Decedents EstatesGeneral Information

Three means by which wealth transfers in America:

Will Substitutesvast majority of wealth transfers this way.

o

No probate

Tenancy by the entiretyCL term; people who are married, upon the death of one
spouse, it goes to the surviving spouse, not through probate; WROS; joint tenancy in
community property states

Named designated beneficiary on insurance policy, IRA, etc.

Truststestamentary, inter vivos

Social securitymust go to spouse to whom decedent is married on the date of death;

ERISAmust go to named beneficiary, regardless

Testate Successiondie with a valid LWT

Intestate Successiondied w/o a valid LWT or will substitute

Hodel v. Irving (1987): Facts: Native American case, govt taking land from heirs. Holding
there is a constitutional right to bequeath or devise property (a property right). A person cannot be
deprived of land inherited from a decedent w/o just compensation.
To what extent should we allow people to control conduct after they are dead?
TOOLBAR: Three public policy restrictions:
1. General public policy
a. Public health (cant have ashes scattered over Washington DC)
b. Wastecannot direct the destruction of property
c. Cannot intend or encourage disruption of a family relationship (encourage separation or
divorce or family discord, i.e. heirs are forbidden to speak to disinherited daughter)
2. Protection of spousecannot disinherit a spouse unless spouse agrees
3. Protection of childrencan disinherit them, but they have rights
Shapira v. Union National Bank (1974): Facts: Controlling Orthodox Jewish father wants to ensure
his children marry Jews. Holding: Conditions in LWT are reasonable restrictions & valid. BLL: If
condition is not reasonable, you get $$ as if you met the condition; it is stricken; cts refuse to
enforce unreasonable conditions.
Everman v. Mercantile Trust (1975): Waste is contrary to public policy. Cannot tear down
testators house after death; can tear it down before dead, though.

Transfer of a Decedents Estate

Non-probate property: Joint tenancy, life insurance, POD accounts, interests in trusts

Personal representativeperson who administers the will or intestate estate

What happens when someone dies:

1.

Look for will (hopefully at home)

2.

Go to probate office w/death certificate

3.

Complete forms

4.

Get a bond (surety for 9 months) for value of the estate

5.

Publish death notice in newspaper/duty to notify the heirs with certified letter

6.

Give stuff to probate clerk, who submits it to a judge

7.

Get letters testamentarynow have ability to inventory the estate

8.

Inventory assets, pay debts. Dont sell any stock or real estate or cash any bonds unless you have
to, and then not w/o the advice of stockbroker or accountant

9.

After 9 months, go to ct with list of assets and expenses paid

10. Pay yourself (the lawyer)fee must be approved by the judge

11. Pay the heirs
12. File income tax

Intestate SuccessionNew UPC (1990) 2-102 &

2-103

1. Is there a valid spouse (S)? VTcivil union will

satisfy; HIreciprocal beneficiary satisfies If you
are survived only by a spouse, surviving spouse
gets it all

EF

MN

2. Parents (IP)Are they still alive? Parents will get

something, they deserve a return on investment. S
gets first $200K of AE, then of remainder;
parents get of AE

(x)

GHI

KL

OPQ

ST

3. Issue (I)children, grandchildren, etc.; inclusive term. Issue trump parent; if there are issue,
parents get nothing.
a. Intestate distribution:

If all issue are product of decedent (X) & S, then S gets 100% of the estate

If S had child (I-1) by prior marriage (not adopted by X), and X & S had child together
(I-2), S gets $150K and of remainder. Other goes to I-2.

If X had child (I-1) not related to S, and there is a child (I-2) of X & S, S gets first
$100K, then of remainder. Other is divided between I-1 and I-2. Also holds true
if X-S had no children together (I-1 gets other of remainder).

b. Non-marital children and adopted children get equally to children of marriage

c. Adopted children: Equitable adoptionnot through courts, raising child as your own (not
recognized in all states); Stranger adoption; Third party adoption
d. A child born of an intact marriage is rebuttably the child of the husband (in PA
irrebutable)
Collateral Distribution

Collateral distributionno S, I or P; distributed to siblings & other relatives

2

Lineal distributionthink of first row as children rather than siblings of decedent (x)

Distribution TOOLBAR
1. NOK (next of kin)first in line where there is a survivor get/gets it all [Example: If A & B
are alive & C & D are dead, A & B get 50% of estate each]; usually not in state statute, but
often used in wills, give my property to my next-of-kin.
2. UPC Oldmajority method in American today. Go to first line where there is a survivor &
make per capita distribution. At every succeeding line, make per stirpital distribution.
[Example: If A is alive, gets per capita share, remaining shares are divided among those in
Row 1 who died but left issue, per stirpes. A-; B,C,D are dead, but survived by issue. to
each issue (line 2) per stirpes. Dont include dead siblings who left no issue in determining
percentage.]
3. UPC Newgo to first line where there is a survivor & make per capita distribution. Then
make a per capita distribution at every other line. Attractive because identical relations receive
same.
4. StrictGo to Row 1, regardless of survivorship, & make per capita, per stirpes distribution.
[If no survivors in Row 1, still start in Row 1 & do stirpital distribution at Row 2; for other
methods you would start at Row 2 & distribute per capita on that line, & per stirpes in Row 3]
Intestate succession--who is a relative?

Spouses are not blood relatives. If brother dies before decedent, widow doesnt get husbands
intestate share.

Committed cohabitating partnersno intestate succession except in HI and VT.

Simultaneous death
o

Uniform Simultaneous Death Act (1953)where there is no sufficient evidence of the

order of deaths, the beneficiary is deemed to have predeceased the benefactor. Amended
in 1991must survive by 5 days (120 hrs)

Janus v. Tarasweicz (1985)cyanide/Tylenol case, wife outlived husband by 2 days on

life support, her father got the proceeds of life insurance policy.

New UPC 2-104 & 2-702 (1990)heir must survive by 5 days.

Levels of consanguinityin most states, the fifth degree is likely the limit. New UPC states
you must be able to trace to common grandparents to inherit.

Half-bloods (collateral distribution issue)focus is horizontally (brothers & sisters)

o

UPC treats -bloods same as whole bloods

Majority of statesif theres a whole sibling & a half-sibling, full sibling gets , halfsibling gets . Even if -blood is adopted (3rd party adoption), it doesnt matter.

Intestate successionTransfers to Children

Posthumous children (born after father dies)takes equally with child already born.

Adopted Children
1.

Stranger adoption: same as child of the body; relationship w/natural parents is null & void.

2.

Third party adoption: stepparent adopts spouses child.

New UPC 2-144(b): allows biological parent to keep rights in the child; parent doesnt lose
his child, rather child gets another parent. Child keeps inheritance rights. Rights of other
parent do not end.
3

Hall v. Vallandingham (1988): same as stranger adoption, replaced parent wiped out as a
relation, as well as all those related through the parent. Based on MD statute (majority of states
have this kind of statute)

3.

Adult adoption: In NY, you cant adopt an adult if you are having sex with that person. Same sex
relationshipspeople were adopting their partner (not the purpose of adoption).

4.

Equitable adoption:
CA Probate codefoster child or stepchild can inherit if relationship began during childs
minority & its established through clear & convincing evidence that the child would have been
adopted except through legal barrier.

ONeal v. Wilkes (1994)Majority: doesnt allow for adoption because he didnt get child
from natural parent. Minority: emphasis on childs conduct. Child fulfilled her obligation as a
child of the person, should now benefit from parent-child relationship.

Non-Marital Children
1. Uniform Parentage Act (1973): Has the child been held out as a child of the parent (on tax
return, stated in court, etc)?
2. State Codes: NY & FL: paternity register; CA: paternity cant be established after fathers
death unless (1) ct order entered during fathers lifetime, (2) father held child out as his own,
(3) impossible for father to hold child out as his own and paternity was established by clear and
convincing evidence. DHL case.
3. Hecht v. Superior Court (1993): Facts: Frozen sperm of William Kane, bequeathed to Deborah
Hecht (2nd wife)who gets ither or kids of first marriage? Holding: Sperm falls under
broad definition of property, bequeathed to Kane; public policycts have supported single
women having right over their bodies to get pregnant.
Intestate SuccessionAdvancement
1. Common LawA parent intends equality among his children; a presumption arises so as to
created that equality. If a parent makes a significant gift to a child, the presumption is that the
gift was an advancement and it must be subtracted from that which would be received.
Examples: wedding, education, expensive car, jewelry, house/condo
2. UPC 2-109 (1990)changes parent/child equation. Holds that no advancement comes into
place unless a significant gift is made from the ancestor to the heir and it is in writing (either
from the ancestor, or an acknowledgement that it is an advancement from the heir). Goes
beyond parent/child (i.e. grandparent/grandchild). If the heir doesnt survive the decedent, then
advancement doesnt apply.
If you have a client with children, and the client has made significant gifts to a child, make sure the
client signs a statement stating the gift was not an advancement. Avoid language that its
something given now rather than at death (i.e. say want to see her happy rather than Id rather
see the smile on her face now than be dead and miss the opportunity.)
EXAM ISSUE: Look at LWTis it valid? If not, then he died intestate. Then look at the doctrine
of advancement in terms of how assets are distributed. Be alert to intestate being an issue, then
advancement.
Intestate SuccessionDoctrine of Expectancy
A living person has no heirs. Would-be heirs (heirs apparent) have an expectancy that can be
destroyed by deed or will. Because it is not an interest, an expectancy cannot be transferred at law.
However, a purported transfer of an expectance, for adequate consideration, may be enforceable in
equity as a contract to transfer if the court views it as fair under all the circumstances.
The law must find something of substance (consideration) to find a contract enforceable
Managing a Minors Property
1. Guardian of a personchildren of a decedent; nominate and appoint someone to take care of
the children (state reasons in the LWT for that particular person to be the guardian)
2. Guardian of propertyindividual who has property (e.g. bank acct, stocks); guardian would
have responsibility to maintain the property
3. Custodianterm that arises because of Uniform Gift to Minors Actability to maintain
property for a minor
4. Trusteedraft trust whereby there is a trustee & guardian; guardians ask trustee for funds for
the child. Can have house, where there are guardians for the house, held in trust for the child,
5

to keep the child in the home to prevent the trauma of moving. It can be written in the trust
that the home becomes the guardians when the child reaches 18 or 21.

Parts of a LWT:
1. Revoke previous wills & codicils
2. Bequeath and devise property
3. Residuary clause (who gets residuary estate, what is not named in an individual bequest)
4. Establish a trust for children, including making distributions, naming trustees, absolve trustees
of liability unless they acted in bad faith, willful misconduct or negligence. State powers of the
trustees
5. Define terms, such as child and children
6. Signature

Bars to Succession
1. Reasons to bar succession
a. Cannot profit from wrongdoing: Homicide, spousal abuse (in NY), marital separation (in
some states), abandonment/desertion
b. In re Estate of Mahoney (1966)woman convicted of husbands murder cannot inherit
from her husband. Also applies to will substitutes. Her descendents (who are not also his
descendents) are barred as well.
c. Elder abuse
2. Disclaimer:
a. Releasedone inter vivos (before the death of person from whom you are seeking to
take). Require consideration. Example: prenuptial agreement. Must be in writing, must
be fair, must be full disclosure.
b. Renunciationtakes place after the death of the person from whom you are seeking to
take. No consideration necessary. Renounce for tax purposeslet it go as if you are dead,
goes to your kids. Play on unlimited marital deduction and $1.1M aggregate deduction to
children.
In re Estate of Garbade (1995)Facts: Prenup agreement, released/waived right to elect. She
argues fraud, duress. Holding: she was derelict, no unfairness. Agreement assumed valid
unless there is shown to be unfairness.
Migrating couples
Multistate property holdingslaw of situs controls problems related to land. Property
obtained in CP state retains its CP value no matter where the couple lives.
Moving property from state to stateIf you acquire property in a CP state, but move to a CL
state, it is still CP.
ON EXAM, WE PICK WHETHER WERE IN A CL OR CP STATE.
What Qualifies for Marital Deductions
Transfer outright or in fee simple
Create a trust giving W income for life & POA the principle at death to whomever she pleases
Creates a trust giving W income for life

Medicare v. Medicaid
Medicare: must be over age 65, no income limitations to receive benefits
1. Physicians
2. Medical facilitieswill pay for hospital, treatment and rehabilitation, not nursing home
3. Prescription drug benefits (pending)
Medicaid: medical assistance for the poor, any age; pays for nursing home
1. Have to make yourself poor
2. Must divest yourself completely of all but marital house (for living spouse), engagement &
wedding rings, and $2500 to pay for funeral at least 36 months prior to declaring self eligible.
3. Troy v. Hart (1997): Facts: Brother in nursing home; renounces inheritance of decedent so
sisters get money instead of nursing home. Holding: Assignment of an expectancy that was
violative of public policy because it abused a federal grant program. Ct uses of constructive
trust to do equity. By law, the money belonged to the sisters (who were unjustly enriched),
they became constructive trustees to do equity, and nursing home was named as beneficiary.

Community Property states v. Common Law states

Community Property (CA, TX, ID, WA, NM, WI, AK):

All property acquired during marriage is owned by both

partners, community property. Property acquired prior to
marriage or by gift or inheritance is separate property of the
individual. No difference between death & divorce.

CL
CP

Divorce
Equitable division,
title important

Death
or of
probate estate

of CP (plus separate
property), title not important

of CP

Title means nothing

WS successions are still community property, regardless of who is the beneficiary

Example: Husband dies, leaves spouse, no issue/parents. She gets her separate property and of the
community property; by statute gets his half too (CA statutegets his of CP plus a share of his
separate property). If he had parents or issue (not hers), his separate property is divided per 2-102 &
2-103. Election against estate/valid LWTgets all her separate property plus half of the community
property. The rest goes to the named party in the will. Widow gets more under intestate succession.

Common Law:

Title matterswhoever has the title has ownership, and can bequeath as he/she sees fit in a LWT; salary
is the property of the wage-earner.

Law says that in a state where there is CL, equity applies.

States will usually provide for or of probate estate (testate & intestate succession) through election.

Great dissimilarity between divorce & death.

Augmented Estate (AE)How UPC fixes the CL discrepancy

1
Probate estate
Testate & intestate property

2
Non-probate transfers (WS)
Ability to withhold it,
withdraw it; i.e. joint savings
accounts

3
Any gift in aggregate of >$10K
in the last 2 years. (including
irrevocable trust)

Example 1: Rays PE = $10K, WS = $100K, gifts = $100K. AE = $210K. Depending on state

statute, divide AE by ($105K) or ($70K). If spouse already got $50K in WS, then its
subtracted from her total. Elective share = $55K or $20K. Old UPC: Length of marriage
unimportant. New UPC: graduated depending on length of marriage.
DONT CONFUSE WHAT YOU GET THROUGH INTESTATE SUCCESSION WITH WHAT
YOU GET UNDER ELECTIVE SHARE.
Example 2: PE = $5K, WS = $5K, Gift = $200K. Wifes elective share = $105K. Old UPCexhaust box 1, then box 2, cant touch box 3 (absolute gifts). She only gets $10K.
In re Reynolds (1996)How much does it take to go from Box #1 to Box #2 to Box #3? Facts:
trust irrevocable as of 1 day before deathwhich box? Holding: Box 2 asset, available for right of
election. Retained POA which left her w/meaningful control during her lifetime.

Election Against Augmented Estates

Five options in Tool Bar:
1.

UPC New/Old (10 states): Old of AE. w/in each box-ratable abatement. Newsliding scale.

2.

NYearliest AE statute: surviving spouse gets $50K or of AE, whichever is greater

3.

Illusory Testjudicial doctrine (majority of states): Can look to revocable transfers & regard them as
illusory; there was no real transfer, so they can be included in AE (OBrien doesnt like)

4.

Intent to defraudjudicial doctrine: In order to provide that the asset be brought back into calculation
for purposes of augmentation, have to prove individual intended to defraud the surviving spouse

5.

Intent to Transferjudicial doctrine: prove there was a true intent to transfer in spite of the claims of the
surviving spouse (tough test)

In Re Estate of Cross (1996)Right of election of surviving spouse. Facts: Old woman w/Alzheimers in nursing home,
husband dies, left LWT, everything to son. Widow cant personally elect against LWT, but her conservator want to on her
behalf. Holding: If a person is incapacitated to elect, someone may elect on his/her behalf if its in his/her best interest.
Medicare spend-downheld in trust to pay for care, anything left over goes back & passes according to husbands LWT.
In Re Estate of Cooper (1993)Facts: Two men cohabitated, one dies leaving valid LWT, survivor wants to elect against
the estate as a functional family person (spouse). Holding: NY said No, doesnt apply to non-marital partnerships. BLL:
intestate/succession rights can only be exercised by a surviving spouse.
Sullivan v. Burkin (1984)Facts: man survived by spouse (estranged for 22 yrs) & child; set up irrevocable trust where
he retained power during his life. Holding: inter vivos trust is part of estate of deceased, includable under right of
election.
Use UPC Old for exam.

Testate SuccessionHolographic will

No witnesses needed
1. CL requirement: Totally in the handwriting of the decedent; must be signed and dated (and
must be permanent)
2. UPC: requires signature and material portions in the handwriting of the decedent
3. 12 states allow for holographic wills
Example: Make handwritten change to will ($5K to $50K to Yvette). Cross out of $5K is a
revocation. Unless $50K is a holographic codicil, beneficiary gets nothing. Not a valid codicil
under CL, and probably not under UPC.
In re Estate of Johnson (1981)Facts: Form will used, signed but not witnessed. Holding: Cant
probate unless written-in words satisfy holographic will requirements, and they dont. No
language of testamentary intent (Last LWT, before I die, I want toI hereby bequeath). Deathtalk is missing. Invalid because there are no witnesses and it isnt a valid holographic LWT.
Kimmels Estate (1924)Facts: letter to sons from father, devising how property is to be
distributed in the event of his death. Holding: Letter is testamentary in character & signature is
sufficiently compliant with Wills Act, and is thus a valid LWT.

10

Testate Succession--Witnessed Will

Two bases for contesting a will: Formalities & Intentionalities
Formalities
1. Sufficient number of witnesses (2 in most places, 3 in VT and LA)
2. Presence test (three prong)(1) witness saw the testator sign; (2) testator saw witnesses sign;
(3) witnesses saw each other sign.
3. Must be signed at the endanything after the signature is presumed to be added after
execution and is inadmissible
4. Must be full intended signature
5. Self-provedsome states have adopted by statue; If a notary public watches all the
formalities, when they are done, the formalities become irrebuttable. Cannot be contested for
formalities
6. Substantial compliance/harmless errormeans by which LWT will be allowed to be pro
bated even if all the formalities are not met.
a. Substantial complianceUPC term. If there is clear and convincing evidence that the
testator intended this to be his LWT, even though all the formalities are not met, there is
substantial compliance allowing for the probate of the instrument
b. Harmless errorcommon law term
Intentionalities
1. Testamentary Capacityde minimus test; you can be in a mental asylum and still have testamentary
capacity. Four elements: (1) Understand objects of your bounty (who are your relatives); (2) Understand
extent of your wealth; (3) Understand nature of the transaction (the LWT); (4) Can interrelate the first
three. To draft a will for an incompetent person is a breach of professional ethics. Only lack of
capacity will strike the whole LWT; others will only strike the passage of the will that is affected.
2.

Delusionhave an irrational view of reality; functional, but delusion has happened; insane delusion if
you lack a rational basis. In re Strittmater (1947)woman delusional for leaving estate to womens
group. Ct holdingno rational basis for her extreme views, must be delusion. In re Honigman (1960)
Facts: old man thinks old wife was bringing up men through the window w/bedsheets, leaves her
almost nothing in LWT. Holding: Remanded to see if there was a rational basis for his belief to rebut
contention of delusion and invalidate the LWT. Even if accusations are groundless, they are not delusion
if there is a rational basis.

3.

Undue influenceFAVORITE ON EXAM

4.

Fraudintentional misrepresentation of a material fact upon which the party relied. Latham v. Father
Devine (1949)Facts: relatives claimed fraud by doctor (agent of Fr. Devine) no need for operation,
done before new LWT executed, disinheriting Fr. Devine. Holding: Fraud is bad act, constructive trust
created to do equity.

5.

Mistakefix through primary intent (i.e. get beneficiarys address wrong in LWT)

6.

Premortem probatecorresponds w/self-proved wills; if you go before the probate clerk and swear it
is your LWT, (in ND, OH, HI, AR only), the intentionalities are irrebuttable.

Natural will v. unnatural will

Natural willbequeath and devise property to family, cts favor family
Unnatural willbequeath and devise property to strangers (non-family)
Tortuous Interference with ExpectancyIf you want to write a LWT to benefit Greg, and Sarah
kept you from executing the LWT before you die, Greg cant benefit from the LWT. He can sue
Sarah for tortuous interference.
11

Plain meaning ruleif something is plain, no ambiguity, then the court is not going to mess with it,
even if it isnt right to do that.

12

Testate Succession--Witnessed Will

Undue Influence--BLL:
Whenever you have a contest based on undue influence, initially the burden is on the contestant, unless
you can prove a confidential relationship between the beneficiary of the LWT and the decedent/testator
If you can prove there is a confidential relationship, burden of proof shifts to the beneficiary
Types of confidential relationships: Attorney-client, priest-penitent, guardian-ward, doctor-patient,
relationship of trust
o

Must rebut with a preponderance of the evidence, unless there is > 1 confidential relationship.

If there is more than one confidential relationship, then must rebut with clear and convincing
evidence.

Look for diminished capacity of the decedentwas control exercised over the mind of the testatrix as to
overcome her free agency and free will and to substitute the will of another so as to cause her to do what
she would not otherwise have done but for such control.
Hays decision (Isabel Dutreau, daughter Dorcas and attorney Buttermore)
Lipper v. Westlow (1963)Facts: Widow disinherited children of deceased son; they claimed undue
influence by other son. Holding: Woman was of sound mind, was strong, free & clear.
In re Will of Moses (1969)Facts: Woman names younger lover her estate, relatives claim undue influence.
Holding: unnatural will, ct focused on immoral relationship, not the law, found for relatives, voiding LWT.
Dissent follows the law, she was a successful businesswoman, had an independent mind, no undue influence.

In re Kaufmanns Will (1969)Homosexual relationship; undue influence, will fails (like Moses).
Contesting Witnessed LWTs based on insufficient Formalities
Failing Formalities
In re Groffman (1969Great Britain)Facts: Man dies, leaves wife life estate. She wants more. Holding:
Signatures dont meet presence test.
Estate of Parsons (1980)will failsinterested witnesses, doesnt meet formality requirement.
BLL (TOOLBAR): if you have an interested witness, and they are necessary to have a sufficient # of
witnesses:
1.

Case rulewhole LWT fails

2.

CA approachwill is valid, but the interested witness has a presumption of Undue Influence; must
rebut that presumption on the preponderance of the evidence that the mind of the testator was free and
clear

3.

MA approachonly bequest to the witness is voided and passes through the residuary clause, but the
witness is still a valid witness

4.

UPCdoesnt matter; no presumption, who cares? It doesnt matter if witnesses are interested parties,
its a valid will

In re Pavlinkos Estate (1959)Facts: husband and wife accidentally sign each others LWTs. Man dies.
Holding: No valid signature, wasnt his LWT, he died intestate. Could have been fixed through doctrine
of Mistake, except ct applied Plain Meaning Rule.
In re Will of Raney (1991)doctrine of harmless error (UPC 2-503). Facts: self-proved affidavit signed &
witnessed, but LWT signature page not witnessed. BLL: If there is clear & convincing evidence of intent of
testator, even though the formalities havent been met, they have been accomplished & LWT may be
probated.

13

Recommended Method for Executing a Valid LWT

1. Give client questions to answer, come back for meeting
2. Lawyer looks over the answers, brings in client
3. Give client the real will, lawyer keeps copy. Make sure names are correct, no misspellings
4. Call at least three witnesses. Chitchat, show that testator has capacity.
5. Do you declare this to be your LWT, of ## pages? Sign this (read signatory statement)
6. Attestation clausethree witnesses, watch them sign. on behalf of X, I ask you to come
forward and sign this
7. Witnesses come forth. Hide the writing of the will, so they cant read it when they sign, date &
provide address.
8. Give LWT to testator. Keep copy that is void of signature.
9. Toast with champagne.
10. No wax seal or ribbon needed.
11. Self-proving affidavit.
12. Safeguard will in metal box w/ other important papers. Client should keep LWT in house

Revocation of Wills
1.

Subsequent instrument
a. ExpressI hereby revoke all wills & codicils to wills heretofore made by me.
b.

2.

Physical Act
a. Destructionburn, obliterate LWT writing. CL: must touch the writing. Thompson v. Royall
(1934); UPC: doesnt have to touch the writing. Can do by proxy in conscious presence of testator.
b.

3.

Implied Inconsistency: give wagon to Bill in LWT#1 & to Sarah in LWT#2. Wagon goes to
Sarah.

Lost willit happens a lot. Any LWT that can be traced to the possession of the testator & cannot
be found at death is presumed revoked. Harrison v. Bird (1993). The presumption must be rebutted
by clear & convincing evidence, unless the person who had access to the LWT also would be the
one to benefit by non-production. Then presumption must be rebutted by the preponderance of the
evidence.

Operation of Law
a. CLmarriage or birth of a child will revoke a LWT that was executed prior to the marriage or birth.
Decedent doesnt die intestateit makes them a pretermitted spouse or child.
b.

Wills Act (1832)marriage alone will revoke the LWT

c.

Significant change of circumstancesthings arent the same as they were when will was written.

d.

DivorceCL: completely revokes will; UPC: only revokes provisions in favor of former spouse
and any relatives of the former spouse that are no longer decedents relatives. Also applicable to
Will Sub.

UPC 2-507: LWT or any part is revoked by (1) execution of subsequent will; (2) physical revocation; (3)
inconsistency.

14

Revival of a Will
1.

New valid LWT

2.

Re-executionTestator crosses out the signatures. Re-executed with new signatures. Not a good idea.

3.

Revoke revoking willCL: automatic revival of LWT#1; ECC/UPC rule: not automatic, talk about what
testator would have wanted. If the first will was revoked by physical act, then once LWT#2 is gone,
there is still physical revocation of LWT#1.

4.

DRR (dependant relative revocation)/mistakeintent to revoke LWT#1 is contingent upon probate of

LWT#2. Only applies when you have physical-act revocation. A.k.a. doctrine of mistakemade
mistake when testator revoked Will#1; allows Will#1 to be probated. Never would have revoked by
physical act if knew new LWT wouldnt be probated.

5.

Republish by codicilExample: after divorce, really want LWT to be valid. The LWT executed on
mm/dd/yyyy, having been revoked because of divorce, is hereby revived by this codicil. Signature &
witnesses. Can be done for revocation of LWT by physical act.

Harrison v. Bird (1993)Facts: old lady asks atty to destroy LWT, he does, mails pieces to her. Pieces cant
be found at her death. Holding: Lost LWT, presumed revoked. Cant probate copy.
If presumption of lost will is rebutted, it can be proved/probated by a copy in lawyer-drafters office or by
secretary who typed the LWT or other clear & convincing evidence.
Carter v. 1st United Methodist Church (1980)Fact: valid, typed LWT, marked with changes in pencil.
Holding: physical revocation was done with intent to write subsequent LWT, cancellation & making new
LWT were part of scheme, revocation dependant on creation of new LWT. DRR, first LWT revived,
probated.

2nd LWT must be similar to old LWT for DRR.

Components of a will
Three things that comprise the content of the LWT other than what is there in writing:
1.

Incorporation by referencein order to be incorporated by reference, that which is incorporated must be

in existence when LWT is executed. Example: I declare that all my money be held in trust
incorporated by reference VA code 16.1 the powers of a trustee in Commonwealth of VA.

2.

Legal Listwritten list that is may come into existence before or after LWT is executed & refers only to
personal property other than money & is signed and referred to in the LWT. Example: Give & devise all
personal property in accordance with list I am maintaining. Can continue to change the list. UPC 2513.

3.

Items of independent significanceDescribe something in a LWT that isnt in existence, but may come
into in existence at the time LWT is executed. Example: Hereby give, devise & bequeath the
automobile I possess at the date of my death to Pam. Trust powers in existence at the time of my
death. 2-512. Time freezes at time of death. Subsequent changes to trust law dont apply to estate.

Clark v. Greenhalge (1991)Incorporation by reference. Facts: 1977 LWT, 1980 codicil, 1979 memo
reference in 1977 LWT. Holding: codicil republishes the will, memo is in existence & can be incorporated by
reference. Codicil is after date on memorandum.
CANNOT PIGGYBACK WITHOUT A VALID PIG. Must have a valid LWT, doesnt violate RAP, then ask,
how is property distributed? Cannot have a valid codicil w/o a valid LWT.
Johnson v. Johnson (1954)Typed LWT, never witnessed, handwritten info at top, signed. Majority: LWT
incorporated entire page (natural will, ct wants it probated). Minority: not valid LWT in the first place, cant
have a codicil through an invalid instrument. As one instrument, lacks formalities, not valid LWT.

Contracts relating to wills

A LWT and a contract are not the same thing.
If, after a contract becomes binding, a party dies leaving a LWT not complying with the
contract, the LWT is probated but the contract beneficiary is entitled to enforce the contract by
having a constructive trust impressed for his benefit upon the estate or devisees of the defaulting
party.
15

 Contracts cannot revoke a will

Example: Ray offers Kristine X if she supports Kim. When Ray dies, he leaves X to Martha.
Kristine can sue Martha, has a claim against it. Contract doesnt take precedence over LWT.

16

Pretermitted Spouse
By statute
Example: Write LWT in 1980, marry in 1985, LWT makes no reference to a spouse. She takes as a
pretermitted spousean intestate portion.
Spouse can disclaim (release before death of testator) through a prenuptial agreement.
We dont revoke LWTs (as under CL) because of marriage. Same with pretermitted child.
Can specifically state in LWT that pretermitted spouse or heir do not apply to this estate, but doesnt
prevent spouse from contesting or electing against the will.
Spouse always gets greatest share in intestacy.
Via v. Putnam (1995)Facts: mutual LWTs, wife dies, husband remarries, dies. 2nd wife wants intestate share as a
pretermitted spouse. Holding: Pretermitted spouse statute applies, public policy favors marriage & surviving spouse,
must be plain language in LWT of intent not to benefit pretermitted spouse. Wife gets intestate share, rest of estate
follows LWT provisions.
Erickson v. Erickson (1998)Facts: LWT signed 3 days before marriage. Is she pretermitted spouse and gets intestate
share, or LWT effective and she gets it all? Holding: Although LWT should be revoked & plain meaning rule followed,
scribners mistake/error can bring in extrinsic evidence to show testator believed LWT to be valid after his marriage.
Estate of Shannon (1990)Facts: Spouse omitted from premarital LWT, everything goes to daughter. Valid marriage,
she survives him. Holding: Strong state public policy in supporting surviving spouses. Under plain meaning rule,
language didnt bar pretermitted spouse application. LWT on its face didnt intend to disinherit wife. Ct will give effect to
clause against pretermitted spouse as long as spouse can still elect or contest.

Pretermitted Heir
Someone born in Area 2 is pretermitted heir; takes intestate portion of the estate. LWT still in effect,
using the others to compute the amt child would take.
Cannot be pretermitted if you are named as part of a class
UPC Pretermitted Child statute 2-302if you leave a child who receives a bequest (real or personal
property) in the LWT, but there is an additional child that is a pretermitted heir, that child takes
substantially what the other child would have received. Doesnt apply if it appears from the LWT that the
omission was intentional or the testator provided for the child outside the LWT (legatee/devisee).
Multiple childrenpretermitted heir gets average of value of what other kids get. Equity of people who
are equal should be treated equally. Prevents huge windfalls for the pretermitted child over earlier-born
children. Share limited to devices made to the testators then-living children under the LWT.
Cannot be a pretermitted spouse or heir if you dont survive the decedent by at least 5 days.
Example: Ray executes LWT in 1974, property to wife & 3 kids; Kim born in 1980. Ray dies in 1990. If
in LWT, he divides property amongst wife, kids (named) & any other kids born or adopted, Kim is
member of the class & takes a class share. If LWT says wife & named children, then Kim is a
pretermitted heir. If LWT is republished with a codicil in 1985, Kim not a pretermitted child.
Azcunce v. Estate of Azcunce (1991)Facts: LWT 1983, child born 1984, codicil 1986. Holding: LWT
republished, child not pretermitted heir, gets nothing. In FL no privity, child cant sue lawyer for
malpractice.
In re estate of Laura (1997)Facts: Testator has 3 kids, 1 dies (Area 1), survived by issue Neil & Richard,
Neil predeceases, leaves 2 kids who survive testator. LWT specifically says Neil gets nothing. Holding:
Neils issue get nothing. Ascending heir named prohibits descending heirs from taking.

17

Construction of Wills/Interpretation & Intention of Wills

1.

Plain Meaning Ruleif language is completely plain, you cant possibly change it.
a.

Once a court starts to ignore, alter or rewrite the clear, plain and unmistakable provision of the
Wills Act in order to accomplish equity and justice in that particular case, the Wills Act will become
a meaningless, although well intentioned scrap of paper, and the door will be opened wide to
countless fraudulent claims which the Act successfully bars

b.

If something is plain, then you cant bring in evidence that something is inequitable.

c.

Must argue doctrine of Mistake (need clear and convincing evidence)

2.

Latent ambiguityif you look at something and wonder what it is, what it describes, you have a latent
ambiguity. You can apply intrinsic evidence whenever you have a latent ambiguity.

3.

Patent ambiguitywhen you look at the writing, and on its face it is clear that there is a mistake.

Mahoney v. Granger (1933)Facts: Old lady wanted estate to go to first cousins; lawyer drew up LWT to
say divided among heirs at law. Aunt was heir at law. Holding: Plain meaning ruleheir at law was aunt.
Not what testator intended, but tough, because the meaning in the LWT was plain.
Fleming v. Morrison (1904)Facts: Evil man wanted sex with Mary Fleming, drew up LWT, told witness it
was a sham will. Holding: didnt have 3 witnesses since one witness knew it was a sham, LWAT fails
formalities (not enough witnesses)
Estate of Russell (1968)Facts: Holographic LWT, woman names friend & dog to receive property jointly,
dog predeceases, relatives want its share, friend argues latent ambiguity, estate given to him to care for dog.
Holding: No evidence of survivorship arrangement, dogs share falls into residual estate, goes to relatives.
Anti-Lapse TOOLBAR
Common law is lapseif devisee doesnt survivor testator, device lapses. A statute remedies & does antilapse. All LWT gifts are subject to requirement that devisee survives testator, unless otherwise specified.
StatuteIf predeceased relative is survived by issue, the issue takes devise given to relative in LWT or WS.
Since its a relative, testator would rather the issue take bequest rather than property pass to residuary legatee.
Anti-Lapse: A means by which we give to the relatives of the decedent. Need horizontal link, not lineal link.
Simultaneous death can also bring about anti-lapse. 8 elements
1.

Valid LWTno intestate succession in anti-lapse. If LWT isnt valid, you cannot piggyback onto it.

2.

Valid POD Accountssuch as Will Substitutes (i.e. life ins. policy). Anything payable to someone at
testators death is POD. New UPC allows for valid POD accts to come under anti-lapse. Joint accts are
tenancy in common, not POD accts.

3.

Conditionsare there conditions, i.e. $1M to son David if he survives me.? New UPCsurvivorship
w/o more means nothing, anti-lapse applies. Must say if he does not, then to Dottie. No anti-lapse.

4.

Relativemust be a blood person (father, mother, grandparent, child, niece, nephew, adopted child,
cousin). Doesnt include spouse or stepchild.

5.

Issueinclusive term (descendents). Child= exclusive term. Must have issue that survive testator to
take.

6.

Area 1 & 2anti-lapse can apply before or after execution of LWT.

7.

Class Giftsany designation that is capable of increase or decrease on its own (i.e. Davids siblings)

8.

Powers of Appointment (POA)you need to put one chart upon another in order to do anti-lapse.

Anti-Lapse Cases
Example: Ray dies w/valid LWT, bequests $1M to Mark, who predeceases Ray. Mark has issue, who get per
stirpital share. Never use anti-lapse if testator specifies that beneficiary must survive him/her.
Allen v. Talley (1997)Facts: LWT states, to my living brothers & sisters. Holding: Testator meant
brothers and sisters alive at her death. Issue of predeceased siblings cannot take under anti-lapse.
Jackson v. Schultz (1959)Facts: Man dies, no heirs, 3 step-children. Valid LWT leave everything to
predeceased wife, to Bessie & her heirs & assigns forever. Cant do anti-lapse, wife is not a relative. She is
residuary legatee, estate should go through intestacy, but he had no relatives and it would go to state.
18

Holding: changes word of limitation (and) to words of substitution (oralternate taker). Through doctrine
of mistake, misunderstanding of difference between and and or, he meant estate to go to his children.
Mistaken connotation of words used in LWT. Using clear & convincing evidence, testator wanted stepkids to
take.
Dawson v. Yucus (1968)what happens when there is no class. Facts: Woman leaves valid LWT, wants
land to go back to husbands family, leaves it to 2 of his nephews (named). One predeceases but has issue.
Holding: Issue cant take via anti-lapse, nephew wasnt her blood relative, it lapses. Land went to named
individuals, not generic class description, nothing in language of LWT indicating testatrix intended to create
a class or survivorship gift, surviving nephew doesnt get it. Deceased nephews portion goes to residuary
legatees.
In re Moss (1899)what happens to lapse when there is a class gift. Facts: Man executes 1876 LWT, dies
1892, leaves life estate to wife, upon her death in trust to niece Lizzy & children (unnamed) of his sister
Emily. Niece dies in 1891, no issue. Residuary legatee wants nieces share, argues that because Emilys kids,
not named), a class & trust divided among surviving class members.

FOR EXAM: Four children survive to Area 4, one dies each in areas 1,2 & 3.
TrustsGeneral (five elements)
A SETTLOR (S) transfers the RES with INTENT to a TRUSTEE (T) who has LEGAL TITLE to
benefit named BENEFICIARIES (B) who hold EQUITABLE TITLE.
Settlorperson or group of persons who establish a trust
Resthe thingcan be stocks, bonds, jewelry, anything including a future interest
Trusteehas legal title
In order to have a valid trust, the trustee must owe equitable duties to someone other than herself.
Relationship between S & T is through INTENT OR PURPOSE;
1.
Might be discretionary (the Trustee does what he thinks is best)
2.

Might be non-discretionary (must do what Settlor says to do with the res)

A settlor may be both trustee and a beneficiary.

Example (p. 557): O executes written declaration of trust declaring herself trustee of Whiteacre, to
pay income therefrom to herself for life, and upon her death Whiteacre is to pass to A. This is a
valid trust. If O were the sole beneficiary and also the sole trustee, the trust would not be valid
because no one could hold O accountable for performance of the trust duties, merger occurs, trust
ceases.
TrustsBeneficiaries
Beneficiaries hold equitable interests; can have personal claim against trustee for breach of trust.
No trust beneficiary = no trust.
Types of Beneficiaries:
Privateprivate individuals, no advantages against the Rule Against Perpetuities
Charitablehave benefits; you dont have a problem with RAP, must be concerned with
education, health, government, religion. Must be able to convince in court it benefits a
large number of persons (indefinite group of persons)
Honoraryhybrid between public and private charity;
o i.e. a cemeteryis it charity or private? Public policy supportwill provide by statute
o Petsallows for a trust to benefit a pet that would not violate RAP. In CA, a pet trust is
charitable, not private. Dont let animal be the measuring life.
Clark v. Campbell (1926)Facts: Man tells trustees to give stuff to his friends, they have no idea
who friends are, need some way to determine who they are. Holding: The gift failswe know res,
19

settlor, no trust fails for lack of trustee, but cant enforce because we dont know who beneficiaries
are. No definite & ascertainable beneficiaries, no way to resolve latent ambiguity.
In re Searights Estate (1950)Facts: Man dies, leaves LWT providing $1000 to dog
(Trixie), 75/day. At death of dog, remainder to go to named heirs living at the time.
Holding: Honorary trust, money will run out in 4 years, 57 days. Event will occur w/in 21
yrs of mans death, doesnt violate RAP.

20

Trusts--Trustees
May be settlor or third party or beneficiary

No trust fails for want of a trustee (if none is named in LWT, ct will appoint a trustee)

Duties of the trustee must be enforceable

Exculpatory clausesno trustee shall be liable except for own willful neglect or default.

Powers of a trustee:
Sale
Reinvestment of proceeds of
sale

Borrowing money

Waste

Creditors

Leasing

Expenses

Miscellaneous

Duties of Trustee:

Discretionary Trustwelfare, health, etc.

Mandatory Trustincome

Olliffe v. Wells (1881)oral trust. Facts: LWT devises estate to trustee to distribute at his discretion (POA).
Holding: Ct is powerless to supervise him, no valid trust, only he knows the purpose (semi-secret). Not a
gift. Unenforceable trust, results back.
Marsman v. Nasca (1991)discretionary trust. Facts: Trustee (Farr) refuses to give $$ to beneficiary
(Cappy), who becomes in debt and gives house to stepdaughter in return for life estate. Holding: Farr
breached fiduciary responsibilityfailed to inquire into Cappys wellbeing, is personally responsible for
Cappy losing housebad act, ct applies equity, gives principle to Cappys widow. BLL: If trustee has
discretionary trust, there is an affirmative duty to inquire of the beneficiary as to his/her needshas
responsibility to uphold, duty of discretionary clause. Actions must be in good faith and reasonable.

TrustsConcerns of a Trustee
Three concerns of a trustee
1.

Security (CD, Treasury Bond)

2.

Rate of Return (works against security)less secure, higher rate or return; usually do
better with equities (stocks), though real estate in certain locations are very good

3.

Liquiditymust have liquid assets; trustee must be paid, taxes must be paid
Spendthrift Trusts

Definitiona trust whereby a settlor has placed a restriction on the trustee giving income or
principle to creditors of the beneficiary. Beneficiaries cant voluntarily alienate their interests nor
can their creditors reach their interests.
A spendthrift trust will be given effect unless there are public policy considerations, i.e. taxes,
children, spouses.
Trustee cuts off beneficiarys access to the money and gives it to the successor/alternate
beneficiary. Settlor can make restrictions as long as they dont violate public policy. The settlor
is isolating his money from the beneficiarys creditors; dont give the money to the beneficiary if
its going to the creditors. Settlor made the money, he should get to decide how its spent.
NY (statute)all trusts are spendthrift trusts unless expressly stated it isnt.
A self-settled trust cant have a spendthrift clause; creditors of settlor can reach settlors interest
in income/corpus.
ON EXAM: PUT IN A SPENDTHRIFT CLAUSE IF ASKED TO MAKE AN ESTATE PLAN
21

Shelly v. Shelly (1960)Facts: Ex-wives & children go to trustee for funds to support them and the
beneficiarys children; trustee concerned re: spendthrift clause. Can income & corpus of trust be reached by
wives or children? Holding: Clause in will allows trustee to give money to children of beneficiary. Public
policy would benefit children more; kids get corpus & i9ncome, spouse limited to income.
US v. OShaughnessy (1994)Facts: IRS want $$ from discretionary trust; MN Ct holding: Trustees dont
have to give beneficiary a thing, if they dont it isnt available to him, and IRS cant get it. Money belongs to
settlor, doesnt belong to beneficiary until trustee gives it to him. Discretion must be exercised for property
to belong to beneficiary.

Medicaid spend-downself-settled trusts are yours; 3rd party trusts or for a spousecan separate
yourself, not yours

22

Modification & Termination of Trusts--TOOLBAR

1.

Settlor:
a. Right to RevokeS may only terminate or modify if S has retained the right to do so. CA,
TXall trusts are revocable unless stated otherwise. Other statesevery trust is irrevocable
unless provided otherwise. Must be stated in the trust paperwork that S retains the right to
modify or revoke, OR
b. All agreeS may only modify or terminate if everyone agrees w/S (settlor & all beneficiaries,
not trustee)

2.

Beneficiary:
a. All agree, with the Settlor (if settlor is dead, cant do this), OR
b. Settlor gives B the Right to terminate, OR
c.

3.

If the material purpose accomplished, then the trust can be terminated. Clafin
Doctrine/Material purpose ruletrust cant be terminated prior to time fixed for termination,
even if all beneficiaries consent, if the termination would be contrary to a material purpose of
the settlor. In re Estate of Brown. Trustees fiduciary responsibility is to settlor, not
beneficiary.

Trusteeif the trustee wants to terminate

a. All agree (settlor and beneficiaries), OR
b. Settlor says Okaygives the Trustee the ability to distribute principle; gives trustee the ability
to terminate the trust; no principle = no trust.

In re Trust of Stuchell (1990)Material Purpose Rule. Facts: Life income trust, at death of siblings
property distributed to their issue; one issue is disabled, mom doesnt want child to get $$will affect his
Medicaid benefits, but she doesnt want to release on his behalf, wants to modify the trust to add conditions
for him receiving $$. Holding: Attempt to rewrite/modify defeats the intent of settlor, & that intent was
material. BLL: cant terminate or modify a trust if it defeats the material intent of the settlor.

TrustsTypes of Trusts
1.

Revocable trustswhen you establish a trust and retain the power to revoke. In most states, if
you say nothing when trust is created, it is irrevocable. TX & CAsay nothing, its
revocable. You must reserve the power to revoke to retain the power to revoke.

2.

Marital trust (QTIP trust)provide a trust at the date of your death for your spouse for life;
upon her death, to another party. Qualifies for marital deduction, doesnt allow beneficiary to
own the propertyspouse restricted.

3.

Trust for incompetent personi.e. Downs syndrome child, money available to care for the
child

4.

Trust for minortrustee can use income & principle for benefit of child before she reaches 21,
and to pay child principle when she reaches 21.

5.

Dynasty trustto pay income to children, then grandchildren, etc. Preserve family capital for
future generations. May violate RAP, unless its in a jurisdiction that allows for dynasty trusts.

6.

Discretionary trustat the discretion of trustee to spend for the benefit of the beneficiary
(health, welfare, etc.)

7.

Oral trustsoral declaration of a trust.

8.

Settlor both trustee & a beneficiaryIn order to be valid, there must be duties to someone
other than herself. Cannot be sole trustee & sole beneficiary.
Self-settled trusttrust set up for the benefit of the settlor (settlor & beneficiary are same
person)

23

TrustIntent
The grantor/settlor must manifest an intention to create a trust relationship.
If a trust is intended, and there is excess, then the excess results back to the settlor.
BLL: legal standardintent of the settlor (written or oral testimony) to make it into a trust. If it is a trust,
trustee must account for the money received. There must be an enforceable duty.
Jiminez v. Lee (1976)Facts: Daughter receives bonds for her education, dad commingled money in bank acct,
didnt keep records of how money was spent. She argues its a trust, he says its a custodial account/gift. Holding:
Its a trustthere was a clear purpose (education) for the $$; clear intent on part of the donors to make it into a trust,
dad has to account where the money went, if not he breached the trust. Father/trustee has enforceable duty to acct
for $$.

Precatory Language: Language where to donor intends a moral obligation unenforceable at law (not a
trust, but rather a gift is intended).
Hebrew University v. Nye #1 (1961)Facts: Ethel orally promises to give books to university, pres release initialed by
her confirms. Does nothing, dies. Estate passes books to someone else. Holding: no trust, Ethel didnt bring upon
herself/assume any enforceable duties, thus no trust came into being. BLL: Trust only comes into being when
trustee assumes enforceable duties.
Hebrew University v. Nye #2 1966)Facts: Hebrew Univ. got better lawyers, argued intervivos gift based on symbolic
delivery. She became a donor. If there is a gift, there must be delivery, lawyers argued constructive delivery, based
on the press release. Holding: Once she signed the memorandum (sufficient constructive delivery), that was the
constructive delivery of the books even though the books never came. Comments she made, I cant sell these, Im
giving them to Hebrew University.

Courts will be called upon to enforce a trust if trustee has breached his/her fiduciary duty.
Gift vs. Trust
If a property owner intends to make an outright gift inter vivos, but fails to make the transfer that is
required in order to do so, the gift intention will not be given effect by treating it as a declaration of
trust.
Gift causa moritsgive a gift because you are dying, but you get better, then gift can be
revoked.
TrustRes
THE TRUST PROPERTY MUST BE DEFINITE AND ASCERTAINABLE
Resulting trust: a trust that arises by operation of law when an express trust fails or makes an incomplete
disposition. Example: $1M for Davids JD education; David graduates, still have $100K left over, will result
back to the settlor; or David is killed, cant complete purpose, results back to settlor
Constructive trust: Remedy we use in order to provide equity; there must be a bad act to do constructive
trust (i.e. fraudTroy & Devine; murderMahoney). Property acquired through circumstances where
holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a
trustee. The constructive trustee is under a duty to convey the property to another on the ground that
retention of the property would be wrongful.
Uthank v. Rippstein (1964)Facts: In letter, statement to bind estate to send $200/month to woman. Holding: Nothing
definite & ascertainable from where we would take this money. Writing is a promise to make similar gifts in the future
unenforceable, promise to give cant be turned into a trust declaration. Notation wasnt a declaration of trust. No bad act,
no constructive trust. BLL: Estate comes into being when you dieneed a valid LWT. Cannot bind the estate
otherwise (cant bind it with anything other than a LWT)nothing right now was ascertainable.
Brainard v. Commissioner (1937)Facts: Man announces trust, said he was investing on behalf of wife & kids. Holding:
he could declare himself a trustee, have trust purpose and beneficiaries, but he had no res. When he recorded profits in
names of beneficiaries/profits were deposited into wife/kids accounts, then a trust came into being (definite,
ascertainable res). Expectancy cannot be the subject matter of a trust. Today its done through Clifford Trust/Grantor
Trust.

24

Speelman v. Pascal (1961)Facts: Pascal had rights to market play Pygmalion; wrote to woman to give her share of
profits. Gave her those shares, but no success yet. Holding: there was a possibility of profit which parties expected to
ripen into reality. Here there was a contract; Pascal owned rights to profits and could give something away.

25

Oral TrustsTOOLBAR
ON EXAMSif hes talking about a ranch, gas station, Tune-inlook for oral trust (but it was promised to
mewill only ask us about the land). LandStatute of Frauds appliesLOOK AT:
1.

Land = oral trust.

2.

Valid Instrumentask, is it valid? Look for deed or LWT

3.

AmbiguityLook at deed/LWTis there any ambiguity? If there is, you can bring in extrinsic
evidence to prove oral trust

4.

Non-SOF Jurisdiction (1677)C&C Evidence-anything affecting the deed must be in writing in SOF
jurisdiction; to prove oral trust, need clear & convincing evidence; can all be oral.

5.

SOF jurisdictiontrust must be in writing; 2 methods by which the writing needs to be effected: (1)
manifested & proved: if the writing manifests & proves the existence of an oral trust, then you have a
scenario whereby it can prove the oral trust against the writing (deed/LWT); Letter must be in interest;
anything written when alive, before the LWT/deed executed. Must be in interest. If you write the letter
after the LWT has been executed, then you no longer have an interest; must be executed while you still
own the land; (2) created test: demands that all the elements of the trust be spelled out, still have to be
an interest. Must be explicit.

6.

Constructive TrustIf you cant prove oral trust under #4 or #5whenever beneficiary of LWT is in a
confidential relationship w/testator, the possibility of unjust enrichment arises. (similar to undue
influence). If there is a confidential relationship, burden shifts to beneficiary, must rebut presumption of
UE by C&C evidence.

Hiebel v. Hiebel (1972)Facts: Woman transferred house to kids when ill, if she is okay in 5 yrs, they give house back. House (land),
valid deed, no ambiguity in instrument. Mom asks son for land back if he ever marries, he says okay. He marries, wont give back
land. She lived 5 yrs, he didnt kept oral promise. SOF jurisdiction, no writing (oral), mom forced to use constructive trust. Holding:
constructive trust on basis of oral agreement. Oral agreements are unenforceable under SOF, but bad act, unjust enrichment,
confidential relationship. Burden of proof shifted to son to rebut assumption of unjust enrichment, mother had clean hands. Ct held for
motherson couldnt rebut presumption of IU; hes held as constructive trustee, the title/deed for his mother (beneficiary)

Will SubstitutesGeneral. The major form of wealth transfer in America

IN ORDER TO BE VALID, SOMETHING MUST BE TRANSFERRED DURING LIFETIME; OTHERWISE THEY ARE
SUBSTITUTES FOR LWTS, AND HAVING NO FORMALITIES, WILL FAIL.
With no valid transfer/contract, there is no enforcement duty; property then passes through the estate.
New UPC 6-101(a)lists types of WS; something must given away during life-time (non-testamentary)
BLL: A valid LWT may not affect a valid WS; WS takes priority over a LWT.
New UPC 2-804 provides that divorce revokes the designation of the divorced spouse as beneficiary of life
ins policy unless divorce settlement has her remain beneficiary.
Wilhoit v. Peoples Life Ins. Co. (1955)Ct follows old rule. Facts: $5K life ins. policy; upon death of husband wife says
to keep $$ and pay on her death to brother. Brother predeceases, LWT leaves everything to Tom Owens; 1951 wife dies,
leaves money in ins policy to Robert Wilhoit. Who gets it? Holding: POD acct insufficient to create an interest during
lifetime if beneficiary predeceases. Since nothing passed during lifetime, must have testamentary properties, $$ goes to
Wilhoit. Father OBrien thinks this is old law and wrong.
Estate of Hillowitz (1968)current law, better law. Facts: partnership agreement funded w/life ins. policy; upon death of
partner, $$ would be paid to widow to buy out partnership. Does it satisfy requirement of being valid WS? Holding: Yes
partnership agreement is a valid contract executed during lifetime, therefore something was given away during lifetime.
People see need to transfer wealth beyond simple real estate.
Cook v. Equitable Life Ins Society (1981)Facts: 1953 life ins policy payable to Wife #1, divorce in 1965, remarries Wife
#2. In LWT, gives life ins $$ to wife #2 & son, dies in 1979. Who is beneficiary? Holding: Wife #1. Even though LWT
valid, a valid WS is not affected by a LWT unless the WS says that it will be. Discussion: Wife #2 can elect against the
will; can include ins. $$ as part of elective share (Box #2).
Franklin v. Anna Natl Bank (1986)Facts: man puts womans name on bank acct, then revokes it; man dies, woman
wants $$ in acct, claims to be survivor. Holding: Look at demonstrated intent of holder, woman put no $$ in acct, it was a
matter of convenience that her name was on it. Not her $$, no joint tenancy.
26

Revocable Trusts/Living Trusts

FIDUCIARY OBLIGATION DURING LIFETIME IS SUFFICIENT TO CREATE A VALID INTER VIVOS TRUST.
Farkas v. Williams (1955)Facts: Employer puts $$ aside for employee, retaining right to revoke,
didnt want to vest w/$$ so he would remain employee. Issue: If a trust comes into being where
settlor retains right to revoke & settlor = trustee, is there a valid WS? Holding: Something
transferred during lifetimeWilliams believed Farkas intended to presently give Williams an
interest in the property; disposition not testamentary & intended trust is valid. The thing that
passes during lifetime is the fiduciary obligations brought about when trust agreement signed.
Duty owedinvest reasonable.
In re Estrate & Trust of Pilafas (1992)AZ ct of appeal. Facts: Decedent executes valid LWT &
trust, states how it can be revoked. At death, cant find LWT, assumed lost/revoked (presumption of
revocation by physical act); cant find trust either. Issue: Whether revocation by physical act
through being lost applies to a WS. Holding: Nonot a way to revoke; can only revoke per ways
set forth in trust; cant be revoked w/o consent of settlor & all beneficiaries.
BLL: Law affecting LWTs dont always apply to WSs.
State Street Bank & Trust v. Reiser (1979)Facts: revocable IV trust, had power to amend/revoke,
got income during lifetime, could direct disposition of corpus & income, etc.; dies, creditors want
to be paid, can they take from WS? Holding: YESwhen he start trust, it was held as a matter of
convenience, may not be used to defeat claims of creditors.
BLL: Where a person places property in trust & reserves right to amend/revoke, creditors may go
after funds. Payments via ratable abatementeach beneficiary gives proportionally from what
each has received. Creditors must first exhaust probate estate (Box #1) first.
Pour-over Wills/Devices
During lifetime, inter vivos trust established or announced. At death, LWT names trust as
beneficiary. Pour testamentary devices into inter vivos devices.
Mixture of inter vivos arrangements with testamentary dispositions.
Can also do in reversename estate as beneficiary of life insurance policies.
Doctrine of independent significancedevice is out there and youre pouring into it
UPC 2-511code provision for pour over devices.
- Just because it is pliable doesnt mean its something that must have testamentary
formalities
- Revised 1990 UPC permits trust instrument to be executed after LWT. Can make
modifications, create trust after.
Clymer v. Mayo (1985)Facts: woman creates trust, 2 parts. Part A: Marital deduction
discretionary trust, husband has general inter vivos POA. Provided for him so he couldnt elect
against the LWT. Part B: Balance of property, bequests & payment to husband for life; upon his
death to nephews & nieces alive at her death (B-line). Trust terminates when each reaches 30,
assets divided between 2 schools. Divorces husband, dies. Will divorce revoke trust? Issue:
Divorce revokes LWT, will it also revoke a WS? Holding: Trust A: purpose gone, trust no longer
valid. Trust B: Statute states divorce revokes former spouses right to take under LWT, legislative
intent was to make divorce statute apply to trusts as well as LWT. Nephews & nieces takethey
are a class.
UPC New: Divorce revokes inter vivos trust provisions for former spouse.
Use of Revocable Trusts in Estate Planning
1. Property management by fiduciariespeople want to have someone manage their lives
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2. Keeping title clearmake property a trust asset so that it doesnt get confused as being
community property or separate property
3. Income & Gift taxeskeep control, pay taxes. Irrevocable trust = gift tax; revocable transfer =
estate taxes
4. Dealing with incompetencypeople who have disabled children; put $$ in trust so trustee and
guardian of child will take care of child after parent dies.

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Planning for incapacity

Personal representative in LWT doesnt have authority until the day you die.
Durable Power of Attorneyguardian appointed, so that if you are incapacitated, a named
individual steps into your shoes to do whatever you say that person can doconsolidate assets,
run business, etc.
Living willsan aspect of health care directive that permits the withdrawal of life support
systems because it would be extraordinary (disengage machine for 3 minutes, have to be put
back on. If you die, it isnt murder)
Durable Power of Attorney for Healthcareumbrella encompassing living will and DPA. If
DPA includes ability to make healthcare decisions, then its a healthcare directive.
Frazen v. Norwest Bank (1998)Facts: woman in nursing home, had DPA (brother), who wanted
$$ intrust fund to administer on her behalf. Tried to revoke trust, bank refused, said DPA must
specifically say you have power to revoke trust, which it didnt. Holding: Ct allowed for
revocation because statute upon which bank relied was enacted in 1995, DPA in 1992, cant be
applied retroactively.

Power of Appointment TOOLBAR

A POA PIGGYBACKS ON A VALID TRUST
1. Donorperson who establishes POA = settlor of trust
2. Doneeperson who exercises POA in favor of someone = trust beneficiary
3. Appointee/Objectperson to whom the appointment is made
4. Appointmentthe res
5. T/D (taker in default)person designated by donor to receive property under a POA if donee
fails to exercise the power.
6. General Powerwhen you may appoint to yourself, your creditors or your estate, or any one
of them
7. Special Poweryou cannot appoint to yourself, creditors or estate
a. Exclusiveyou can exclude or pick and choose
b. Non-exclusivecannot pick & choose; i.e. to Johns children equally
8. Inter vivoswhen donee can exercise during his lifetime (To Greg as he shall appoint
General IV POA)
9. Testamentarycan only exercise through LWT (to Ben for life & then as he shall appoint in
his LWT)
10. OERCOpen Ended Residuary Clause: No reference is made to the POA.
11. Relation backWhen donor gives to donee POA, relate back to the creation by the donor
when you reference creditors rights, RAP and anti-lapse

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POAGeneral
Lots of power w/General, less power w/Special
Examples:
$1M to Sarah for life, then to Wilma for care & welfare of PamGeneral testamentary POA
$1M to Ken as Ken shall appt among Kristines issuespecial exclusive inter vivos POA
$1M to Sarah, as she shall appt now or at her death among Kims siblingsspecial exclusive IV POA.
$1M to Larkin as she shall appoint during life among Elizabeths boyfriendsspecial exclusive IV
POA.
$1M to Yvette as she shall appt equally among Kims siblingsspecial, non-exclusive IV POA; same
as life interest w/vested remainder.
Irwin Union Bank & Trust v. Long (1974)Facts: couple divorces, hes ordered to pay alimony, was in
arrears, no assets. She wants principle of trust, where he has general IV POA. Can she get it? Holding:
NO. Even though he had ownership, it isnt his until he exercises the power. Discussion: Today she
would win based on public policy, he wouldnt be able to hide behind his non-appointment & defeat her
claim.
Order of ease for creditors ability to get at trust assets:
General inter vivos trust (easiest)
General testamentary
Specialcreditors of a donee will never be able to get at the trust money. Donee has very little power
over the trust.

Rule of Repugnancy
BLL: If a deed or LWT conveys an absolute title in fee simple, and an inconsistent clause in the
instrument attempting merely to limit that title or convey to the same person a limited title in the same
land will be disregarded.
Sterner v. Nelson (1982)Facts: Clause in LWT gives fee simple absolutely to wife, conditioned that any
property that remains goes to Gladys & her children. Wife dies, LWT gives her property to her 2nd
husband. Holding: original LWT gave wife fee simple, no POA intended. Precatory nature of intention
clause, absolutely with full power to make disposition of property.
Release of POA
Under giant umbrella of disclaimer (release & renunciation)
If donee is given a special or testamentary POA (if he can release during donors lifetime), or
renounce after donors death, it can only be done by statute. Donee must exercise at his death, or it
would defeat donors intention.
Every state has a statute, for tax reasons
Dont want a general POA, because if there is, it will be part of your estate.
Under CL, no possible way to release or renounce a testamentary POA.
Example: General testamentary POA, taker in default are As children. As children have a future
interestvested interest, subject to defeasance
Seidel v. Werner (1975)Facts: man and woman divorce, he says he will take care of their kids,
including making LWT where he will exercise general testamentary POA in favor of their children.
Marries new wife, executes valid LWT, exercises POA in favor of her, dies. Kids want agreement
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enforced (it was a release), new wife wants POA to be effective, doesnt want to take election.
Holding: Agreement not a relase, didnt say I release. Agreement was contractual right on their
behalf, and kids can seek restitution from estate, but can only take from general estate, not
appointment because it belonged to the donor & to whomever donee gives it. Never really belonged
to their father. BLL: A promise to do something in the future isnt sufficient as a release.

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OERC TOOLBOX
1. NY (minority rule)an OERC exercises BOTH a general and special POA, if the appointee is the
object of the power (special). It is an ineffective exercise (special) if it is the wrong person named in
OERC and is administered to an implied trust.
2. Majority rulean OERC doesnt exercise any POA
3. New UPC 2-608An OERC only exercises a general POA when there is no taker in default.
If there is a conflict of law, apply the law of the place where the appointment is.
Beals v. State Street Bank & Trust (1975)Facts: Man dies, leaves LWT, income paying to wife for life,
afterward income to 4 daughters (special POA). Wife dies w/OERC. Holding: Law in MAOERC will
exercise a general POA, not a special POA. She thought she had a general POA, so they applied general
POA rule.
Bad Exercise of POA
Non-exercise of general POA: Results back to the estate of the donor
Ineffective exercise of general POA: Capture appliesinstead of resulting back to the donor, the res
is captured in the estate of the donee (doesnt result back to donor, even if the donor has named a
taker in default)
Non-exercise of special POA: Implied trust, look for taker in default, then to permissible appointees.
If permissible appointees dont survive donee, it goes to their estate. If no permissible appointees (i.e.
to Kims issue but Kim never had children), then it results back to donors estate
Ineffective exercise of special POA: Implied trust (as if there was no exercise), look to taker in default,
then to permissible appointees. If permissible appointees dont survive donee, it goes to their estate.
If no permissible appointees (i.e. to Kims issue but Kim never had children), then it results back to
donors estate.
Cant use anti-lapse for special POA if it would benefit people who are not permissible appointees.
You may not benefit a non-object of the power if you have been given a special POA.
Example: Ray exercises LWT, becomes effective when he died, gave Kim $1M for life, then as she shall appoint.
Kim has general testamentary POA. Kim exercises in favor of Yvette, who predeceases Kim but is survived by
issue. When Kim dies, anti-lapse applies, issue of Yvette take exercise of POA.
Example: Ray, inter vivos trust to Renee, then as Renee shall appt among Rays kids (Special Exclusive test POA).
When Renee dies, the appt becomes exercised, in favor of all Rays children. One predeceases Renee, no issue, one
predeceases w/issue, 3 survive. Four will take.
Loring v. Marshall (1985)Holding: when special POA isnt exercised, it goes in equal shares to the members of
the class to whom the property could have been appointed.

Class Gift TOOLBAR

Class: A group capable of increase & decrease on its own (i.e. Bonnies children)
Two rules for Class Gifts
Increase
Administrative conveniencea class will close whenever a member can demand his/her share.
Jessewhen there is no person in the class meeting the description of the class at the death of the testator,
and one comes about afterwards, you wait until the death of the life tenant and then do the division to the
children or the issue of the deceased children. Not inconvenient to do so. Ray says class closes with birth
of first child, that kid gets it all.
Example: Ray dies w/valid LWT--$1M to children of Matt. Matt has one child, that child gets it all
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Example: $1M to each of Bonnies childreninconvenient to wait & see how many kids Bonnie has.
Gift voided, too difficult to set aside a sum to cover all possible children.
DecreaseIf the class decreases, the class is closed
Lapse & VestingDeaths in area 1,2,3can use vesting & anti lapse unless there is a requirement of
survivorship.
Example: Ray leaves LWT--$1M for his children. At his death, 3 kids survive. Two predeceased w/issue.
5 shares.
Example: $1M to be paid when youngest turns 21. Two die, survived by issue. One dies w/issue in Area
3. 4 survive to youngests 21st birthday. $1M is divided into 7 shares.
Dewire v. Haveles (1989)Holding: convenient to continue to make distribution. Intent of donor.

Interest/Vesting possibilities
Cant have anti-lapse if you have a condition of survivorship, and you cant have vesting if you have a
condition.
Vestingimmediate, fixed right of present or future enjoyment.
Contingent--$1M to David if he survives to 40
Vesting subject to defeasanceIf Sara survives, to Sarah. If not, then to Ken. Ken has interest subject
to defeasance.
Gifts for Children or Issue
Childrenonly immediate offspring of parent; doesnt include grandchildren. No anti-lapse, no vesting.
The limit on convenience is the settlors use of conditions, such as survivorship.
Minary v. Citizens Fidelity Bank & Trust (1967)Issue: May an heir be foisted/forced on unsuspecting
3rd party? Holding: You can exclude non-marital & adopted children in the language of the trust;
otherwise, no. But if you are having sex with someone youve adopted, youve gone beyond the scope of
adoption, you dont have sex with your children, and adoption is voidviolative of public policy.
Gifts to Heirs
Estate of Woodworth (1993)CL: Heirs are decided at date of death of beneficiary (Area 3). Statute:
Those who fit the class description at the time the legacy is to take effect (C-line)
Doctrine of Worthier Title
Raytrust to David for life, then to my heirs. Doesnt go to Rays heirs, it goes to his estateremainder interest is
with Ray.
Rule Against Perpetuities
Standing at the creation of the interest, is there any possibility that an interest will not vest within a life-in-being
+ 21 years?
1.

CreationLWT, testamentary trust, revocable IV trust, special test POA = B-line; irrevocable IV trust = A-line.
Doesnt commence until you can no longer give it up.

2.

Vestingconferring property upon a person, to give an immediate, fixed right of present or future enjoyment; a
legal share, not subject to the happening of a condition precedent. To Adam for life, and then to his issue.
Adams issue have a vested interest immediately, no condition to be met.

3.

Life-in-beingall those human beings in existence or in gestation at creation of future interest, whether or not
person has an interest in the estate. Dont use status words (wife, Pope) or events (GU student becomes SC
Justice).
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4.

Measuring Lifethose lives upon whose death or occurrence of an event vesting occurs. Look to C-line: when
does vesting occur? Who brings it about?

5.

Possibilitycould a measuring life come into being that isnt a life-in-being? If so, violates RAP.

6.

Savings Clauses
a. Cy Presthe court reforms a trust that violates RAP so as to carry out the testators intent w/in the
perpetuities period.
b. Wait & See/Second lookstanding at creation it appears there is the possibility to violate RAP. Allow for
interest to continue as if it were valid, wait & see if it in fact violates RAP. 2nd lookjust like W&S but
applicable to POAs
c. USRAPinterests valid if they are otherwise valid under RAP or all interests vest w/in 90 yrs of creation; 90
yr w&s.

You want co-terminality between ML and LIB to ensure no RAP violation.

Drop Kickwhen a LIB can create a measuring life that is not a LIB, that can live 21 yrs past death of all LIBs.

RAP Issues & Examples:

Fertile octogenarianwoman in Old Testament. Everything possible to God, so any woman can have a child at
any time. In NY, presumed woman cant have child past age 55.
Co-terminalityMLs = LIB.
Trust that are revocable create interest at death (B-line); cannot have more children. Cannot violate RAP if you
start at the B-line. Can violate RAP if you start at the A-line.
Example 1: Ray in irrevocable trust, provides for self at life, and then his children for life. At death of last
child, divided among grandchildren last surviving. Creation = A-line; LIB=Ray, 2 kids. Trust ends/vesting
occurs at death of last child =C-line. Children = Measuring lives (ML) Standing at the creation of interest (Aline), is there any possibility that ML LIB? Ray could have another child (ML) that is not a LIB, that could
live > 21 yrs past all LIBs? YES, violates RAP.
Can say trust will end at the death of my last child now in existence Creates co-terminality.
Can be revocable trust, then hes dead at creation of interest (B-line), cant have any more kids, no violation of
RAP.
Example 2: Ray writes valid LWT, provides life estate for Renee (age 65), then for Renees children who
survive. At death of Renees last child, to be provided among her grandchildren. Grandchildren must survive.
Creation = B-line; Vesting pt = death of Renees last child (C-line); ML = Renees children. If Renee cant have
any more children, there are no measuring lives that are not LIB. If there is no requirement of survivorship,
vesting occurs immediately (child is vested immediately).
Example 3: Ray, valid LWT, dies, gives $1M to Kim for life, then as she shall appt (Gen Test POA). Kim
exercises, provides for David for life, then at his death to his heirs at law. Relate back to donor (Ray). David is
alive when Kim dies (life in being at Kims death). But he came about after Ray created POA. If we use
relation back to when Ray died (donor), Ray isnt a life in being, and it would be possible that David could live
longer than 21 yrs than any LIB. Violates RAP.
RAPRelation Back Doctrine
Relation back is applied when donee has been given anything other than a general POA (IV or Test). Look at type
of trust (irrevocable = A-line; revocable = B-line)
Never use relation back if it is a general inter vivos POA
When a donor gave to the donee a special testamentary POA and she exercised it in favor of her issue, donor
allowed her to exercise very little control. When we ask if it violated the RAP, it must be related back to the creation
of the donor, to see if the appointees are living longer than 21 yrs past death of donor (B-line).
If it was a special non-exclusive power, then you are concerned with the B-line.
If you cant give it to the person to whom the appointment was made, then its an ineffective appointment

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Dickerson v. United Natl Bank (1980)Holding: The unborn widow. Not yet identified, can come into
being after death of donor, a ML that can outlives all LIBs by >21 yrs, violating RAP.
PLANNING FOR INCAPACITY???

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