Death Act: if you cant find out who died first, devisee is assumed
to have died before testator / beneficiary of insurance policy is presumed to have died
before policy holder
Janus:
Indications of death (common law)
- permanent cessation of respiration
- permanent cessation of blood circulation
> need both to constitute death

determined by gen. accepted med stds.

Page 3

Page 4
Alternate definition
> brain failure, including the brain stem
In response to Janus, UPC was amended: added 120 hr survivorship requirement
MO has enacted this 120 hr requirement in several places
461.042: for non-probate transfers (.1)
.2) owner can provide different time period
.3) does not apply to joint owners
474.015: if owner dies intestate
- heirs determined 120 hrs after death of owner
474.455: devisee must survive testator by 120 hrs to take
the first and third statutes are rules of construction and can be
overridden by the written document

INTESTATE SUCCESSION (IS)

> tells us where probate assets go if there is no will
> studies have tried to figure out what deceased persons would want
- most people want
> SS to get 100%
> half-bloods to be treated the same as whole bloods
> adopted children to be treated the same
> children born out of wedlock (studies are less clear)
- traditionally, half-bloods / adopted / out of wedlock were not provided for
Terms:
Consanguinity: relationship by blood
Affinity: only relative that can inherit by affinity is a spouse (no mother-in-laws, etc)
Descendant or Issue: mean same thing (do not use issue in drafting, produces litigation); down
from origin on table of consanguinity
Ancestor: up and to the right on table of consanguinity
Collateral: to the side on table of consanguinity
Degree: number on Table of Consanguinity
Civil Degree Method: number on chart determines, but a direct descendant wins over another
relative
Parentelic Method: if spouse does not take 100%, go down first if there is a descendant, they
take all the remaining estate; if no descendants parents, their
descendants,
if none Gparents, their descendants etc
Multiple descendants use representation to decide who takes what
Escheat: no relatives, land goes to state
Half-blood relative: collateral relative with whom person shares only one common parent

Page 4

Page 5
UPC Surviving Spouses Intestate Share:
- if no surviving issue or parent of the decedent, the entire intestate estate;
- if no surviving issue but surviving parent, first $50 + of the balance;
- if surviving issue only from surviving spouse, $50k + balance
- if surviving issue not of the surviving spouse, of intestate estate
Inheriting Schemes:
Per Capita: each surviving descendant gets an equal portion
Per Stirpes (by right of representation): goes to 1st gen (whether alive or dead with
descendants) in equal shares, then to second, etc
Per Capita w/ representation: divide equally in 1st generation that has living descendants one
share to each living descendant + allocate 1 share to each deceased descendant that has
living descendants; repeat process until share of deceased descendant is exhausted
Per Capita at each generation: divide equally at 1st generation down with living descendants;
then combine shares of deceased descendants at that generation and distribute shares
equally among descendants children; repeat until estate is exhausted
470.010: if person dies intestate w/ no heirs / reps (and other situations), the property escheats to
the state
474.010: Intestate Succession
Surviving Spouse gets:
If no surviving issue of decedent:
If issue is only from SS:
If some issue not from SS:
If no Surviving Spouse:

spouse,

Entire testate estate

$20k + intestate estate
of intestate estate
Ds children, their issue
parents & siblings (per capita), their issue (per stirpes)
Gparents & Uncles/Aunts (p/c), their issue (p/s)
relatives w/in the 9th degree (see 474.010.2(d) below for specifics)
kindred of pre-deceased spouse (if married to D at time
of spouses death); if more than 1 predeceased
in equal shares to the kindred of such (see

474.010.3 below)

no relatives: escheats to state

474.010.2(d): If there are no children or their descendants, father, mother, brother, sister, or their
descendants, grandfather, grandmother, uncles, aunts, nor their descendants, then to the greatgrandfathers, great-grandmothers, or their descendants, in equal parts; and so on, in other cases
without end, passing to the nearest lineal ancestors and their children, or their descendants, in
equal parts; provided, however, that collateral relatives, that is, relatives who are neither

Page 5

Page 6
ancestors nor descendants of the decedent, may not inherit unless they are related to the decedent
at least as closely as the ninth degree, the degree of kinship being computed according to the
rules of the civil law; that is, by counting upward from the decedent to the nearest common
ancestor, and then downward to the relative, the degree of kinship being the sum of these two
counts, so that brothers are related in the second degree;
474.010.3: If there is no surviving spouse or kindred of the decedent entitled to inherit, the
whole shall go to the kindred of the predeceased spouse who, at the time of the spouse's death,
was married to the decedent, in like course as if such predeceased spouse had survived the
decedent and then died entitled to the property, and if there is more than one such predeceased
spouse, then to go in equal shares to the kindred of each predeceased spouse;

Ex: D has no children, so estate is distributed to parents / siblings, their issue.

Situation:
A

Mom

C (Dead)
D

E
F
Mom, A, and B take , E and F take 1/8 (divide up Cs quarter)

474.020: When several lineal descendants of equal degree of consanguinity to intestate (or his
father/mother, siblings, grand f / m, etc) they shall take per capita. The descendants of the
aforementioned shall take per stirpes.
474.030: If part of estate is validly disposed of by will, rest will be disposed of under intestacy
laws.
474.040: If estate goes to collaterals and ascending kindred, half-bloods only get as much as
whole blooded relatives; if all collaterals are half-blood, they shall have whole portions, but
double portions go to ascendants. (ex: 2 shares to each whole blood / 1 to each blood)
many states make no distinction, but in MO there is
474.140: If a spouse voluntarily leaves & abandons w/o reasonable cause or continues with
adulterer for 1 year preceding death, such spouse is barred from inheritance, homestead
allowance, etc unless such spouse is voluntarily reconciled or resumes cohabitation.

Page 6

Page 7

find common ancestor, count number of levels up from decedent to common ancestor, count
levels down to the person in question. The sum of the numbers is the degree of consanguinity.
Note: In MO, columns rule, no-one in column 3 will take unless there is no relation from
column 2 in existence
Representation:
Note: > under all systems, a living ancestor will take instead of her descendant
> a predeceasing descendant with no living descendants does not take or count in
allocations under any system

Page 7

Page 8
Per Stirpes (by right of representation): goes to 1st gen (whether alive or dead with
descendants) in equal shares, then to second, etc
Situation:
A

E - F

Allocate shares to 1st generation among all those living or dead with descendants.
- if A & B survive D to A and to B
- if A does not survive D to C and to B
- if A & B do not survive D to C and to E and F
Per Capita w/ representation: [MO] divide equally in 1st generation that has living descendants
one share to each living descendant + allocate 1 share to each deceased descendant
that has living descendants; repeat process until share of deceased descendant is
exhausted
Make 1st cut at 1st generation at which there are surviving descendants
Situation:
A

E - F

Allocate 1 share per each living descendant at 1st level with surviving descendants,
If A and B survive D each takes
If B predeceases D but A survives D C takes and E and F take each
If A and B predecease D C, E, and F will take 1/3 each
Per Capita at each generation: divide equally at 1st generation down with living descendants;
then combine shares of deceased descendants at that generation and distribute shares
equally among descendants children; repeat until estate is exhausted
one share is allocated for each living descendant and each deceased descendant
with surviving descendants
Situation:
A

E - F

Page 8

Page 9
If A and B predecease D but C survives C gets 1/3, As and Bs shares (1/3 each) are
combined and C, E, and F split the remaining combined 2/3 (2/9ths each)
Situation:
A

E - F

Here C gets and E and F get , b/c there is no share allocated to A (predeceased w/ no
surviving descendant)
Drafting:
> When you say descendants the default rule is to use some form of representation (the
form used as default by the state in which the will is probated)
provide specific method and that will control (ex: to my descendants per
stirpes)
* disposition of real estate
* disposition of personal property

controlled by the law of situs

controlled by law of domicile (at death)

Posthumous Children:
474.050: shall inherit as if born in decedents lifetime, but no right of inheritance accrues to
any person other than the children or descendants of the intestate, unless they
are born
and capable to take as heirs at the time of the intestates death (posthumous
collateral
relative does not take ex: sibling born after death of D)
Woodward (Mass, 2002):
> child conceived by the father 15 months after fathers death (artificially
conceived) was entitled to inherit if it could be proven that the father
consented to
the posthumous conception and agreed to support the child

Adoption: 3 types
1. Adoption by new family
- genetic parent give child up to adoptive parents
in almost all states, the rights are severed with the genetic family and
established with the adopted family [MO 474.060.1]
> in some states, child may inherit from genetic family as well as from adoptive
family but genetic family may not inherit from child after adoption

Page 9

Page 10
2. Stepparent adoption:
- new spouse of parent adopts child
- MO: cuts ties with old spouse (must have their consent for adoption to take
place) and establishes ties with new spouse of parent
3. Natural Relative Adoption
- reconfigure whole arrangement as if adopting person were the natural parents
> adopting Gmother becomes the mother for I.S. purposes
if you have an adoption out [Gparents adopt Gchild] and the Gparents
will estate to the Gchildren, the adopted out child will not
take no
longer considered a Gchild
474. 060
.1) adopted child is child of adopting parent and not genetic parents, except that this has
no effect on relationship btw genetic parent and child when there is adoption of child by
spouse of genetic parent
Children Born Out of Wedlock: CBOW
- English common law: couldnt take from anyone
- US history: could take from mother
> note: adoption makes the rules irrelevant
474. 060
.2) child born out of wedlock is child of the mother; and also of the father, if
- natural parents participate in marriage ceremony before / after birth (even if
marriage is void)
- paternity estab by adjudication before death of father / estab thereafter by clear
and convincing proof
paternity estab here is ineffective to qualify the father or his kindred to
take from / through child unless father has openly treated the child
as his
and has not refused to support the child
474.070: Legitimization by Marriage
- If a man has a child by a woman and later marries her & recognizes the child as his, that
child is legitimated
474.080: Issue of all marriage deemed null in law, or dissolved by divorce, are legitimate
Uniform Paternity Act: (encoded in RSMo)
Presumed Father if
- child born during marriage or w/in 300 days thereafter
- children born of parents whose marriage was invalid due to legal defect
- children born prior to marriage if father signed acknowledgement, consented to
name on birth certificate, or there was order of court
otherwise paternity must be proven

Page 10

Page 11

Uniform Parentage Act: action to prove paternity must be brought by childs 21st b-day.
MO SC says this doesnt apply to action to secure
inheritance
under 456.060.
Rule of Construction: terms of family status based on IS law
> if nothing is said, if CBOW can prove paternity, she will take
Class Gifts:
474.435
- halfbloods / adopted persons / persons born out of wedlock are included in class gift
terminology & terms of relationship in accordance w/ rules for deter
relationships for IS
purposes
WILLS
*Note: last valid will revokes all earlier wills (chronologically)
Execution Requirements:
- testator must have necessary capacity
- testator must not be subject to
> undue influence
> insane delusion
> fraud
Ways to revoke will:
- physical destruction
- inconsistent later document
- reference as revoked in later document
Contesting a Will:
- five grounds: absence of sound mind, undue influence, fraud, improper execution, lack
of testamentary intent
1) Standing: does the contestant have a pecuniary interest in the action?
will they get more $ if they win the contest
473.083: Who is Interested (able to sue)
> heir, devisee, trustee, or trust ben under another purported will and person who
has acquired all or part of the interest of such heir by purchase, gift,
devise, IS,
mortgage or lien is interested in the probate of the will

Page 11

Page 12
2) Grounds for Contesting Will:
A. General Testamentary Capacity: at time of will creation, testator must
1. know the natural objects of their bounty (spouse, children, etc)
2. be aware of his property (general awareness)
3. have general awareness of what the will does, and
4. have an understanding about how the above factors interrelate
only need to negate one of elements to invalidate entire will
5. [MO adds] understand the ordinary affairs of her life
Fountain:
proponents of will have burden of establishing testamentary capacity at
time of will creation
Lucid Interval: person that is incapable at periods can have capacity
if it can be proven that will was produced during
this
Circumstantial Evidence that can be used to determine testamentary capacity:
1. aberrational conduct
2. organic brain condition
3. opinion:
- true expert witnesses (no connection to facts of case):
psychiatrists, physician, accountant, etc
- fact witnesses: testators doctor, nurses, friends, ect
4. unnatural disposition: sudden changes from long term behavior
5. physical condition: can contribute to capacity
B. Undue Influence:
- mere fact that testator is influenced by others is not undue influence
2 ways to prove UI:
Hard way: show that
- testator was susceptible to UI (reliant on others);
- was there opportunity for UI;
- influencer did something improper; and
- will was product of improper actions by influencer (but for)
- unnatural disposition
Presumption method: show that
- confidence / fiduciary relationship exists
> formal: named in document
> assumed: testator has relied on this person
- influencer participated in will-making process
- influence got substantial portion of the estate
in MO: a presumption of UI gives the contestant a prima
facie case (can be submitted to the jury)

Page 12

Page 13
in some states, the presumption shifts the burden of proof
Vancil:
> presence of fiduciary at execution of will & exertion of influence
at exact moment of execution need not be shown
Factors showing UI: use with either method
- unnatural disposition of property / condition of testator
- changes made from a former will
- hostile feelings of beneficiary toward expected recipient
- remarks of beneficiary derogatory of contestant
- actions of beneficiary in discouraging visits by others
C. Insane Delusion: specific incapacity
- false belief as to particular facts (obsessive, no real existence)
- ID must have caused (but for) change in will
Honigman:
- if a person persistently believes supposed facts that have no real
existence (except in his perverted imagination) and conducts
himself upon
the assumption of their existence, he is suffering under an
insane delusion
will is bad when its depository provisions more likely than not were
caused or affected by the delusion
> when objection made on this ground and evidence given
showing such a delusion, proponent has duty to provide
basis for
said delusion
D. Fraud: intentional misrep of material fact
At Execution:
Ex: - having testator sign something he doesnt know is a will
- forgery
- induced testator to do something diff than they otherwise would have done
> must be material
E. Lack of Testamentary Intent:
* Holographic Will: entirely in testators handwriting, doesnt need witnesses
3) Procedure for Contesting Will:
- file objections at initial hearing
473.083: Statute of Lim
- 6 months after date of probate or rejection thereof, or
- 6 months after 1st publication of notice of granting of letters (whichever is later)

Page 13

Page 14
- proponents of will have burden to establish that, at time of will creation, decedent was
of sound and disposing mind and memory
Note: lack of capacity = whole will thrown out, Insane Delusion / Undue Influence / Fraud =
whole or part of will may be thrown out
Types of Devises:
Specific: identifiable at the time will was made (real estate,
General: usually gifts of cash amounts (liquidated from estate)
Residuary: everything else type of clause
> specific and general devises paid out first, then residuary
474.310 Who can make will
Person:
- of sound mind
- 18 yrs old / minor emancipated by adjudication, marriage, military duty
can devise real / personal property & body
* Power of Attorney = document that lays out what an agent can do on behalf of the principal
agent called Attorney in Fact
> used to avoid having a conservator appointed
* Conservator: court appoints agent when someone is incapacitated
Anticipating a Contest:
Actual anticipation, when
- testator veers sharply from traditional family lines of inheritance
- family fighting
- large charitable devises
- distant relatives are devisees (laughing heir)
What to do if you anticipate a contest:
a. write will in language the client will understand (not just form will)
b. dont make mistakes (they will be attributed to the client)
c. omit recitals (explanatory phrases)
d. have client write out dispositive scheme / reasons for disinheritance in own
hand and save it on file
e. take detailed notes on process
f. never use old witness (use lawyers in your office: can be tracked down later)
g. identification clause (whos who of family)
h. no-contest clause (in terrorem): says that share of will contestant is revoked
- most states will not enforce if there is probable cause for contest
- use these clauses selectively: if one person is completely disinherited by
the will, a no-contest clause will not keep that person from
contesting
they have nothing to lose
> juries dont like them very much (in finding valid will)
> cts do not favor them
i. consider videotaping the ceremony

Page 14

Page 15
> tape cant be will but can be evidence of the testators intent
j. scrupulously follow execution requirements
WILL EXECUTION
Attestation: what witnesses
Supernumerary: extra, unneeded witness
Subscription: signing will at the end of document
474.320: Will execution requirements
- in writing
- signed by testator or by some person at his direction in his presence
* note in the margin that someone else signed testators name if this is true
- attested to by two or more competent witnesses subscribing will in presence of testator
474.340: Nuncupative Wills
A nuncupative will may be made by a person only in peril of death, valid only if testator
dies of resulting peril, must be
- declared to be his will by testator before 2 disinterested witnesses
- reduced to writing by or under the direction of one of the witnesses w/in 30 days
after the declaration
- submitted for probate w/in 6 months after death
- Nuncupative will may dispose of personal property only and may not exceed $500
aggregate value
- Nuncupative will neither revokes or changes an existing will
474.350:
> a nuncupative will or any part thereof can be revoked by another nuncupative will
Will Qs:
- videotaped will is not valid
- signature:
> need some sort of mark (can be an X or other mark)
> signature must have been intended as an operative, validating act
- signed in testators presence (electronic presence phone doesnt count)
> Conscious presence test
> 2 ways for witnesses to become valid:
1. they see the testator sign
2. testator acknowledges the signature to witnesses
- witnesses do not have to be present at the same time as each other [in MO]
- witnesses need not know the contents of the will, but must know that it is a will
- testator / his agent must ask the witness to sign the will [often implied from
circumstances - MO]
> incomplete signature:
- if thats all testator wanted to sign, will is valid
- if testator intended to sign full name, will is invalid

Page 15

Page 16
- must testator see the witnesses sign?
witnesses must only be in presence of testator
Tests:
- line of sight: could have seen witnesses sign if they had been looking
> exception for blind people
- conscious presence: if witnesses (or signer on behalf of testator) are so
near at hand that they are w/in range of the
testators senses so that he knows
what is going on
MO: best bet is to meet both, test not yet chosen
- PS after signature
> no alterations after execution are valid
> before signing, most states allow this [MO is uncertain = witnesses are
supposed to sign at the end]
Practical notes:
- always put testators name at top and that it is a will
- include number of pages in and number pages
- will proper ends w/ testators signature, witnesss signatures are not part of counted will
pages
- include date
- have testator sign or initial each page (to prevent later fraud)
- Attestation Clause: witnesses are certifying that the ceremony / execution requirements
are met
Self-Proving Affidavit:
> certification by notary public that execution requirements were met
Making sure will is executed properly:
- ask testator to sign
- ask witnesses to sign as well (put witnesses addresses)
- attestation paragraph before witnesses signature
- have notary public notarize
COMPETENCY OF WITNESSES
History:
1676 rules of evidence: witness had to be disinterested in order to testify at a trial
1740: purging statue = takes some or all of devise away from interested witness in order
to save will
Interested witnesses:
2 Qs to ask:
1. what would witness get under will
2. what would witness get if will is bad

Page 16

Page 17
- if interested witness is a supernumerary, they can take their devise
- interested witness will lose benefit of will (take only as much under the will as
would have w/o will)
King Georges Law /
Majority rule: interested witness takes nothing unless an heir or beneficiary under prior
will, then they get lesser of gift under current will or amount he /
she
would receive if the current will was thrown out (under prior will,
if any,
or intestacy, if no prior will)
> supernumerary still takes
Modern Minority rule: modern law of evidence on competency of witnesses applies
MO rule
474.330: who may witness
- any person competent to be a witness generally in MO (could testify at trial)
- no will is invalid b/c attested to by interested witness, but any interested witness shall
unless will has two other disinterested witnesses forfeit as much as he would
take
under the will as far as that exceeds the value of what he would take intestate
- being a creditor of the estate or being named executor does not make one interested
unless it provides some personal & beneficial interest
* as much of a devise that fails due to purging witnesses is distributed by intestate
succession / antilapse
Attestation Clauses: phrased from the witnesses point of view, attesting that the elements of the
local statute have been followed
- if you can prove signatures, attestation clause gives you a prima facie case (presumption
of correct execution)
Self-Proving Affidavit: like an attestation clause except testator also signs it and the affidavit is
notarized
- in most states, raises a conclusive presumption that signature reqs have been met
- in MO; this is all the proof you need to probate the will
473.053: Testimony of Subscribing witnesses
1. at least 2 subscribing witnesses to a written will shall be examined if alive, competent
to testify, and otherwise available
> at least 2 shall testify to facts showing will execution in compliance w/ 474.320
* this does not alter rules of evidence for estab of will by solemn form or selfproved will
2. if either or both witnesses are dead, physically / mentally incapable, or whereabouts
are unknown, execution /attestation shall be proven by available subscribing

Page 17

Page 18
witnesses
evidence

(if any), and proof of handwriting of witnesses, or other such competent

473.065: When Probated

1. a will that appears to have required signatures and a certificate ( 474.337), showing
requirements of execution under 474.320 [if it has a self-proving affidavit] have
been
met, shall be probated w/o further proof.
> procedure for contest same as normal
474.337: Self proved will
1. written will may, at time of execution, or at later date be made self-proved by the
acknowledgement thereof by the testator and the witnesses, each made before an officer
authorized to administer oaths in MO, and evidenced by the officers certificate, under official
seal, attached or annexed to the will in form and content substantially as follows: [form]
2. An officer authorized to admin oaths in MO w/o a seal may include a statement that he
has no seal and reciting the facts which estab his authority (it will have the same effect as a seal).
474.360: A written will is valid if executed in compliance w/
- laws of this state
- laws, as of the time of execution, of the place where the will was executed
- laws of place where, at time of execution or testators death, she was domiciled, has
place of abode, or is a national
Disclaimer: allows devisee to reject gift, gift passes as it would have if person disclaiming had
pre-deceased the testator
- relates back to time of decedents death so that person never acquires ownership
> state rules and IRS rules apply (to avoid taxation for disclaimed gift)
> disclaimant can cause devise to go directly to her heirs and thus avoid double
taxation
> Qualified Disclaimer: one that meets rules to qualify for tax benefits
- disclaimer must be in writing and w/in 9 months of transfer time
- disclaimant cannot have accepted the disclaimed interest or benefited
from it
- property must go to someone other than the disclaimant, unless
disclaimant is the donors spouse

best

Disclaimer by other than devisee: UPC allows by personal representatives and by a

guardian / conservator when it is in a wards
interest

Estate of Parsons:

Page 18

Page 19
- will execution is time when witness must be competent: a disclaimer of a devise by an
interested witness does not affect how the will is treated (ex: 3 witnesses, 2 are
interested, one cannot disclaim interest in order to allow other to keep
interest under the
will)
COMPONENTS OF WILLS
Integration: what papers were present and intended to be part of the will at the time of the
execution ceremony
- only those pages in testators presence at time of execution count as
part of the will
Incorporation by Reference: gives testamentary effect to document not present at
execution ceremony
1) document must exist at time of execution ceremony
2) parties have an intention to incorporate the outside document
3) will must refer to document sufficiently to allow its identification
In some places:
4) will must say that document is in existence
* UPC does not require #4

will is

> UPC allows wills to refer to a separate signed writing that identifies who gets
particular items of tangible personal property (can be changed after the
executed)
Doctrine of Republication by Codicil: when a codicil is executed it republishes the will
as of that date affirms all parts of will not
changed by codicil
Codicil: amendment to a will that supersedes will only in part
- if it totally supersedes prior document, it revokes will in its entirety

Simon v Grayson: Not necessary to identify informal document w/ exact precision

- it is enough that the descriptive words and extrinsic circumstances combine
to produce a reasonable certainty that the document in question is the
one
referred to by the testator in his will
a letter that postdates the will can be incorporated by reference if the will is afterwards
republished by a codicil and codicil postdates letter
Safeguarding Wills: correct practice is that the original will should be delivered to the testator,
and should only be kept by the attorney upon specific unsolicited
request of
the client
Doctrine of Non-Testamentary Acts / Acts of Independent Significance:
When you draft will and refer to people in will, its common to refer to them by class

Page 19

Page 20
Class gift: ex = gift to my children
> class can expand / contract depending on circumstances
- act of procreation is not entered into for purposes of will but changes
devise b/c it adds devisees
Ex: I give my car to my son & testator gets much nicer car before death
- independent significance of car purchase allows devisee to take nicer car
broader descriptions (of property or classes) the more likely it is that this
doctrine will apply
Independent Significance: things that have a non-testamentary significance can be used to
devise gifts in a will, while things that have no independent
significance cannot
Ex: A will can devise to each of the members of the rotary club b/c this membership
has independent significance (a devise to the persons on the list in my
drawer has
no independent significance but may be admissible under
incorporation by
reference)
474.333: Side-letters
A will may refer to a written statement or list to dispose of items of tangible personal
property not otherwise specifically disposed of (other than money, evidence of indebtedness,
documents of title, securities, and property used in trade or business)
To be admissible, writing must
- be either in handwriting of testator or be signed by the testator,
- be dated, and
- describe the items / devisees w/ reasonable certainty
Writing May:
- be referred to as one to be in existence at the time of the testators death
- be prepared before or after the execution of the will
- be altered by the testator after its preparation, and
- be a writing that has no significance apart from its effect upon dispositions made
by the will
(avoids doctrines of incorporation by reference and independent
significance)
*Problems w/ side letters:
- non binding in some states
- testators make mistakes
- doodling / changing side letter makes them invalid in some states

Page 20

Page 21

REVOCATION
3 ways to revoke:
1) physical destruction
2) later inconsistent will (revokes earlier document to extent of inconsistencies)
3) later will that expressly revokes earlier document
- use titles to earlier documents (dates for wills and numbers for codicils)
- revoke all prior wills / codicils
* always use #3 in practice (ex = I revoke all prior wills and codicils)
- do not put the above language in a codicil
Lost will, have to prove
- will existed
- content of will
> best way is for lawyer to keep a Xerox of the will, not an original
474.400: Ways to Revoke Will
> no written will or any part thereof, shall be revoked except by a subsequent will in
writing or by burning, canceling, tearing, or obliterating same by the testator, or
in his
presence and by his consent and direction
Physical acts require:
1. completion of act
2. revocatory intent of testator
Canceling = physical defacement of will
- if signature is cancelled, intent was probably to revoke whole will
- if one paragraph is defaced, probably not revocation of full will
Physical Revocation issues
Revocation of Codicil but not will: If testator intends to revoke will as well, its revoked
- generally, will is not considered revoked by revocation of codicil
Revocation of Will but not codicil: If testator intends to keep codicil, it is not revoked
- revocation of will generally does revoke codicil
In re Will of McGill: Letter requesting will to be destroyed / revoked is not enough to actually
revoke the will (letter must revoke the will itself)
Thompson v Royall: revocation by cancellation contemplates marks or lines across written parts
of will, defacement, or some mutilation of the writing with intent to
revoke

Page 21

Page 22

Revocation by inconsistent document

If there is a complete disbursement of the estate under Will 2, Will 1 is revoked
If codicil expressly revokes prior will, works well
A later will-like document expressly revoking a specific will works well (just a letter or
note produced with will execution requirements)
Duplicate wills:
A Xerox copy is not a duplicate will
- duplicates only include wills actually executed
> Should only sign one will if copies are needed, why
- only have to physically revoke one will to revoke all
- lost will is presumed to be physically revoked by testator
Revival:
- Will 2 (that revokes Will 1) is revoked by later document not making a disposition or by
physical act
Approach 1: Will 1 is revived
Approach 2: Will 1 is gone forever
Approach 3 [MO / old UPC]:
474.410: Revocation of subsequent will
1. if a 2nd will which, if it had been effective at death, would have
revoked the 1st will in whole or part, is thereafter revoked
by
physical act under 474.400, the 1st will is revoked in
whole or
part
> unless it is evident from the circumstances of revocation
of will 2 or from testators contemporary or
subsequent
declarations that he intended the 1st will to
take effect as
executed
2. if a 2nd will which, had it remained in effect at death, would
have revoked the 1st will in whole or part, is thereafter
revoked
by a 3rd will (or other written document), the 1st
will is revoked
in whole or in part, except to the extent it
appears from the
terms of the 3rd will that the testator
intended the 1st will to take
effect
Dependant Relative Revocation (DRR):
- testator revokes Will 1 relying on the validity of Will 2
1) circumstances must show that revocation of first will was on assumption that
second will was valid
2) DRR is a presumption only

Page 22

Page 23
3) the court will look back and try to determine if the testator intended to keep
will 1 if will 2 was not valid (if yes, DRR may be used)
- if Wills 1 and 2 are very close, DRR may be applied
- if W1 and W2 are very different, court will probably use IS instead of
DRR
Ex: IS gives to A and B, W1 gives to C, and W2 gives to D =
DRR not applied to situations like this
- Doodle pad problem: alterations made to will not effective unless execution
requirements are re-achieved at time of alteration
> decedents changes cannot be honored
> decedent crosses out old provision on assumption that alteration was good
- if devise is reduced, no DRR to let devisee take under W1
- if devise is increased, DRR can allow original number from W1
473.043 Will, how delivered and handled
1. at death of testator, person having custody of will shall deliver it to probate division of
circuit court having J over estate (or ct having J over where will was found
they
should copy and deliver original to former ct)
2. wills found in safe deposit boxes are in custody of depositor (it can make copy before
delivering)
3. if ct is informed that person has will and wont produce it, ct may summon person and
compel him by attachment and commitment to produce the same
474.510 Deposit of will in court in testator's lifetime
1. A will may be deposited by the person making it, or by such person's agent, with the probate
division of any circuit court, to be safely kept until delivered or disposed of as hereinafter
provided. The clerk of the court shall receive and keep the will, and give a certificate of deposit
for it.
2. Every will intended to be deposited shall be sealed in an appropriate manner approved by the
circuit court, en banc, subject to administrative rules of the supreme court, which shall have
endorsed thereon "Will of", followed by the name of the testator. The clerk of the court shall
endorse thereon the day when, and the person by whom, it was delivered. The wrapper may also
be endorsed with the name of the person to whom the will is to be delivered after the death of the
testator. It shall not be opened or read until delivered to a person entitled to receive it, or
otherwise disposed of as hereinafter provided.
3. During the lifetime of the testator, the will shall be delivered only to such testator, or to some
person authorized by such testator by an order in writing duly proved by the oath of a
subscribing witness. After the testator's death, the clerk shall notify the person named in the

Page 23

Page 24
endorsement on the wrapper of the will, if there is a person so named, and deliver it to such
person.
4. If the will is not delivered to a person named in the endorsement on the wrapper, it shall be
publicly opened in the court within thirty days after notice of the testator's death, and be retained
by the court until offered for probate. Notice shall be given to the executor named therein and to
such other persons as the court may designate. If the proper venue is in another court, the will
shall be transmitted to such court; but before such transmission a true copy thereof shall be made
and retained in the court in which the will was deposited.

TRUSTS
Settlor / Grantor: one who makes trustee
> aka: Donor / Trustor (do not use these)
Trustee: manager of the trust
> has legal title of property transferred to the trust
> owes obligations to the beneficiaries (fiduciary obligation)
Beneficiary: holds equitable title of property transferred to trust
2 different general classifications
- beneficiary for life
> will always have a successor element
- beneficiary until a certain age
> will have contingent beneficiaries
> concurrent interests: several beneficiaries have interest at the same time
- avoids creating multiple trusts
can have multiple Settlors / Trustees / Beneficiaries

Types of Trusts:
1) Inter Vivos trust: property transferred into trust during Settlors lifetime
Revocable / Irrevocable:
Revocable: Settlor can get the property back or amend instrument
- revocation: does Settlor intend to revoke the Trust
Irrevocable: cannot be changed
Trust instrument should say whether its revocable or not

Page 24

Page 25

Trustee:
Settlor can be trustee (self-declaration of trust)
> imposes fiduciary duty on Settlor over his own property
> revocable trusts often used when Settlor is trustee

2) Testamentary: property goes into trust at time of Settlors / Testators death

- execution requirements are that of will b/c its basically a will provision
Always irrevocable: b/c they do not exist until testator is dead
- will revocation law if living testator wants to change
- Court supervision often retained over the testamentary trust after probate of the estate
[not the rule in MO]
Advantages of Trust over Will:
- avoid guardian / conservator for minor or person w/ other incapacity
> allows Settlor to choose age at which beneficiary gets $ from trust
[if guardian is appointed, minor is entitled to property at age 18]
- avoid probate
- revocable trust is a good way to prepare for own incapacity with successor trustee
- control of ultimate takers in second marriage situations
> allows 2nd spouse to be a beneficiary for life and then to children of 1st spouse
3) Constructive Trust: a remedy imposed by a ct to prevent the unjust enrichment of one who
wrongfully acquires property
> legal fiction: wrongful holder is deemed to hold equitable interest in property in trust
for the true owner (wrongful holder is automatically divested of
legal title)
4) Resulting Trust: Settlor fails to dispose of all of the equitable interest in property, inference is
that Settlor wanted it to revert back to her (functions like a reversion, but in
equity instead of law)
Ex: trust which has beneficiary of C for life: C has equitable title for life, but then there
is no holder of equitable title, trustee has legal title which is extinguished and
property is given back to settlor
4&3 are part of the law of remedies and are not covered in the UTC
Sources of Trust law: descending order of importance
1) uniform trust code (unless inconsistent w/ case law in state)
2) comments
3) restatement of trusts

Page 25

Page 26
4) restatement of property (wills and other donative transfers)
5) reporters notes from restatements
6) treatises: Scott on Trusts, Bogert on Trusts
Uniform trust act applies to
- charitable / non-charitable
- testamentary / inter vivos
Requirements for a Trust:
Intent: intention of Settlor to make trust
Property: trust created only at such point as property is transferred to the trustee
Trustee: trust will not fail for lack of a trustee, court will appoint one
Beneficiary: if a trust does not have a beneficiary, the trust fails
456.1-106
The common law of trusts and principles of equity supplement sections 456.1-101 to
456.11-1106, except to the extent modified by sections 456.1-101 to 456.11-1106 or
another statute of this state.
means that statute is not the sole source of the law
456.1-102.
Sections 456.1-101 to 456.11-1106 apply to express trusts, charitable or non-charitable,
testamentary or inter vivos, and trusts created pursuant to a statute, judgment, or decree
that requires the trust to be administered in the manner of an express trust. Sections
456.1-101 to 456.11-1106 do not apply to any trust created by the inherent power of the
court pursuant to chapter 460, RSMo.
Express Trusts:
Rules of Construction:
descendants: if used it is assumed that the representation scheme of that state was intended [as
long as no other intention is manifested by the document]
Ex: in mo = per capita w/ representation
456.1-105: [supp pg 1]
Requirements fundamental to law of trusts (immutable default rules)
- requirements for creating a trust
- duty of trustee to act in good faith and in accordance w/ purposes of trust
- requirement that trust and its terms must be for benefit of beneficiaries
Creation of Trust:
Methods:
- inter vivos

Page 26

Page 27
- beneficiary designation
- testamentary
456.4-401. A trust may be created by:
(1) transfer of property to another person as trustee during the settlor's lifetime or by will or
other disposition taking effect upon the settlor's death;
(2) declaration by the owner of property that the owner holds identifiable property as trustee;
[owner still has legal title, but holds as trustee]
Property should be re-registered to owner as trustee
(3) exercise of a power of appointment in favor of a trustee; or
(4) a court under section 475.092, 475.093, or 511.030, RSMo.
Requirements for creating a trust:
1) capacity
2) intent
3) definite beneficiary
4) trustee has active duties
- cant have merger: if legal and equitable title are in the same person, merger applies and
the titles merge giving that person ownership (ending trust)
> if Settlor is also the sole trustee & beneficiary, no trust is created
5) purpose
- every trust must have a purpose (doesnt need to be stated)
> must not be illegal or violation of public policy
> must be created for benefit of beneficiary (not a frivolous purpose or to preserve
memory of the Settlor)
- may be invalid if unduly restricts ability to marry or conditions benefit on
divorce
- religious restrictions may also cause trust purpose to violate public policy
Charitable Trusts: must have a definite purpose
456.4-405.
1. A charitable trust may be created for the relief of poverty, the advancement of
education or religion, the promotion of health, governmental or municipal purposes, or
other purposes the achievement of which is beneficial to the community.
2. If the terms of a charitable trust do not indicate a particular charitable purpose or
beneficiary, the court may select one or more charitable purposes or beneficiaries. The
selection must be consistent with the settlor's intention to the extent it can be ascertained.

Page 27

Page 28
3. The settlor of a charitable trust, among others, may maintain a proceeding to enforce
the trust.
Grounds to Contest a Trust:
- capacity
- intention
- fraud, duress, or undue influence (456.4-406)
456.4-402. 1. Other than for a trust created by section 475.092, 475.093, or 511.030, RSMo, a
trust is created only if:
(1) the settlor has capacity to create a trust;
[testamentary capacity for testamentary trust and revocable (456.6-601); K capacity for
irrevocable trust]
(2) the settlor indicates an intention to create the trust;
(3) the trust has a definite beneficiary or is:
(a) a charitable trust;
(b) a trust for the care of an animal, as provided in section 456.4- 408; or
(c) a trust for a noncharitable purpose, as provided in section 456.4-409;
(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole beneficiary. (doctrine of merger: legal title
and equitable title are the same no trust is created)
Ex: to A for life and then to my estate = no trust
2. A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to
any applicable rule against perpetuities.
- friends = not sufficiently definite
- dog = cant enforce interest so invalid at common law [statutory exception applies ]
- descendants = sufficiently definite
> class gifts are ok
3. A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not
exercised within a reasonable time, the power fails and the property subject to the power passes
to the persons who would have taken the property had the power not been conferred.
* pour-over will, revocable trust with a will that puts more assets in it (assets pour over into the
trust)
Oral Trust:
- property will be transferred to one child and your theory will be that a trust was
intended for benefit of other children
> look for oral statement made by grantor of property
456.4-407: must be proven by clear and convincing evidence
trust of real estate must be in writing, signed by the settlor
Law of Trust Creation:

Page 28

Page 29

456.4-403. A trust not created by will is validly created if its creation complies with the law of
the jurisdiction in which the trust instrument was executed, or the law of the
jurisdiction in which, at the time of creation:
(1) the settlor was domiciled, had a place of abode, or was a national;
(2) a trustee was domiciled or had a place of business; or
(3) any trust property was located.
Florida is the only state that requires witnesses for trust creation
Honorary Trust:
> trustee could carry out trust terms but could not be forced to b/c beneficiary could not
sue to enforce (violates common law but allowed anyway)
Trust for Benefit of Animal: allows a real (not honorary trust) to be created by appointing
someone to enforce trust
- if its for a large # of animals, it could be a charitable trust
456.4-408. Animals
1. A trust may be created to provide for the care of an animal alive during the settlor's lifetime.
The trust terminates upon the death of the animal or, if the trust was created to provide for the
care of more than one animal alive during the settlor's lifetime, upon the death of the last
surviving animal.
2. A trust authorized by this section may be enforced by a person appointed in the terms of the
trust or, if no person is so appointed, by a person appointed by the court. A person having an
interest in the welfare of the animal may request the court to appoint a person to enforce the trust
or to remove a person appointed.
3. Property of a trust authorized by this section may be applied only to its intended use, except to
the extent the court determines that the value of the trust property exceeds the amount required
for the intended use. Except as otherwise provided in the terms of the trust, property not required
for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's
successors in interest.
Trust for Purposes (no human beneficiary):
456.4-409. Except as otherwise provided in section 456.4-408 or by another statute, the
following rules apply:
(1) A trust may be created for a non-charitable purpose without a definite or definitely
ascertainable beneficiary or for a non-charitable but otherwise valid purpose to be selected by the
trustee. The trust may not be enforced for more than twenty-one years.

Page 29

Page 30

(2) A trust authorized by this section may be enforced by a person appointed in the terms of the
trust or, if no person is so appointed, by a person appointed by the court.
(3) Property of a trust authorized by this section may be applied only to its intended use, except
to the extent the court determines that the value of the trust property exceeds the amount required
for the intended use. Except as otherwise provided in the terms of the trust, property not required
for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's
successors in interest.
Ex: cemetery trusts
REVOCABLE TRUSTS
- in some states trust is irrevocable unless settlor expressly reserves the right to revoke and
defines the extent of the reserved powers
- settlor is subject to state / federal tax on revocable trust property
456.6-601. Capacity:
- The capacity required to create, amend, revoke, or add property to a revocable trust, or
to direct the actions of the trustee of a revocable trust, is the same as that
required to
make a will.
Farkas: self-declared trust (settlor names himself as trustee)
> in the case of an inter vivos trust, beneficiary has a future interest & not just an
expectancy interest as under a will (upheld revocable trust with remainder)
to have a valid non-probate transfer outside of a will, there must be an enforceable
interest
Practical note:
> successor trustee provision: triggered by trustees incapacity, provides replacement for
that trustee (avoid conservator-ship)
Fiduciary Accounts:
1. principal account: property transferred to the trust, sales/proceeds of principal assets
2. income account: what principal produces on a regular, recurring basis rent,
dividends, interest
Uniform Act governs these accounts
Safeguards for making a revocable trust:
> have settlor sign trust document
> get trust document notarized
(validates signature and allows trust document to be recorded)

Page 30

Page 31
> schedule of assets (shows that trust is operational)
> draft in 1st person
- can transfer provisions from will to trust w/o changing
> have 2 sets of provisions w/ regard to capacity
- capacity
- incapacity
> relating to distribution and who is the trustee
> procedure in document for establishing incapacity
- certification by professional (MD or psychologist)
- sometimes good idea to have family member make decision reliant on the
certification (professionals reluctant to get too involved)
Presumption of Revocable Trust:
- in many states, trust is presumed revocable if it does not say
should put revocable in title, insert express provision of revocability in trust
Revocation Provision:
- should specify procedure for revoking (must follow procedure though, when revoking)
To avoid probate, one must hold assets in non-probate form
> POD, payable on death arrangement
> JT in real estate
> life insurance
> benefit plans
> trust w/ post death provisions, settlor must re-register all assets into trustee name
Planning for incapacity: if all the assets are in the R trust, the settlors needs can be addressed in
one of the provisions w/ their assets providing the principal
*If all assets are in the trust, there is no reason for a will
Pour-over Provision:
- puts some or all of estate into the trust (give to trustee then acting)
Problems with Incorporation by reference: requires that trust instrument pre-date the will
- amendment to the trust (not an act of independent significance)
can use a codicil to republish trust with amendment
UTATA:
- sought to deal with the same person being testator and settlor of the trust, and
- pour-over of assets into trust of pre-deceased spouse
456.021. Pour Over Provision

Page 31

Page 32
A devise, the validity of which is determinable by the law of this state, may be made by a will, to
the trustee or trustees of a trust established or to be established by the testator or by the testator
and some other person or persons or by some other person or persons, including a funded or
unfunded life insurance trust, although the settlor thereof has reserved any or all rights of
ownership of the insurance contracts, if the trust is identified in the testator's will and its terms
are set forth in a written instrument. The devise shall not be invalid because the trust is
amendable or revocable, or both, or because the trust was amended after the execution of the
will, or the death of the testator. Unless the testator's will provides otherwise, the property so
devised:
(1) Shall not be deemed to be held under a testamentary trust of the testator or transferor but
shall become a part of the trust to which it is given; and
(2) Shall be administered and disposed of in accordance with the provisions of the instrument or
will setting forth the terms of the trust, including any amendments thereto made before the death
of the testator or transferor, regardless of whether made before or after the execution of the
testator's will and, if the testator's will so provides, including any amendments to the trust made
after the death of the testator. A revocation or termination of the trust before the death of the
testator shall cause a devise to the trustees of that trust to lapse.
- revocation of trust also automatically revokes pour-over provision
456.6-602. Trust Presumed Revocable
1. Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may
revoke or amend the trust. This subsection does not apply to a trust created under an instrument
executed before January 1, 2005.
2. If a revocable trust is created or funded by more than one settlor:
(1) to the extent the trust consists of community property, the trust may be revoked by either
spouse acting alone but may be amended only by joint action of both spouses; and
(2) to the extent the trust consists of property other than community property, each settlor may
revoke or amend the trust with regard to the portion of the trust property attributable to that
settlor's contribution.
3. The settlor may revoke or amend a revocable trust:
(1) if the terms of the trust provide a method of amendment or revocation, by substantially
complying with any method provided in the terms of the trust; or
(2) if the terms of the trust do not provide a method, by any other method manifesting clear and
convincing evidence of the settlor's intent, including the terms of a later duly probated will or
codicil that identify the trust being revoked or the trust terms being amended.

Page 32

Page 33
4. Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor
directs.
5. A settlor's powers with respect to revocation, amendment, or distribution of trust property may
be exercised by an agent under a power of attorney only to the extent expressly authorized by the
terms of the trust or the power.
6. A conservator of the settlor or, if no conservator has been appointed, a conservator ad litem of
the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution
of trust property only with the approval of the court supervising the conservator or the
conservator ad litem.
7. A trustee who does not know that a trust has been revoked or amended is not liable to the
settlor or settlor's successors in interest for distributions made and other actions taken on the
assumption that the trust had not been amended or revoked.
Disclosure of Info concerning the trust
[under will, there is no duty to inform the beneficiary]
Revocable trust: basically to settlor for life and then to others
Farkas: beneficiaries have a property interest
Trust law Obligation: duty of trustee to keep the beneficiaries reasonably informed
> how can it be kept secret? in MO
456.6-603.
1. 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 are owed exclusively to,
the settlor.
2. A settlor is presumed to have capacity for the purposes of subsection 1 of this section until
either the settlor is adjudicated totally incapacitated or disabled or the trustee has received an
affidavit of incapacity.
3. If a revocable trust has more than one settlor, the duties of the trustee are owed to all of the
settlors having capacity to revoke the trust.
4. 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.
5. In this section, an "affidavit of incapacity" means a written certificate furnished by at least one
licensed medical doctor that states that the settlor lacks capacity to revoke the trust.

Page 33

Page 34
MO has 1 year absolute bar on admittance of will to probate

Statute of Limitations for contesting Revocable Trusts:

456.6-604.
1. A person may commence a judicial proceeding to contest the validity of a trust that was
revocable at the settlor's death within the earliest of:
(1) two years after the settlor's death;
(2) six months after the trustee sent the person a copy of the trust instrument and a notice
informing the person of the trust's existence, of the trustee's name and address, and of the time
allowed for commencing a proceeding [allows trustee to speed up limitation]; or
(3) in the case of a trust that was revocable at the settlor's death that is entitled to a distribution
under the settlor's will, on the date that any contest of that will is barred under the provisions of
section 473.083, RSMo, provided that a copy of the trust instrument was filed with the probate
division within ninety days of the first publication of notice of granting of letters on the estate of
the decedent under section 473.033, RSMo.
Types of Trust provisions:
- accounting at least annually
Compute: interest / dividends / rents
Mandatory Income trusts: trustee directed to distribute income
> dividends are only amount included in the income amount (interests / rents not
necessarily paid out)
Support trusts: provide support for beneficiary
> support is heavily litigated / hard to determine [makes these quite rare]
> most trusts will give trustee some amount of discretion
Spendthrift Provisions:
- prohibits beneficiary from assigning her interest in the trust
- creditors cant attach the interest
Typical Pattern:
Mandatory Income provision
trustee has some discretion to distribute principal

Page 34

Page 35
[many trusts will give trustee discretion as to income and principal]
Discretionary Provision Issues:
- range of discretion: (trust had purpose and purpose has to be for benefit of beneficiaries,
beneficiary has enforceable rights)
> determined by language of the provision
- purpose: such as to provide for college education / support / best interest of the
beneficiary / happiness [rare and not very useful]
Abuse of discretion:
> trustee distributes too much or too little
Too much distributed: remedy is to make trustee replace $
Too little distributed: remedy is to make trustee distribute more
> encourages conservative distributions
456.8-814. Duty notwithstanding breadth
1. Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust,
including the use of such terms as "absolute," "sole," or "uncontrolled," the trustee shall
exercise a discretionary power in good faith and in accordance with the terms and
purposes of the trust and the interests of the beneficiaries.
Common Fund Theory:
> if litigation is deemed to be for the benefit of the trust as a whole, the legal fees
can be paid out of the trust fund
Trust used for planning for minor children:
Guardian: makes personal decisions for the child (substitute parent)
Conservator: makes the significant financial decisions for the child
- if the ward has title to property in her own name, appoint a conservator
- terminates at age 18
estate plan often includes an alternative to conservator-ship
> trust can avoid conservator-ship and parents can set guidelines
- trust does not address a gap in legal custody, a guardian must be appointed
> will can nominate a guardian
- presumption: person that parents nominate is best candidate
Some Will provisions:
> tangible personal property provision (often forgotten by owners)
> guardianship nomination
> residue
residuary provision outright to spouse w/ pour-over provision to trust for the
children

Page 35

Page 36
issues for creating trust
- separate equal shares (separate trusts) or one pot?
> generally, w/ older children & closer age separate shares are
chosen
residue put in trust created by will
- name primary beneficiary and trustee (contingent beneficiary)
- discretion
breadth: ex trustee believes is appropriate
purpose: (limits range) ex medical care, education, support
> define terms for more control over trustee
Other Trust Provisions:
- discretion to determine when to end trust
- what happens of child dies before becoming old enough to take $ of trust
> power of appointment
> if beneficiary dies w/o living descendants, to the settlors then living
descendants
Guardianship Provisions:
Appoint 2: spreads responsibility, but can cause problems (especially if you appoint a
married couple and they get divorced)
Posting Bond: % bond must be posted by guardian / conservator
> instrument can waive bond
- testator should talk to proposed guardian b/c they do not have to accept this duty
> religious faith provisions can cause problems
guardian provision in a will produces a presumption that that person should be
nominated (same provision in other document does not produce this
presumption)
CREDITOR RIGHTS
Attachment: try to find assets of the debtor and attach them
Wages: protected in part
Life Insurance / retirement plan: at least partially protected
Garnishment of bank account is possible
Trust attachment: absent a spendthrift provision, creditor can attach beneficiarys interest

assets if

If spendthrift provision: unless public policy exception, creditor cannot attach

beneficiarys interest (creditor can go after trust
trustee has not paid trust bills)
creditor must wait for a distribution to be made
Exceptions:
- federal preemption (IRS will get its $)
- self-settled trust (settlor is a beneficiary)

Page 36

Page 37
> creditor can reach whatever trustee could have distributed
to settlor
- claims by creditors that provided support to beneficiary
- claims for alimony or child support

In preparation for support of a child w/ limited liability to creditors

- spendthrift provision: so they cant attach interest
- wide discretionary provision: creditor can only force distribution that beneficiary
could have forced in court proceeding (trustee can
just hold $ w/ impunity)
> public policy exception for alimony / child support, but still cant get
more than beneficiary could have sued for
456.5-501: Creditors Rights
To the extent a beneficiary's interest is not protected by a spendthrift provision, an
assignee or a judgment creditor of the beneficiary may, without court order, reach the
beneficiary's interest by attachment of present or future distributions to or for the benefit of the
beneficiary or other means. The court may limit the award to such relief as is appropriate under
the circumstances.
456.5-502: Spendthrift Provision
1. A spendthrift provision is valid if it restrains either the voluntary or involuntary transfer or
both the voluntary and involuntary transfer of a beneficiary's interest.
2. A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift
trust," or words of similar import, is sufficient to restrain both voluntary and involuntary
transfers of the beneficiary's interest.
3. A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision
and, except as otherwise provided in sections 456.5-501 to 456.5-507, a creditor or assignee of
the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the
beneficiary.
456.5-503. 1. [exceptions to spendthrift] In this section,
(1) "Child" includes any person for whom an order or judgment for child support has been
entered in this or another state, and
(2) "Judgment" means a judgment which may be executed in this state.
2. Even if a trust contains a spendthrift provision, a beneficiary's child, spouse, or former spouse
who has a judgment against the beneficiary for support or maintenance, or a judgment creditor

Page 37

Page 38
who has provided services for the protection of a beneficiary's interest in the trust, may obtain
from a court an order attaching present or future trust income. If there is more than one
permissible distributee, the court may grant relief as is equitable under the circumstances.
3. A spendthrift provision is unenforceable against a claim of this state or the United States to the
extent a statute of this state or federal law so provides.

a creditor may not compel a distribution if beneficiaries interest is subject to a discretionary

provision

456.5-504. Creditor cant compel distribution subject to discretion

1. Except as otherwise provided in section 456.5-503, whether or not a trust contains a
spendthrift provision, a creditor of a beneficiary may not compel a distribution that is subject to
the trustee's discretion, even if:
(1) the discretion is expressed in the form of a standard of distribution; or
(2) the trustee has abused the discretion.
2. This section does not limit the right of a beneficiary to maintain a judicial proceeding against a
trustee for an abuse of discretion or failure to comply with a standard for distribution.
TRUST MODIFICATION / TERMINATION
Most trusts will terminate as provided in the instrument
Common Law:
- settlor, with consent of beneficiaries may always terminate even if irrevocable
- beneficiaries, w/o settlors consent, may terminate or modify if continuation of the trust
on existing terms no longer serves a material purpose [48 states, not MO]
Must have:
- consent of all beneficiaries
- lack of material purpose
- [British law] beneficiaries have the right to terminate trust [MO follows this]
> problem is getting all the beneficiaries together (minors/unborn/undetermined)
>> if adult competent beneficiaries consent, interests of those who were
not able to consent was found to be represented
> material purpose may exist (not problem in MO)
- an admin term may be modified due to circumstances not known to / anticipated by
settlor (new law, inflation, ect)

Page 38

Page 39

Reforming trusts:
- inter vivos (but not testamentary trust) may be reformed due to a mistake of fact / law
> UTC extends reformation to testamentary trusts
Ex: error in drafting, ect
MUTC (Missouri Uniform Trust Code):
456.411A - follows common law and UTC in allowing settlor and beneficiaries to jointly
terminate a non-charitable & irrevocable trust
1. A noncharitable irrevocable trust may be modified or terminated upon consent of the settlor
and all beneficiaries, without court approval, even if the modification or termination is
inconsistent with a material purpose of the trust. A settlor's power to consent to a trust's
termination or modification may be exercised by an agent under a power of attorney only to the
extent expressly authorized by the power of attorney or the terms of the trust; by the settlor's
conservator with the approval of the court supervising the conservatorship if an agent is not so
authorized; or by the settlor's conservator ad litem with the approval of the court if an agent is
not so authorized and a conservator has not been appointed.
2. Upon termination of a trust under subsection 1 of this section, the trustee shall distribute the
trust property as agreed by the beneficiaries.
3. If not all of the beneficiaries consent to a proposed modification or termination of the trust
under subsection 1 of this section, the modification or termination may be approved by the court
if the court is satisfied that:
(1) if all of the beneficiaries had consented, the trust could have been modified or terminated
under subsection 1 of this section; and
(2) the interests of a beneficiary who does not consent will be adequately protected.

456.4-411B - allows adult beneficiaries to terminate irrevocable trust whether or not trust still
has a material purpose. Based on British law. Role of court is solely to
protect
interest of non-adult beneficiaries, not to prevent termination
1. When all of the adult beneficiaries having the capacity to contract consent, the court may,
upon finding that the interest of any nonconsenting beneficiary will be adequately protected,
modify the terms of a noncharitable irrevocable trust so as to reduce or eliminate the interests of
some beneficiaries and increase those of others, change the times or amounts of payments and
distributions to beneficiaries, or provide for termination of the trust at a time earlier or later than
that specified by its terms. The court may at any time upon its own motion appoint a

Page 39

Page 40
representative pursuant to section 456.3-305 to represent a nonconsenting beneficiary. The court
shall appoint such a representative upon the motion of any party, unless the court determines
such an appointment is not appropriate under the circumstances.
2. Upon termination of a trust under subsection 1 of this section, the trustee shall distribute the
trust property as directed by the court.
3. If a trust cannot be terminated or modified under subsection 1 of this section because not all
adult beneficiaries having capacity to contract consent or the terms of the trust prevent such
modification or termination, the modification or termination may be approved by the court if the
court is satisfied that the interests of a beneficiary, other than the settlor, who does not consent
will be adequately protected, modification or termination will benefit a living settlor who is also
a beneficiary, and:
(1) in the case of a termination, the party seeking termination establishes that continuance of the
trust is not necessary to achieve any material purpose of the trust; or
(2) in the case of a modification, the party seeking modification establishes that the modification
is not inconsistent with a material purpose of the trust, and the modification is not specifically
prohibited by the terms of the trust.
4. This section shall apply to trusts created on or after January 1, 2005. The provisions of section
456.590 shall apply to all trusts created prior to January 1, 2005.

456.4-412 - follows UTC in allowing either administrative or dispositive term to be terminated

or modified for unforeseen circumstances
1. The court may modify the dispositive terms of a trust or terminate the trust if, because of
circumstances not anticipated by the settlor, modification or termination will further the
purposes of the trust. To the extent practicable, the modification must be made in accordance
with the settlor's probable intention.
2. The court may modify the management or administrative terms of a trust if modification will
further the purposes of the trust.
3. Upon termination of a trust under this section, the trustee shall distribute the trust property in a
manner consistent with the purposes of the trust.
456.4-415 - follows UTC in allowing either inter vivos or testamentary trust to be reformed on
account of mistake
The court may reform the terms of a trust, even if unambiguous, to conform the terms to the
settlor's intention if it is proved by clear and convincing evidence that both the settlor's intent and

Page 40

Page 41
the terms of the trust were affected by a mistake of fact or law, whether in expression or
inducement.

Charitable Trusts: trust that has a charitable purpose

- beneficiary is not a definite person (does not fail for lack of definite beneficiary)
- not subject to rule against perpetuities
- tax codes 170/7065: charitable deductions
Charitable purposes:
456.4-405.
1. A charitable trust may be created for the relief of poverty, the advancement of
education or religion, the promotion of health, governmental or municipal
purposes, or other purposes the achievement of which is beneficial to the
community.
2. Purpose / beneficiary not specific, court can select one (see p27.8 for text)
3. The settlor of a charitable trust, among others, may maintain a proceeding to
enforce the trust. [very significant change to the law, settlor used to have to
reserved right to enforce if she wanted it]
> most client decisions will depend on whether the purpose meets the
qualifications for a tax deduction
Enforcement:
- by attorney general (traditional method)
- by settlor (if reserved or under MO 456.4-405)
- by someone with an interest in the trust
IRS lists charitable organizations in publication / on internet:
- determination letter will tell you if they are deductible under 170
> also helps to ensure that name is correct
Non-charitable purposes
> too small of a group (to support one student)
> political activities (activities must not be predominately political)
> political campaigns
> private inurement
- difference btw charitable and benevolent purpose, latter does not
qualify
Failing of charitable purposes:
- fund becomes wasteful / impracticable
- purpose has already been achieved / impossible to achieve

Page 41

Page 42

waste /

Cy Pres: deals with modification of charitable trusts where purposes have failed
or are impossible to achieve [in some states, also applied to
impracticability]
- unanticipated circumstances
- [normal grounds for modifying trusts apply to charitable trusts too]
Steps:
1. identify charitable purpose and decide that trust has failed
2. decide if settlor had a general charitable intent
3. come up with scheme that is the closest approximation of
settlors / donors intent
456.4-413. 1. Except as otherwise provided in subsection 2 of this section, if a
particular charitable purpose becomes unlawful, impracticable, impossible to
achieve, or wasteful:
(1) the trust does not fail, in whole or in part;
(2) the trust property does not revert to the settlor or the settlors successors in
interest; and
(3) the court may apply cy pres to modify or terminate the trust by directing that
the trust property be applied or distributed, in whole or in part, in a manner
consistent with the settlors charitable purposes.
2. A provision in the terms of a charitable trust that would result in distribution of
the trust property to a noncharitable beneficiary prevails over the power of the
court under subsection 1 of this section to apply cy pres to modify or terminate
the trust only if, when the provision takes effect:
(1) the trust property is to revert to the settlor and the settlor is still living; or
(2) fewer than twenty-one years have elapsed since the date of the trusts creation.
Alternatives to writing own charitable trust:
- outright devise: make sure to get name of org right
- restricted devise: endowment fund (held on a permanent basis, use of funds
restricted for certain purposes)
> AG has standing to enforce restrictions
> donor has standing if reserved in devise
- not for profit corporation: easier choice
* consider alternative gifts in the will (in case of failure of other gift)

Page 42

Page 43

WILL SUBSTITUTES
Revocable trusts
Life insurance
POD
Joint ownership (JT)

(validated by gift / trust theory)

(3rd party beneficiary doctrine upholds)
(upheld by statute)
(other JT actually has a property right, in joint account
there is a K)

Beneficiary Designation
Retirement Plans

PODs allow you to designate beneficiary for any asset (usually real estate, bank accounts)

When client comes for estate planning advice, need to know

- Complete family info: former spouses, descendants, ect
- how are assets owned: Real property = FS, JTROS, TE
Personal Prop = POD, absolute ownership
- survivorship required for non-probate asset transfer, make sure beneficiaries will be
alive
Revocable Trust at death:
Real Estate held in JTROS, TE:
- collect assets
- file paper that transfers title
- pay bills
- distribute assets
POD certificate:
- one step process
Life insurance:
- send death certificate to holder of policy
Henckle: legal life estate granted
- generally, when real estate is gifted, a quit claim deed is the result
Deed challenged:
- undue influence
- lack of capacity
- fraud
- mistake

Page 43

Page 44

Constructive Trust: ct may use to take property away from someone as remedy
- used when property has been acquired in such a manner that the ct cannot in
good conscience allow the benefiting interest to keep the property
> may be used when it is merely inequitable to allow person to keep land, even
though there is not fraud
Gross: Joint Tenancy
> when a deed is executed, presumption arises that delivery occurred and recording
strengthens that presumption
- the fact that the grantor has retained possession of the deeds / continued to
occupy and control the land will not rebut the presumption when a close
relationship exists btw the grantor and grantee
> self-serving statements of grantor that intent was not there is not enough to
overcome presumption
-- here father deeds son JT in land, later wanted to revoke this, not allowed b/c it was a
valid transfer of property
Reqs for Gift:
- donative intent at time gift is made
- acceptance on part of donee [implied except if specific disclaimer]
- delivery
Secret deed: store deed away to be found later
- has delivery problems
legal life estates / JTs are problematic b/c they transfer control and make property subject to
the creditors of donee
MO non-probate transfers: ch 461
Covers
- bank accounts
- POD arrangement
- life insurance
Does not cover
- most retirement plans
Beneficiary Deed:
461.025. 1. A deed that conveys an interest in real property to a grantee designated by the owner,
that expressly states that the deed is not to take effect until the death of the owner, transfers the
interest provided to the designated grantee beneficiary, effective on death of the owner, if the

Page 44

Page 45
deed is executed and filed of record with the recorder of deeds in the city or county or counties in
which the real property is situated prior to the death of the owner. A beneficiary deed need not be
supported by consideration or be delivered to the grantee beneficiary. A beneficiary deed may be
used to transfer an interest in real property to a trust estate, regardless of such trust's revocability.
2. This section does not preclude other methods of conveyancing that are permitted by law and
that have the effect of postponing enjoyment of an interest in real property until the death of the
owner. This section does not invalidate any deed, otherwise effective by law to convey title to the
interest and estates therein provided, that is not recorded until after the death of the owner.
461.042: survivorship required
> beneficiary of non-probate transfer must survive grantor by 120 hrs (does not go to
their estate if they do not survive)
Revocable: any beneficiary deed under MO statute is revocable (supp 3)
- automatically revoked upon divorce if beneficiary is spouse (supp 3-4)
461.026. Tangible Personal property
1. A deed of gift, bill of sale or other writing intended to transfer an interest in tangible personal
property, that expressly states that the transfer is not to take effect until the death of the owner,
transfers ownership to the designated transferee beneficiary, effective on death of the owner, if
the instrument is in other respects sufficient to transfer the type of property involved and is
executed by the owner and acknowledged before a notary public or other person authorized to
administer oaths. A beneficiary transfer instrument need not be supported by consideration or be
delivered to any transferee beneficiary.
Registration (supp 2)
Disqualification: for fraud, undue influence, willfully and unlawfully causing or participating
with another in causing the death of the owner (461.054)
> for non-probate transfers and life insurance
Multiple Person bank accounts: contractual devices
Joint Bank account:
- open access to either party to 100% of the funds
- bank is not liable if person takes out more than their contribution
- right of survivorship (signature card says so)
> litigation over whether this was really intended, or was this just a setup for
convenience (did they really want a power of attorney?)
right of survivorship is Presumptive only [most states]

Page 45

Page 46
- clear and convincing evidence that depositor did not intend survivorship,
you can overcome the presumption: prove that intent was for
convenience only and not for survivorship purposes
some states [MO included]: apply K doctrine if both parties signed
- K capacity / undue influence / fraud
Payable on Death (POD):
- survivorship only: beneficiary cannot access the funds during lifetime
Power of Attorney account:
- agent is called attorney in fact
- agent can make w/drawls & must apply them for depositors benefit
> no right of survivorship
Fix v Fix:
> cts have equated constructive fraud with the breach or violation of a fiduciary or confidential
relationship
- when a testator devises or bequeaths property to a person in reliance upon the persons
agreement to hold the property in trust or convey it to a third person, the person holds the
property in a constructive trust for the 3rd person
> imposed when named devisee expressly promises or silence implies that he will
perform according to the intention of the testator

ELDER LAW
Planning for incapacity:
Guardian: makes medical decisions
Conservator: makes property decisions
- must post bond (.8% of total)
Trustee: can only manage property under trust
Durable Power of Attorney: has authority specified in document
- customary to have two DPAs:
1. one for health care
2. one for financial / property management

Page 46

Page 47
> often two different agents are appointed
Living Will (nearly worthless): [use DPA instead]
- std form
- only deals with final decision to w/hold or w/draw life support
- often filed and lost (never come to life)
** DPA is better way to do this than a living will (dont do both)
Agency: PA / agency automatically revoked upon the principals death (cant use it to
avoid probate)
> also revoked at common law by principals incapacity
> DPA statutes in every state say that DPA lasts through incapacity
2 types of DPA:
1. Continuing DPA:
- authority created before incapacity, endures through incapacity until (P)
dies
2. Springing DPA:
- authority does not spring into existence until the (P) becomes
incapacitated
> specify procedure for determining incapacity
- who decides
- definition of incapacity

most health care DPAs are Springing

- capable (P) can make own health care decisions
- capacity decisions made by hospital on regular basis

DPA in general:
404.703: definitions for DPA / law applicable (supp 4)
404.705: requirements for creating a DPA (supp 4-5)
404.710: various levels of power for PA, restrictions on what (A)s may do (supp 5-8)
- general
- express
- what PA may never do
* agent often nominated as guardian / conservator b/c sometimes the PA fails (3rd parties refuse
to recognize): agent would be first on the list to be appointed as G / C if such was necessary
General practice:
> give general PA

Page 47

Page 48
> discuss w/ client whether to give express powers
Health Care DPA: (same reqs as regular DPA: part of same statute)
404.805: definitions (supp 9)
404.815: limits on who can serve as agent (supp 9)
404.820: specific authority for w/drawing or w/holding treatment (supp 9-10)
404.830: when health care professionals can refuse to honor decision of attorney in fact (supp 10)
404.872: no discrim by institution against person that refuses to honor decision
Cruzan:
Doctrine of Substituted Judgment: surrogate is not to substitute their own judgment about what
they think is best, they should place themselves in
patients
shoes and try to make decision they would
have
> prior remarks taken into account
Informed Consent: right to consent to treatment before its administered
produces a right to refuse treatment
- if unable to refuse, surrogate could do it for them
clear and convincing evidence of patients desire required to remove life support
- look at expressed wishes, if not clear
- look at substituted judgment, if not clear
- best interests of the patient (majority of states allow you to go this far)
client should state in DPA document if they want that person to be able to make such
decisions
Living Wills
459.010
(3) "Death-prolonging procedure", any medical procedure or intervention which, when applied to
a patient, would serve only to prolong artificially the dying process and where, in the judgment
of the attending physician pursuant to usual and customary medical standards, death will occur
within a short time whether or not such procedure or intervention is utilized. Death-prolonging
procedure shall not include the administration of medication or the performance of medical
procedure deemed necessary to provide comfort, care or to alleviate pain nor the performance of
any procedure to provide nutrition or hydration;
(6) "Terminal condition", an incurable or irreversible condition which, in the opinion of the
attending physician, is such that death will occur within a short time regardless of the application
of medical procedures. [does not apply to persistent vegetative state]

Page 48

Page 49

459.015. Living Wills

1. Any competent person may execute a declaration directing the withholding or withdrawal of
death-prolonging procedures. The declaration made pursuant to sections 459.010 to 459.055
shall be:
(1) In writing;
(2) Signed by the person making the declaration, or by another person in the declarant's presence
and by the declarant's expressed direction;
(3) Dated; and
(4) If not wholly in the declarant's handwriting, signed in the presence of two or more witnesses
at least eighteen years of age neither of whom shall be the person who signed the declaration on
behalf of and at the direction of the person making the declaration.
2. It shall be the responsibility of the declarant to provide for notification to his attending
physician of the existence of the declaration. Upon the request of the patient, the declaration
shall be placed in the declarant's medical records as maintained by his attending physician and
the medical records of any health facility of which he is a patient.
3. The declaration may be in the following form, but it shall not be necessary to use this sample
form. In addition, the declaration may include other specific directions. Should any of the other
specific directions be held to be invalid, such invalidity shall not affect other directions of the
declaration which can be given effect without the invalid declaration, and to this end the
directions in the declaration are severable.
DECLARATION
I have the primary right to make my own decisions concerning treatment that might unduly
prolong the dying process. By this declaration I express to my physician, family and friends my
intent. If I should have a terminal condition it is my desire that my dying not be prolonged by
administration of death-prolonging procedures. If my condition is terminal and I am unable to
participate in decisions regarding my medical treatment, I direct my attending physician to
withhold or withdraw medical procedures that merely prolong the dying process and are not
necessary to my comfort or to alleviate pain. It is not my intent to authorize affirmative or
deliberate acts or omissions to shorten my life rather only to permit the natural process of dying.
Problem: if you have a DPA and a living will, the agent is bound by the living will
Solution: place guidance to the agent in the DPA document

Page 49

Page 50

ADVANCEMENTS
When is lifetime transfer charged against an heirs share?
Hotchpot: add in lifetime transfers
- applies only to distribute what is left at death, if one heir gets more than their share
before the death, they keep it (dont have to pay the extra back into the hotchpot)
$90K

A ($30k advance)
B
- $30k + $90k = $120k hotchpot
- A & B each entitled to $60k, A gets $30k b/c already given $30k, B gets $60k

474.090. Intestate Advance

If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is
treated as an advancement against the latter's share of the estate only if declared in a
contemporaneous writing by the decedent or acknowledged in writing by the heir to be an
advancement. For this purpose, the property advanced is valued as of the time the heir came into
possession or enjoyment of the property, or as of the time of death of the decedent, whichever
occurs first. If the recipient of the property fails to survive the decedent, the property is not taken
into account in computing the intestate share to be received by the recipient's issue, unless the
declaration or acknowledgment provides otherwise.
* not an advancement w/o a writing
474.425. Wills and Advancements
Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to
that person in whole or in part only if the will provides for deduction of the lifetime gift, or the
testator declares in a contemporaneous writing that the gift is to be deducted from the devise or
in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction.
For purpose of partial satisfaction, property given during the testator's lifetime is valued as of the
time the devisee came into possession or enjoyment of the property or as of the time of death of
the testator, whichever occurs first.

Page 50

Page 51

Slayer Statute:
- civil standard used to decide if person was culpable for death and therefore ineligible to receive
property
> crim conviction is admissible, but not necessary
MO does not have a comprehensive slayer statute

461.054. [just for life insurance / non-probate transfers]

2. A beneficiary who willfully and unlawfully causes or participates with another in causing the
death of the owner, or the insured individual under a life insurance policy or certificate, is
disqualified from receiving any benefit of a nonprobate transfer from the owner or any proceeds
payable as a result of the death of an individual insured under a life insurance policy or
certificate. The beneficiary designation shall be given effect as if the disqualified beneficiary had
disclaimed it. The fact that a beneficiary willfully and unlawfully caused or participated with
another in causing the death of the owner may be established by a criminal conviction or guilty
plea, after the right of direct appeal has been exhausted, or determined in a proceeding pursuant
to subsection 3 of this section using a preponderance of the evidence standard.
Estate of Mahoney:
constructive trust used to take estate away from wife who had killed husband (ct found
that she held estate in constructive trust for the parents of the man)
FAMILY PROPERTY
Marital Property:
Community Property: (9 states)
Theory: marriage is a partnership & all property acquired by reason of the
marriage shall be owned equally by the couple (earnings, things
bought
during marriage w/ marital property)
- Separate Property: Property acquired by other means
- property registered in just one of their names,
- property brought into marriage & property that can be traced
- gifts from outside / inheritance
> Presumption: if ownership is not known or cared about and its been
commingled its community property

Page 51

Page 52
Effect: starting point in divorce = community property is split right down the
middle, any property award comes out
separate property
At death: surviving spouse automatically owns 50% of community
property, decedent can only dispose of 50% by will
- separate property can be disposed of entirely

of

Dower / Curtesy: (D for wife, C for husband)

- granted spouse an interest in the decedents real estate (later called Dower for
both spouses)
- fell into disfavor b/c of title problems (tough to make sure titles were cleared)
Common Law Elective Share:
- spouse is entitled to elect to receive as a minimum a % of the probate estate
(often 1/3 or 1/2 of estate) [as opposed to other methods provided by
will]

enlarge it

- in Illinois: also entitled to 1/3 of lifetime transfers that spouse can prove is
transferred in fraud of the spouses marital share [look at probate estate,
by fraudulent transfers]

Augmented Estate: also provides elective share

2 versions:
1969: probate estate + certain non-probate transfers = augmented estate,
spouse takes % of augmented estate
- included transfers: those that are in effect will substitutes
> revocable trusts / joint accounts
> POD arrangements
* includes transfers to the spouse in calculation
Illinois v UPC:
- fraud must be proved in IL, no fraud necessary in UPC aug estate
- in IL, spouse takes all non-probate transfers to her, plus can take
% of the probate estate
Steps:
- compute probate estate
- add non probate to others (some Js only if fraud [MO])
- add non probate to spouse
> 1/3 of all of this as election
Conflict of laws:
1) character of property is determined by law of domicile at time of acquisition
2) rights at death determined by domicile at death

Page 52

Page 53
Implications: move from common law state to community property state may leave a
spouse with no community property in a state with no elective share
provision (in the inverse, a surviving spouse could get
community property
and also take 1/3 of the rest)
Various Rights Against Creditors:
Homestead Laws: exempted certain assets from creditors
- assumed spousal protection feature as well
> gives spouse automatic right to occupy homestead
Exempt Property:
- various tangible personal property exempt from creditors by statute
Family Allowance:
- statutory allowance for family members
474.290 Homestead Allowance:
- Allowance to surviving spouse or unmarried minor children of amount not exceeding 50% of
remaining estate or $15k (after exempt property and family allowance)
> offset against share taken by will or intestate, but not diminished if greater
474.250 Exempt Property: (controls over will provision)
The surviving spouse, or unmarried minor children of a decedent are entitled absolutely to the
following property of the estate without regard to its value: The family bible and other books,
one automobile or other passenger motor vehicle, including a pickup truck, with its means of
propulsion, all wearing apparel of the family, all household electrical appliances, all household
musical and other amusement instruments and all household and kitchen furniture, appliances,
utensils and implements. Such property shall belong to the surviving spouse, if any, otherwise to
the unmarried minor children in equal shares.
474.260 Family Allowance:
1. In addition to the right to homestead allowance and exempt property, the decedent's surviving
spouse and minor children whom the decedent was obligated to support and the children who
were in fact being supported by the decedent are entitled to a reasonable allowance in money out
of the estate for their maintenance during the period of administration, which allowance may not
continue for longer than one year. The allowance may be paid as a lump sum or in periodic
installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse
and minor or dependent children; otherwise to the children, or person having their care and
custody, but if a minor or dependent child is not living with the surviving spouse, the allowance
may be made partially to the child or the child's guardian or other person having the child's care
and custody, and partially to the spouse, as their needs may appear. In setting the amount of the
support allowance for any persons entitled to such support, the court may consider the previous

Page 53

Page 54
standard of living of the applicant, the condition of the estate, the income and other assets
available to the applicant and the applicant's expenses. The support allowance is not chargeable
against any benefit or share passing to the surviving spouse or children by the will of the
decedent, unless otherwise provided, by intestate succession or by way of elective share. The
death of any person entitled to a family allowance terminates the right to allowances not yet paid.
2. The court may authorize the recipient of the support allowance to receive any property of the
estate in lieu of all or part of the money allowance authorized by this section, and in any case
where the court makes an allowance in money, the recipient of the support allowance may select
and receive any property of the estate, of a value not exceeding the allowance in money, which
shall be in lieu of and which value shall be credited against the allowance. The right of selection
provided for in this section is subject to the provisions of section 473.620, RSMo. The allowance
authorized by this section is exempt from all claims.
3. Where real estate is selected pursuant to this section, the provisions of subsections 2, 3, 4, 5
and 6 of section 474.290 shall be followed.

PRE-MARITAL AGREEMENTS
- enforceable in all states in event of divorce and death
Fiduciary relationship Ks: relationship of trust
- must be consideration (adequacy of consideration considered)
- deal must be fair and there must be full disclosure (not just conscionable like reg Ks)
> spouse needs to be aware of full assets of other spouse
> separate council is imperative

452.325. At divorce:
1. To promote the amicable settlement of disputes between the parties to a marriage attendant
upon their separation or the dissolution of their marriage, the parties may enter into a written
separation agreement containing provisions for the maintenance of either of them, the disposition
of any property owned by either of them, and the custody, support and visitation of their
children.
2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation
agreement, except terms providing for the custody, support, and visitation of children, are
binding upon the court unless it finds, after considering the economic circumstances of the
parties and any other relevant evidence produced by the parties, on their own motion or on
request of the court, that the separation agreement is unconscionable.

Page 54

Page 55
3. If the court finds the separation agreement unconscionable, the court may request the parties to
submit a revised separation agreement or the court may make orders for the disposition of
property, support, and maintenance in accordance with the provisions of sections 452.330,
452.335 and 452.340.
4. If the court finds that the separation agreement is not unconscionable as to support,
maintenance, and property:
(1) Unless the separation agreement provides to the contrary, its terms shall be set forth in the
decree of dissolution or legal separation and the parties shall be ordered to perform them; or
(2) If the separation agreement provides that its terms shall not be set forth in the decree, only
those terms concerning child support, custody and visitation shall be set forth in the decree, and
the decree shall state that the court has found the remaining terms not unconscionable.
5. Terms of the agreement set forth in the decree are enforceable by all remedies available for the
enforcement of a judgment, and the court may punish any party who willfully violates its decree
to the same extent as is provided by law for contempt of the court in any other suit or proceeding
cognizable by the court.
6. Except for terms concerning the support, custody or visitation of children, the decree may
expressly preclude or limit modification of terms set forth in the decree if the separation
agreement so provides.

474.120. At death:
The rights of inheritance or any other statutory rights of a surviving spouse of a decedent who
dies intestate shall be deemed to have been waived if prior to, or after, the marriage such
intended spouse or spouse by a written contract did agree to waive such rights, after full
disclosure of the nature and extent thereof, including the nature and extent of all property
interests of the parties, and if the thing or promise given to the waiving party is a fair
consideration under all the circumstances.

474.220. Waiver of right of election:

The right of election of a surviving spouse hereinbefore given may be waived before or after
marriage by a written contract, agreement or waiver signed by the party waiving the right of
election, after full disclosure of the nature and extent of the right, if the thing or the promise
given to the waiving party is a fair consideration under all the circumstances. This written
contract, agreement or waiver may be filed in the same manner as hereinbefore provided for the
filing of an election.

Page 55

Page 56
MISSOURI ELECTIVE SHARE
Probate Estate
NP transfers to spouse
NP transfers to others (if fraud can be proved)
Spousal Election:
474.160.
1. When a married person dies testate as to any part of his estate, a right of election is given to
the surviving spouse solely under the limitations and conditions herein stated:
(1) The surviving spouse, upon election to take against the will, shall receive in addition to
exempt property and the allowance under section 474.260 one-half of the estate, subject to the
payment of claims, if there are no lineal descendants of the testator; or, if there are lineal
descendants of the testator, the surviving spouse shall receive one-third of the estate subject to
the payment of claims;
(2) When a surviving spouse elects to take against the will he shall be deemed to take by descent,
as a modified share, such part of the estate as comes to him under the provisions of this section,
and shall take nothing under the will;
(3) Whenever there is an effective election to take against a will which provides for benefits to
accrue upon the death of the surviving spouse, the election has the same effect as to the benefits
as if the surviving spouse had predeceased the testator, unless the will otherwise provides.
2. The rights of the surviving spouse under this section are not given in lieu of the homestead
allowance under section 474.290, but any homestead allowance made to the surviving spouse
shall be offset against the share taken under this section.
Net Probate Estate: Valuation of Estate = 464.163 (supp 11-12)
- bills
- exempt property
- family allowance
- gifts made in fraud
- ect see statute
(5) if spouse can prove income is from other source, not counted in augmented estate
Gifts in Fraud of the Spouses Share: 474.150 (supp 12)
> incentive to transfer to children b/c spouse must prove fraud in order to get election %
from those transfers

Page 56

Page 57

474.170: Notice must be given of right to elect

474.180: Statute of Limitations for filing elections
> ten days after the expiration of the time
limit for contesting the will of decedent
474.190: Form for filing elections

(supp 13)
(supp 13)

(supp 13)

474.200. The right of election of the surviving spouse is personal to him. It is not transferable
and cannot be exercised after his death; but if the surviving spouse is disabled or a minor, his
guardian ad litem or conservator may elect for him with the approval of the court or, on
application of an interested person, the court may order his guardian ad litem or conservator to
elect for him.
474.220: Waiver of right to Elect (see page 56)
- may waive all rights: homestead / election / exempt prop, ect
- must be fair
* Char of marital property is determined by the law of the domicile at the time of acquisition
- community property taken into account: 464.163(5)
McDonald:
- fraudulent conveyance: one executed with the intent and purpose to defeat marital rights
> to be determined by facts / circumstances at time of transfer
> need a transfer in order to find a fraudulent conveyance, dispositive changes to
a trust do not count for this
* burden of proof on surviving spouse (statute changed for real estate)

the

Equitable Estoppel: where acts of one person induced another to refrain from acting or to
act in certain manner, that person is estopped from taking any
position inconsistent with the inducement that would lead to
prejudice of the other person

OMITTED SPOUSE AND CHILDREN

** No omitted child statute for trusts
If will made during marriage: remedy is elective share
If will made prior to the marriage: rule of construction
> maker of premarital rule would have provided spouse with intestate share if they had
gotten around to revising the will
- gives omitted spouse the intestate share

Page 57

Page 58
474.235. Omitted Spouse
1. If a testator fails to provide by will for his surviving spouse who married the testator after the
execution of the will, the omitted spouse shall receive the same share of the estate he would have
received if the decedent left no will, unless it appears from the will that the omission was
intentional or that 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 statements of the testator, the
amount of the transfer or other evidence.
2. In satisfying a share provided by this section, the devises made by the will abate as provided in
section 473.620, RSMo.
* ways to get around this: explicitly mention marriage or redo will after marriage
Estate of Shannon:
- disinheritance clause cutting out all other persons and relatives was not sufficient to
cut omitted spouse out of the deal
exclusionary clauses that fail to indicate that the testator contemplated the possibility of
a future marriage are insufficient to avoid the statutory presumption
even exclusionary clause including whether related by marriage or not was not
sufficient to disclose an explicit intent of the testator to omit another person
married
after will execution
basically should name the person or at least mention future marriage if you intend to
cut them out
Omitted Children:
* no elective share provision for children
474.240. 1. If a testator fails to provide in his will for any of his children born or adopted after
the execution of his will, the omitted child receives a share in the estate equal in value to that
which he would have received if the testator had died intestate, unless:
(1) It appears from the will that the omission was intentional;
(2) When the will was executed the testator had one or more children [preborn] and devised
substantially all his estate to the other parent of the omitted child; or
(3) The testator provided for the child by transfer outside the will and the intent that the transfer
be in lieu of a testamentary provision is shown by statements of the testator, the amount of the
transfer or other evidence.

Page 58

Page 59
2. If at the time of execution of the will the testator fails to provide in his will for a living child
solely because he believes the child to be dead, the child receives a share in the estate equal in
value to that which he would have received if the testator had died intestate.
3. An illegitimate child is not a child of a male testator, for the purposes of this section, unless
the testator, during his lifetime or in the will, recognized that the child was his.
4. In satisfying a share provided in this section, the devises made by the will abate as provided in
section 473.620, RSMo.
* generally, only an after-born child can take an intestate share (born after will) [MO]
* some states allow pre-born and descendants to take intestate share
Issues:
- child born out of wedlock: if will says children, use IS statute to find out who is included, as
long as you can prove heir-ship
- will is silent and testator has after-born:
1. establish paternity (maternity not really an issue)
2. bring omitted child claim
Order in Which Assets Appropriated:
473.620. 1. When it is necessary that there be an abatement of the shares of the distributees, they
shall, subject to the provisions of the will, abate, without any preference or priority as between
real and personal property, in the following order:
(1) Property not disposed of by the will;
(2) Residuary devises;
(3) General legacies;
(4) Specific devises. A general legacy charged on any specific property or fund for the purposes
of this section is deemed property specifically devised to the extent of the value of the thing on
which it is charged. Upon the failure or insufficiency of the thing on which it is charged, it is
deemed a general legacy to the extent of such failure or insufficiency. (ex 5K from 10K account)
2. Subject to the provisions of the will, and to section 473.623, devises of the same class shall
abate proportionately.
3. If the provisions of the will or the testamentary plan or the express or implied purpose of the
devise would be defeated by the order of appropriation and application prescribed by subsection
1 hereof, the property of the testator shall be apportioned in the manner found necessary to give
effect to the intention of the testator.

Page 59

Page 60

Implications of this section:

- use class gifts to avoid omitting children, others
Azcunce:
- republishing of will by codicil can cause an after-born child (of original will) to become
a pre-born child
- if not mentioned in the will, privity will bar action
*Under Revocable Trust:
- children take nothing unless mentioned in the trust document
POWERS OF APPOINTMENT
Powers of Trustee:
- has power to decide, but also a duty not to commit an abuse of discretion
POA: power with regard to trust, held by someone other than the trustee
- no fiduciary duty
- usually deals with dispositive provisions
> someone other than trustee can change dispositive provision
> often that person is also a beneficiary of the trust
Donor: give of power
Donee: power holder
Testamentary POA: power to make change effective at death of donee (in their will)
Intervivos POA: power to change during lifetime
General POA: donee can change dispositive provisions in their own favor
Special POA: donee can change dispositive terms, but not in their own favor
> generally, the power is limited to distribution among a class
* general intervivos power: called a power of withdrawal b/c donee can take the $ for himself
during his lifetime
Benefit: allows someone else to account for changed circumstances
Exercised: if donee signs will exercising powers or signs document exercising power
Objects: persons, entities in whos favor the power could be exercised
> in non-general, there will be a limited class
Appointee: if the power is exercised, you have appointees (those to whom the donee
chooses to distribute)

Page 60

Page 61
Takers in Default: persons named in default to receive the trust property if the power is
not exercised
Drafting:
Can residuary clause alone in donees (general testamentary donee) will exercise the
POA given by donor, or must you be more specific?
> in some states, a residuary is enough to exercise general power
> if there is a class to which the power is limited and it doesnt include the donee, the
POA is a special POA
* if a general POA is given, donee can take property for himself and also do anything else
w/ the property
Drafting Special POAs:
1. if you want a special power of appointment, you must specify the class (otherwise you
have a general POA)
2. if language says you can appoint, it must be outright
3. draft in detail b/c of concern that language will be literally construed
Beals:
Presumption: general residuary clause exercises a general POA
- even if partial release of the power [total release: pass property to takers in def]
> In interpreting will of donee to determine whether a POA was exercised, apply the law
of the J whose law governs the admin of the trust
set up in document granting POA that exercise must be more specific than a residuary
clause, you dont have to worry so much about where parties will move
if you want to be safe in exercising a general POA, be specific
MO rule of construction:
456.023. A general residuary clause in a will, or a will making general disposition of all of the
testator's property, does not exercise a power of appointment granted in an instrument creating or
amending a trust unless specific reference is made to the power or there is some other indication
of intention to include the property subject to the power.
456.1-107. The meaning and effect of the terms of a trust are determined by:
(1) the law of the jurisdiction designated in the terms unless the designation of that jurisdiction's
law is contrary to a strong public policy of the jurisdiction having the most significant
relationship to the matter at issue; or

Page 61

Page 62
(2) in the absence of a controlling designation in the terms of the trust, the law of the jurisdiction
having the most significant relationship to the matter at issue.
Power Not Exercised / Exercise Fails:
Takers in Default: specify those who will take if power is not exercised
> if no takers in default are created and powers are not exercised
- if class is limited enough, goes to class
- if class is too broad, property subject to the power goes back to the donor
General:
If not exercised = distributed through Donors estate (if no takers in def)
If exercise fails = dist through power holders estate if Captured
Captured: donee intended to assume control over property
(blending clause, residuary that is presumed to exercise,
residuary revealing intent to exercise,
appointment in trust)
Specific:
If not exercised / exercise fails: dist thru Donors estate (if no takers in
default)
INTERPRETATION
Extrinsic Evidence: from outside the document
> not all evidence can be considered
Ambiguity or Uncertainty:
Ambiguity: can be interpreted in more than one way
Uncertainty: cannot be interpreted
Wills:
Plain Meaning rule: what document may mean to the average person (judge or lawyer in
practice)
Surrounding Circumstances: evidence of this is always admissible
- family circumstances (who are children, who included in class, ect)
- uncontroverted background facts

with

Patent Ambiguity (ambiguous on its face): extrinsic evidence not admissible

Rules of Thumb:
> in resolving ambiguity, ct can strike words but cannot add words (if percentages
dont add up, ct can strike percentages)
> later pages in document control over earlier pages b/c it is assumed that testator
wrote them more recently (order of pagination)
MO: Schupback extrinsic evidence of objective, operative facts concerning
testators life may be introduced (condition of property, association
persons, motives, natural objects of bounty)
Latent Ambiguity: (ambiguous as applied to situation) only learn of problem with
examination of extrinsic evidence

Page 62

Page 63
- can use extrinsic evidence to resolve [MO]
- testators declaration of intent is admissible to explain ambiguity
Personal Usage Exception: if person habitually referred to wife as mom, then devise to
mom can be given to wife and not mother of
decedent
- extrinsic evidence used to determine if personal usage of term exists
Rules of Construction: may help of nothing else does
> divorce rule
> other statutory rules (omitted persons, ect)
Trusts (and other non-probate instruments):
Revocable Trust:
Plain Meaning Rule
Law of Contracts
- Parol Evidence Rule
- basically all relevant evidence admissible under gen rules of evidence / Ks
MO: statutory rule of construction
Divorce rule: when testator gets divorced, spouse is out
Parol Evidence Rule: cant interpret A to mean B even with extrinsic evidence
Mistake of Fact: (ex: wrong person listed as devisee)
trust can be reformed on account of mistake (will cannot)
Schupback:
- estate tax exemption for 1st $325k
> should have given the 1st $325k to a trust and given rest to spouse (b/c spouse not taxed
either); then at spouses death, another $325k would be exempt, and less would be taxed
CLASS GIFTS
Single Generation class gifts: to children or siblings
Multiple Generation class gifts: designations to descendants or heirs
Class Closing:
Natural closing: class closes when class members can no longer be created
- law accommodates posthumous children
Examples: to my wife and then to my children (closes at testators death + 9mo)
to A and then to As children (closes naturally at As death + 9mo)
Rule of Convenience: closes when one of the class members can demand payment
> class member does not have to actually demand, just has to be able to
Examples: to my grandchildren

Page 63

Page 64
- class will not close naturally until all children die, but will close by
Convenience b/c any grandchild alive at death of testator can
claim share
Immediate Gifts: (8k to Mikes children) class closes at donors death if there is a child but
continues until Mikes death if not; (3k to each of my g-children) b/c amount changes w/
inclusion of class members, closes at death whether or not takers at death ( only for wills)
Delayed Gifts: life of someone, age to be reached, or devise to someone elses children
- if gift is delayed, you should think about putting devise in a trust
Halfbloods included for class gifts in accordance with IS (supp 14)
MAGIC LANGUAGE
Terms to avoid:
1) avoid disposition in favor of a named person and a class (to Don and his children)
Possible Interpretations:
A. tenancy in common / children as substitution if Don is dead
B. life estate w/ remainder to children, ect
A or his children: likely A takes if alive, children if not (spell it out instead)
2) gifts to issue (supp 14 for MO specific)
- does testator mean children? Or descendants
> avoid this term and just use the more specific term of children / descendants
3) to Milton, but if Milton dies w/o issue, then to Herman
- if M is survived by child: most would say that child would take
Problem: old case law says die w/o issue means you ask if Ms issue die out now or
any time in the future, Herman takes (if child A later dies w/o
descendant so
that Miltons line of issue runs out, Herman will take)
4) gifts to heirs (supp 14 for MO specific)
Doctrines:
Rule in Shellys Case: (not MO, abolished by 474.470) deals with dispositions to
someone elses heirs
> disposition to A for lif and the to As heirs
remainder in life tenants heirs in converted to remainder in life tenant,
produces a fee simple absolute (by doctrine of merger)
Doctrine of Worthier Title: deals w/ dispositions to decedents heirs
> to my heirs: converted into a reversion (from a remainder) in the
settlor / testator (can keep settlor from qualifying for govt
programs)
5) gifts to child or grandchild
- adopted child: follow IS statute, not included for old family
- Minnery: adult adoption, one can adopt an adult and they will take as a child

Page 64

Page 65
UPON DIVORCE
Intestate: divorcing spouse is out
Other forms: rules of construction
Wills:
474.420.
If after making a will the testator is divorced, all provisions in the will in favor of the testator's
spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the
divorced spouse had died at the time of the divorce. With this exception, no written will, nor any
part thereof, can be revoked by any change in the circumstances or condition of the testator.
Non-probate transfer:
461.051.
1. If, after an owner makes a beneficiary designation, the owner's marriage is dissolved or
annulled, any provision of the beneficiary designation in favor of the owner's former spouse or a
relative of the owner's former spouse is revoked on the date the marriage is dissolved or
annulled, whether or not the beneficiary designation refers to marital status. The beneficiary
designation shall be given effect as if the former spouse or relative of the former spouse had
disclaimed the revoked provision.
2. Subsection 1 of this section does not apply to a provision of a beneficiary designation that has
been made irrevocable, or revocable only with the spouse's consent, or that is made after the
marriage was dissolved, or that expressly states that marriage dissolution shall not affect the
designation of a spouse or relative of a spouse as beneficiary.
3. Any provision of a beneficiary designation revoked solely by this section is revived by the
owner's remarriage to the former spouse or by a nullification of the marriage dissolution or
annulment.
4. In this section, "a relative of the owner's former spouse" means an individual who is related to
the owner's former spouse by blood, adoption or affinity and who, after the divorce or
annulment, is not related to the owner by blood, adoption or affinity.
Trusts:
456.1-112.
1. If a settlor's marriage is dissolved or annulled, any beneficial terms of a trust in favor of the
settlor's former spouse or any fiduciary appointment of the settlor's former spouse is revoked on
the date the marriage is dissolved or annulled, whether or not the terms of the trust refer to
marital status. The terms of the trust shall be given effect as if the former spouse had died
immediately before the date the dissolution or annulment became final. This subsection shall also

Page 65

Page 66
apply to any beneficial interest or fiduciary appointment in favor of a relative of the settlor's
former spouse as if such relative were the former spouse.
2. Subsection 1 of this section does not apply to the terms of a trust that provide any beneficial
interest or fiduciary appointment for a former spouse or a relative of a former spouse that was
created after the marriage was dissolved or annulled, or that expressly states that marriage
dissolution or annulment shall not affect the designation of a former spouse or relative of a
former spouse as a beneficiary or a fiduciary of the trust.
3. A court may order or the settlor and the spouse may agree before, during, or after the marriage
in a binding contract or settlement agreement that subsection 1 of this section does not apply to a
beneficial interest or fiduciary appointment.
4. Any terms of a trust revoked solely by this section are revived by the settlor's remarriage to the
former spouse or by a nullification of the marriage dissolution or annulment.
5. In this section, "a relative of the settlor's former spouse" means an individual who is related to
the settlor's former spouse by blood, adoption or affinity and who, after the divorce or
annulment, is not related to the settlor by blood, adoption or affinity.
PREDECEASING BENEFICIARY
Will: anti lapse statute sometimes applies
POD: anti lapse statute sometimes applies
Inter Vivos Trust: ?
Testamentary Trust: covered under will anti lapse
Wills:
Different applications for devises to:
Named individuals
Classes (single gen, multi-generation)
Devisee who predeceases testator is out.
> does devise then fail? Or is it given to a substitute?
#1: Does the will say what to do?
- if will directs it fails, it fails
- if will gives to substitute, do that
For named devisee:
#2: Is dead devisee a relative of the testator?
- devises to relatives protected by anti-lapse statute [MO]
adoptees included
spouses excluded (not a relative here)
#3: Did dead devisee have descendants who survived testator?
- by representation to descendants

Page 66

Page 67

For Class devisee:

#2: Is dead class devisee a relative of the testator?
#3: Did dead devisee have descendants who survived testator?
- if so, they take by representation
- if not, surviving class members take all
474.460. Anti-Lapse Statute
When any estate is devised to any child, grandchild, or other relative of the testator, and the
devisee dies before the testator, or is treated as if he predeceased the testator, leaving lineal
descendants who survive the testator by one hundred twenty hours, the descendants shall take
the estate, real or personal, as the devisee would have done if he had survived the testator by one
hundred twenty hours.
- spouse is not relative here, class gifts count (caselaw)
if will doesnt name a substitute and the anti-lapse statute doesnt apply, then look to failure of
devise rules
- in the case of a class devise, look to the class gift rule first and then to the devise failure
rules (first try anti-lapse statute, then class gift rule, then failure rule)
Contrary Intention:
Single named gifts:
- A if A survives me: some cts say that this negates anti lapse statutes, some dont
- better: A if A survives me, but if A does not survive me, this devise shall fail and pass
as part of residue / other
Class gifts:
- if they want descendants to take: to descendants by representation [descendants
always determined by date of distribution]
- to surviving children: surviving can be unclear as to whether descendant will be
excluded
Failure of Devise:
If devise fails:
If specific devise fails, it goes into the residue
If general devise fails, same
If residuary devise fails, property will pass by IS
- residuary devise to A & B and A predeceases (and anti-lapse doesnt apply)
> CL: treated as two different gifts = passes by IS

Page 67

Page 68
474.465. Failure of Devise
1. Except as provided in section 474.460, if a devise, other than a residuary devise, fails for any
reason, it becomes a part of the residue.
2. Except as provided in section 474.460, if the residue is devised to two or more persons and
the share of one of the residuary devisees fails for any reason, his share passes to the other
residuary devisee, or to other residuary devisees in proportion to their interest in the residue.

Non-Probate Transfers Anti-lapse:

- does not apply to revocable trusts
461.045.
1. Whenever a person designated as beneficiary of a nonprobate transfer is a lineal descendant of
the owner, and the beneficiary is deceased at the time the beneficiary designation is made or does
not survive the owner, or is treated as not surviving the owner, the nonsurviving beneficiary's
share shall belong to that beneficiary's lineal descendants per stirpes who survive the owner, to
take in place of and in substitution for the nonsurviving beneficiary, the same as the beneficiary
would have taken if the beneficiary had survived. This subsection shall not apply to a
beneficiary designation with the notation "no LDPS" after a beneficiary's name or other words
negating an intention to direct the transfer to the lineal descendant substitutes of a nonsurviving
beneficiary.
2. A beneficiary designation may provide that the share of any beneficiary not related to the
owner as provided in subsection 1 of this section, and who does not survive the owner, shall
belong to that beneficiary's lineal descendants per stirpes who survive the owner, by including
after the name of the beneficiary the words "and lineal descendants per stirpes" or the
abbreviation "LDPS".
3. Lineal descendants, taking as substitutes for a beneficiary of a nonprobate transfer, if they are
of the same degree of kinship to the nonsurviving beneficiary, share equally, but if they are of
unequal degree, then those of more remote degree take the share of their parent by
representation.

Page 68

Page 69
4. Whenever a nonprobate transfer is to be made to a beneficiary's lineal descendants per stirpes,
the property shall belong to such lineal descendants of the beneficiary who survive the owner,
and in such proportions, as would result if the survivors were inheriting personal property of the
beneficiary under the laws of Missouri and the beneficiary had died at the time of the owner's
death, intestate, unmarried, domiciled in Missouri and possessed of such property.
5. Whenever a beneficiary of a nonprobate transfer does not survive the owner and the
beneficiary is a person for whom the beneficiary's surviving lineal descendants take as
substitutes under subsection 1 or 2 of this section, if there are no lineal descendants of the
beneficiary who survive the owner, the beneficiary's share shall belong to the surviving
beneficiaries, or to the owner's estate, as would be the case if transfer to the beneficiary's lineal
descendants were not required to be considered.

anti-lapse does not apply if beneficiary survives the testator but predeceases the distribution
SURVIVORSHIP CONDITIONS
What happens depends on type of interest:
Contingent: prior condition that must be met in order for beneficiary to receive
distribution
Vested: no prior condition necessary
* life estate: life estate with remainder to beneficiary (if
remainderman survives life beneficiary the
distribution
goes to their estate)
* revocable trust: as long as person survives the creation of the trust (does
not need to survive settlor), the $ will go to their
estate
2 words that carry requirement of survivorship (implied condition)
1. descendants
(to A for life, then to As descendants)
> means that only those descendants of A that survive A will share
in the distribution
instead say: to A for life, then to As then living heirs / descendants by
right of representation
2. heirs
(to A for life, then to As heirs)
> must wait until A dies to determine their heirs
Life estate to A and then
- to As children: children do not have to survive to take
- to As brothers/sisters: they do not have to survive
- to As heirs: heirs not determined until As death (must survive)

Page 69

Page 70
- to As descendants: descendants must survive to take
Point: you should include in estate planning document
1. that they must survive to take distribution (when and whom they must survive)
2. what happens if they do not
* practical considerations
- include express conditions of survivorship
- include who they must survive
- say what happens if they dont survive
CHANGES IN PROPERTY
Types of Devises:
Specific Devises: identifiable at the time will was made
General Devises: usually an amount of money to be paid generally out of estate assets
Demonstrative Devise: cash amount to be paid from a specific fund
Residue: everything left (all remaining probate assets)
Missing Property:
- an issue for specific devises and demonstrative devises
Identity Theory: if the property is gone, the devise fails
- Exceptions = cash substitutes
Ademption by Extinction: for specific devises only*
- gift fails if not found at death of testator / settlor (identity theory)
* for demonstrative devises, $ found at specific fund will be paid to devisee, rest
of amount devised will be paid out of other estate assets
Exceptions to Ademption:
- corporate security name changes: devisee gets new security (474.463, supp 14)
- stock split / shares as dividend: devisee gets new amount of security
** easier just to not specifically devise stock
- conservator sells property: 2 approaches
a. traces proceeds and if they are still around give to devisee
b. convert to cash devise
- agent under DPA sells property: UPC treats it like sale by conservator
> some states say its an exception to ademption, some dont [MO inconclusive]
- partial sale: devisee gets what is left

Page 70

Page 71
- land K / installment K: b/c title technically in seller, devisee takes title subject to K
(buyer makes remaining payments to devisee) - cant get $ in proceeds account
- non-testamentary act: testator gets new car (substituted if description fits make
descriptions broad)
Exoneration: personal representative must pay off debt on specific devise
Most states (non-exoneration): testator intended devisee to take specific devise subject to the
mortgage
MO rule:
2. When any property is specifically devised and at the time of the testator's death is
subject to a mortgage, pledge, or other lien created prior to the execution of the will or
created by a mortgage, pledge, or other lien executed after the execution of the will as a
renewal, or extension, or refinancing of the debt created prior to the execution of the will,
the devisee shall take the property so devised subject to the charge or encumbrance unless
the will provides expressly or by necessary implication that such mortgage be otherwise
paid, but if the mortgage, pledge or other lien was created after the execution of the will
the devisee shall take the property exonerated from the encumbrance unless it appears
from the terms of the loan agreement or from the circumstances surrounding the loan
transaction that the testator intended that the encumbrance should be paid out of the
encumbered property rather than from his general estate ( similar for bond to convey: 474.440, supp 14)
Estate of Swoyer:
- specific devise of farm to some children / residue to others
- guardian sold farm
> remaining proceeds from sale of farm given to specific devisees
FIDUCIARY ADMINISTRATION
Fiduciary: includes trustee, POA, etc
Duty of Loyalty: must place interests of beneficiaries ahead of own/of others- otherwise voidable
456.8-802. 1. A trustee shall administer the trust solely in the interests of the beneficiaries. [as
found in trust document, not as beneficiaries see them]
2. Subject to the rights of persons dealing with or assisting the trustee as provided in section
456.10-1012, a sale, encumbrance, or other transaction involving the investment or management
of trust property entered into by the trustee for the trustee's own personal account or which is
otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable
by a beneficiary affected by the transaction unless:
(1) the transaction was authorized by the terms of the trust;
(2) the transaction was approved by the court;

Page 71

Page 72
(3) the beneficiary did not commence a judicial proceeding within the time allowed by section
456.10-1005;
(4) the beneficiary consented to the trustee's conduct, ratified the transaction, or released the
trustee in compliance with section 456.10- 1009; or
(5) the transaction involves a contract entered into or claim acquired by the trustee before the
person became or contemplated becoming trustee.
3. A sale, encumbrance, or other transaction involving the investment or management of trust
property is presumed to be affected by a conflict between personal and fiduciary interests if it is
entered into by the trustee with:
(1) the trustee's spouse;
(2) the trustee's descendants, siblings, parents, or their spouses;
(3) an agent or attorney of the trustee; or
(4) a corporation or other person or enterprise in which the trustee, or a person that owns a
significant interest in the trustee, has an interest that might affect the trustee's best judgment.
Absolute duty:
Trustee has duty to not self deal: no purchasing of trust property, borrowing money from trust,
ect (doesnt matter if deal was fair to the beneficiary)
> beneficiary can always void this, unless statute of limitations has run
Defenses:
- settlor can authorize violations of the duty of loyalty
- beneficiary consented to trustees conduct (pre or post transaction)
- statute of limitations (1 year after report or 5 years after trust termination)
Duty of Prudence: standard of care similar to negligence
456.8-804. A trustee shall administer the trust as a prudent person would, by considering the
purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying
this standard, the trustee shall exercise reasonable care, skill, and caution.
Remedies:
456.10-1001. 1. A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of
trust.
2. To remedy a breach of trust that has occurred or may occur, the court may:
(1) compel the trustee to perform the trustee's duties;
(2) enjoin the trustee from committing a breach of trust;

Page 72

Page 73
(3) compel the trustee to redress a breach of trust by paying money, restoring property, or other
means;
(4) order a trustee to account;
(5) appoint a special fiduciary to take possession of the trust property and administer the trust;
(6) suspend the trustee;
(7) remove the trustee as provided in section 456.7-706;
(8) reduce or deny compensation to the trustee;
(9) subject to section 456.10-1012 (good faith purchaser), void an act of the trustee, impose a lien
or a constructive trust on trust property, or trace trust property wrongfully disposed of and
recover the property or its proceeds; or
(10) order any other appropriate relief.
Damages:
456.10-1002. 1. A trustee who commits a breach of trust is liable to the beneficiaries affected for
the greater of:
(1) the amount required to restore the value of the trust property and trust distributions to what
they would have been had the breach not occurred; or
(2) the profit the trustee made by reason of the breach.

Rothco:
BFP: need to pay fair market value and,
have no notice of defect (in title, ownership)
Q for UTC: was the transaction painted with conflict of interest
> joint and several liability against co-trustees
456.7-703: duty to watch co-trustees
UTC:
- creates a presumption that certain types of transactions are violation of duty of loyalty
Void or Voidable Title:
Void title passed to BFP: title is still void
Voidable tilte passed to BFP: becomes confirmed, BFP gets to keep

INVESTMENTS
Harvard College:
Prudent Man test = line drawn btw prudent and speculative investments
> as long as selection or retention was prudent, trustee was ok

Page 73

Page 74
- asset by asset basis: if trustee purchased 9 prudent assets and 1 speculative one,
the trustee was liable for the one speculative one
- inflation not considered
Other approaches:
Legal List = state actually produces list of permitted investment in statute
- trustee is liable if investment not on list
Uniform Prudent Investor Act = reasonable care, skill and caution
- judges prudence by total investment mix, not asset by asset
- not allowed to keep original assets if dont meet the requirement of the UPIA
* personal representative covered as trustee under this act
Retention Provision:
- if settlor wants investment in family business to be kept, should use this, or..
- if settlor wants to keep personal residence

MO:
469.901: settlors control over trustee (supp 15)
469.903: duty to review investments and make sure they are diversified, exception (supp 15)
469.904: trust assets: retention and disposition (supp 15)
469.905: must manage investments solely in interests of beneficiaries (supp 15)
469.906: multiple beneficiaries: trustee must invest impartially (supp 16)
> taking into account the purposes of the trust (doesnt mean that they have to
treat everyone equally if trust purposes dont allow this)
469.907: trustee can only incur costs reasonable w/ respect to purposes, assets, skills (supp 16)
469.907: compliance determined by facts at time of decision, not hindsight (supp 16)
469.908: delegation to agent (supp 16)
>
not supposed to delegate discretionary distributions
469.910: terms that allow all investments allowed under the act (supp 17)

469.902. Trustee duties and powers--decisions to be evaluated in context of trust.

1. A trustee shall invest and manage trust assets as a prudent investor would, by considering the
purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this
standard, the trustee shall exercise reasonable care, skill, and caution.

Page 74

Page 75
2. A trustee's investment and management decisions respecting individual assets and courses of
action must be evaluated not in isolation but in the context of the trust portfolio as a whole and as
a part of an overall investment strategy having risk and return objectives reasonably suited to the
trust.
3. When investing and managing trust assets, a trustee shall consider the following as are
relevant to the trust or its beneficiaries:
(1) General economic conditions;
(2) The possible effect of inflation or deflation;
(3) The expected tax consequences of investment decisions or strategies;
(4) The role that each investment or course of action plays within the overall trust portfolio;
(5) The expected total return from income and the appreciation of capital;
(6) Other resources of the beneficiaries known to the trustee;
(7) Needs for liquidity, regularity of income, and preservation or appreciation of capital;
(8) An asset's special relationship or special value, if any, to the purposes of the trust or to one or
more of the beneficiaries; and
(9) The size of the portfolio, nature and estimated duration of the fiduciary relationship and
distribution requirements under the governing instrument.
4. A trustee shall make a reasonable effort to ascertain facts relevant to the investment and
management of trust assets.
5. A trustee may invest in any kind of property or type of investment consistent with the
standards of this act**.
6. A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's
representation that the trustee has special skills or expertise, has a duty to use those special skills
or expertise when investing and managing trust assets.
Statute of Limitations:
1 year after a report is sent
5 years after termination of the trust

Page 75