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Wills, Trusts, and Estates

Class Notes

CHAPTER 1 INTRODUCTION TO ESTATE PLANNING

Class Notes
 Teaches multi-jurisdictional, not just Florida law
 Office hours are early and late. Office is at the main Regions bank.
 Use email in the Syl as this is his personal email
 CALI exercises have to be 85% or better
 No copies of finals on reserve
 Two days with no class – September 6th and September 11th

Estates
 A matter of probate to transfer property from Party A to Party B
 You can dye with a Will, Trust, Government Plan (they get 50%)

Section A: The Power to Transmit Property at Death: Its Justification and Limitations
1. The Right to Inherit and the Right to Convey
a. Hodel v. Irving, 481 U.S. 704 (1987)
i. Issue: whether a person has a right to transmit their property at death?
ii. Historical Note: Until the 1980s, there was no natural or constitutional right to convey or inherit property at
death. Convey: transfer property to another. Inherit: access to decedent’s property.
1. Irving Trust Co. v. Day.
iii. Facts: Indian lands were parceled and allotted to members of the tribes. The lands were held in public trust.
The allottees were granted the ability to devise their property by inheritance and post-1910 by will. The
allotments were severely fractioned to the point where the use of land was no longer economically
beneficial.
1. § 207 of the Indian Land Consolidation Act held that interests that met the following two
requirements would be escheated to the Tribe: (1) interest is less than 2% of the acreage, and (2)
interest earned to the owner is less than $100. Devise and inheritance was essentially eliminated
for these parcels of land.
2. Plaintiffs claim that § 207 is a taking under the 5th Amendment i.e. a right of decedent to transmit
the property and as inheritors, they have standing to protect the interest of the decedent.
iv. A taking is present in this case because the government does not have the right to transmit property at death
is a valuable property right.
v. The right to transmit property is an identifiable right and, if taken away, compensation must be paid
vi. This case also started the groundwork for transferring the property to other people – this started the ball
rolling

2. The Dead Hand


a. 10.1 Restatement (Third) of Property: Wills and Other Donative Transfers
i. When a Will document goes through Probate, it becomes an estate and public record
ii. Dying intestate means without a Will (Government Plan)
iii. Probate is the legal process that transfers property from one person to another person
iv. The classification of assets states that there is Probatable property and non-probatable property
v. In Florida, non-probatable property includes the primary domicile the decedent lived in and the primary
vehicle (a vehicle is personal property because it is mobile liability)
vi. Both are required to be registered to the state
vii. These items may transfer to your heirs (as listed on the probate petition) but not through probate court
viii. The donor’s intention is given effect to the maximum extent allowed by law.
1. restricted if the donor attempts to make a disposition or achieve a purpose that is prohibited or
restricted by an overriding rule of law
2. no general authority is granted to a judge to question the wisdom, fairness, or reasonableness of the
donor’s decisions

b. Shapira v. United National Bank, 315 NE2d 825 (Ohio 1974)


i. P is the son of decedent. In decedent’s will, P’s inheritance was conditioned on him marrying a Jewish girl
born of Jewish parents within seven years after decedent’s death. P sues the estate for his inheritance
claiming that the condition on his inheritance is unconstitutional, contrary to public policy and
unenforceable because of its unreasonableness.
ii. Issue: Whether the condition on the inheritance is enforceable. Yes, the condition is enforceable.
iii. The Court gives three reasons why the condition can be enforced
1. The condition is not unconstitutional because the court is not being asked to enforce the testator’s
restriction upon his son’s inheritance; instead, the testator is conditioning an inheritance. The right
to receive property is a creation of law and not a constitutional right.
a. Fourteenth amendment discussion: the state by judicial enforcement cannot uphold
something that is not constitutional
i. Shelley v. Kramer
1. Problem with distinguishing:
a. Behavior in this case is public and discriminated against
persons that have a history of discrimination (prohibited in the
14th amendment)
b. Freedom of religion is a constitutionally protected right – decedent has a right to freedom
of religion
c. Partial restraint is not impermissible because the son is not being enjoined from marrying
a non-Jewish woman.
2. The condition is not contrary to public policy because it is a partial restrain on marriage. Partial
restraints may be upheld by the court when they are reasonable. In this case, a father conditioning
the release of the inheritance to his son on the person the son marries is reasonable. It is not a
restraint on religious practice, nor is the son being held in contempt for not fulfilling the condition.
The court is not being asked to force the son to marry a particular person.
a. Violation of Daniel’s right to freedom of religion
3. The condition is not unreasonable because there is plenty of opportunity for P to find a Jewish girl
if he wishes to obtain the inheritance. In contrast to the case of Maddox v. Maddox, in which there
were only 5 or 6 unmarried men in the area in 1854, P lives with modern conveniences including
air travel, which will allow him to find a wife within seven years – thus, the pressure is not strong.
4. Other argument:
a. attacking the will on the ground that it is unenforceable on the grounds that it is
ambiguous
i. Who is Jewish?? Examination of Jewish religious doctrine which the courts are
not to interpret.
b. Freedom NOT to marry?
5. In terrorem condition: no gifts over to anyone else, just the condition i.e. cautionary, advisory, did
not mean what it appeared to mean. If testator would actually mean the condition, there would be a
gift over to another heir.
iv. Restatement 2d of Property: Donative Transfers provides that a restraint to induce a person to marry within
a religious faith is valid if the restraint does not unreasonable limit the transferee’s opportunity to marry.
c. Problem of changed circumstances
i. The dead hand cannot adjust to changed circumstances
d. A will or trust provision is ordinarily invalid if it is intended or tends to encourage disruption of a family relationship
i.e. separation or divorce.
i. Unless the dominant motive of the testator is to provide support in the event of separation or divorce
ii. A name change will not be upheld if it disturbs family relationships
e. Destruction of property at death
i. Should a testator be permitted to order the destruction of property at death when the main economic loss is
not visited upon the testator but on others?
1. i.e right to dispose v. right to inherit
ii. Person does not have to bear the economic cost after death – generally, these conditions are not upheld.
1. Who has standing to contest? Anyone that has pecuniary interest in the gift – those entitled to the
revenue from the notes i.e. residuary takers of the estate

Section B. Transfer of the Decedent’s Estates

Probate and Non-probatable Property


 The process of probate can last anywhere from 6 months to four years
 Probate is simply transferring property from one party to another property
 The other party can include non-family and legal entities or pets (in Florida)
 Probate property can transfer through the probate process through a decedent’s will document or through intestate (no
form of will document)
 A summary probate is short in duration, a filing of paperwork with the probate court, and a total of under $75K
 Summary probate does not include court
 A full probate has full hearings in the court, duration, and over $75K
 The type of probate is dependent on the amount of the assets
 An ancillary probate is a probate in another state and have to be closed out before the probate in the state of domicile
can be closed out
 If the amounts are higher than the statutory amounts for summary judgment in those states, they have to have a full
probate
 Probate is done when the curt signs off on it and not any earlier – so you need to keep your file documented and your
clients informed
 You are permitted to probate under your domicile state or where you may die – the determination is what is most
favorable to the people you are representing (zealous representation)

Non-probatable property
 Can pass under an instrument, other than by a will, or intestate
 Joint-tenancy: can be non-probatable property (even if it looks like probatable property)
 Example - $1MM in money market with two persons on it. If one dies, the other party gets all rights to the undivided
whole
 The concept of joint tenancy is that you jointly own the undivided whole of the property
 For tax purposes, one half of the value of the account would be assessed for taxes from the estate
 In effect, half the value goes to the estate, but for taxation purposes only
 Whatever the value of anything is, it is triggered to the death of the decedent (including for taxes and interest)
 The Federal Tax Exemption – if you go over a specified amount, you are taxes at 35% to 55%
 Florida has no state estate tax, others tack on to the Federal estate tax

Life Insurance Policies


 If the life insurance is to a designated person, it avoids probate
 Tax is paid on life insurance during purchase
 The designated beneficiary receives the value of the insurance tax free

IRAs
 Contracts with Payable on Death Provisions
 IRAs, 401ks, pension plans
 Legally married spouses (and in some states for partners), the first lien beneficiary is the spouse
 The only way you cannot have your legal spouse not to be the beneficiary, in Florida, you must file a form with their
signature approving this

Interests in Trusts
 There are about 35 kinds of trusts out there
 Benefits of a trust is minimization of taxes and to avoid probate
 If it is a contract payable on death, the decedent can name a person in the trust as the recipient
 If you are single, and don’t do the above, the trust enters the estate and becomes subject to probate

1. Probate and Nonprobate Property


a. Nonprobate property is property passing under an instrument other than a will.
i. Joint tenancy property, both real and personal. Decedent’s interest extinguishes at death; survivor
owns all interest.
ii. Life Insurance. Paid to the beneficiary at the receipt of a death certificate.
iii. Contracts with payable-on-death provisions. Distribution of property under contract at decedent’s
death i.e. pension plans, tax-deferred investment plans, bank account (with payable-on-death
beneficiary), etc.
iv. Interests in trust. The trustee holds the property for the benefit of the named beneficiaries and such
property is distributed in accordance with the terms of the trust.
1. Revocable or Irrevocable
2. If the decedent has a testamentary power of appointment over assets in the trust, the decedent’s
will must be admitted to probate, but the trust assets are distributed directly by the trustee to
the beneficiaries named in the will and do not go to probate.
b. Claims of Creditors to nonprobate items
i. Regulated by state statutes
ii. Insurance proceeds and joint tenancy are often free of decendent’s creditors’ claims
iii. A mortgage, on the other hand, is a claim against the mortgagor and the property – so, it survives the
transfer of ownership to the surviving spouse.
2. Administration of Probate Estates
a. History and Terminology
i. If probate is necessary
1. Appoint a representative
a. a representative named by the will is called an EXECUTOR (or personal
representative)
b. want to list numerous persons are personal representatives (and suggest this to your
client)
c. if there is one person listed, and they are to available, the court will appoint the person
d. also want to suggest using a professional PR through a company who is licensed,
bonded, and whose services are tax deductible
e. Never appoint yourself as a PR for a client (unless you work for a company and
it’s your job to do so)
f. otherwise, an ADMINISTRATOR is appointed
i. Statutory list of persons given preference:
1. spouse, children, parents, siblings, creditors
2. Duties of a representative
a. To inventory and collect the assets of the decedent
b. To manage the assets during administration
i. Including keeping the value of the assets i.e. running a business
ii. Also filing a notice of creditors to the court telling the creditors that the
decedent is deceased
c. To receive and pay the claims of creditors and tax collectors
i. Nonclaim Statutes: Creditors must file claims within the statutorily-requested
period or such claims are barred
1. The statutes toll either when a time elapses after the probate has
commenced (2 to 6 months), or
a. 4 months under the UPC
b. notice is required for short-term statutes
ii. OR when a time elapses after the decedent’s death (1 to 5 years)
d. To clear any titles to cars, real estate, or other assets; and
e. To distribute the remaining assets to those entitled.
3. The personal representatives are appointed by, under the control of, and accountable to the
probate court.
a. A fiduciary bond is required from the administrator, but it can be waived by the will.
b. Probate Procedure
i. Opening probate
1. Functions
a. provides evidence of transfer of title to the new owners by a probated will or decree
of intestate succession
b. protects creditors by requiring payment of debts
c. distributes the decedent’s property to those intended after the creditors are paid
2. Primary or domiciliary jurisdiction/ancillary jurisdiction – subjecting all property owned by
decedent to the probate process
a. Probate must be filed in the county where the death occurred
3. Letters testamentary to executor; letters of administration to administrator
a. Authorize the person to act on behalf of the estate (i.e. a license)
4. Types of probate
a. Informal Probate
i. No notice to heirs, creditors, beneficiaries, is given prior to the start of
probate
ii. Representative petitions for appointment
iii. Notice is then mailed within 30 days after appointment of heirs apparent,
including those not mentioned in the will
b. Formal Probate
i. File petition, request formal probate
ii. Notice is given before the start of probate and a hearing takes place after
which the court gives a formal order appointing a representative
5. UPC: No proceeding may be initiated more than three years from the date of death. Intestacy
is conclusive if the will is not probated.
a. Contrast with the CL rule that allows a will to be probated any time after death
6. Time for contest.
a. Any contentions to the will depend on jurisdictional statutes.
b. Heirs can contest the appointment of a representative by requesting a hearing with the
court – this changes probate from informal to formal.
ii. Supervising the representative’s actions
1. Supervision by the court
2. In some states, the representative has tacit power from the court to administer the estate if heirs
are released from fiduciary
3. UPC
a. Supervised administration
i. May be requested at any time
b. Unsupervised administration
4. Administration
a. Formal
i. A hearing will determine whether supervision is necessary
ii. Representative is subject to supervision every step of the way
1. Court approval is necessary for sales, distributions, etc. of the estate
property in order to protect heirs’ interests
b. Informal
i. Representative has all the rights of a trustee in regards to the estate (do all
the decedent could do)
1. done without court supervision
iii. Closing the estate
1. Judicial approval of the personal representative’s action is required to relieve the representative
from liability, unless a statute of limitations runs upon a cause of action against the
representative.
2. Representative is not discharged from fiduciary duties until the court grants discharge.
3. Options
a. Formal
i. Notice is given, hearing set, evidence taken
ii. Court issues an order based on the information received
1. close the estate and relieve representative of liability
b. Informal;
i. Notice
ii. Sign of release and consent to informal closing
iii. Representative is discharged of all liability at the end of one year.
c. No closing
i. Five-year period elapses before the representative is discharged
c. Is Probate Necessary?
i. No, it can be avoided by
1. property transferred inter vivos into a joint tenancy
2. or a revocable or irrevocable trust
3. or, executes a contract providing for distribution of contract assets to named beneficiaries on
the owner’s death.
ii. Other ways to avoid probate
1. Establishment of the transferee’s title is not always necessary for many items of personal
property, such as furniture or personal property
a. Except for items for which ownership is evidenced by a document
i. i.e. automobiles, stocks
2. State Rules
a. Small Estate Proceeding: Close relatives may obtain possession of the decedent’s
personal property by presenting an affidavit to the holder of the property if the estate
does not exceed the figure (depending on the state, between $5,000 and $100,000)
b. Filling a will for probate as a title document, with no formal administration to follow
c. Statutes may permit collection of small bank account or wage claims or transfer of an
automobile certificate of title to the decedents’ upon affidavit.
d. Universal Succession
i. Present in Europe and Louisiana
ii. The heirs or the residuary devisees succeed to the title of all of the decedent’s property, there is no
personal representative appointed by a court
iii. UPC – authorizes universal succession as an alternative to probate administration
1. heirs may petition the court
e. Problems page 38
i. Aaron & Martha Green
1. Establish which items are probate/non probate
a. The furniture is likely to be non probate because Martha does not need a letter
testamentary to obtain the furniture.
b. Savings account in P.O.D.
c. Car is done by affidavit procedure, transferable to wife
2. Will does not have to be submitted to probate
3. Bills – Martha should pay or the creditors will request a formal opening of the estate
ii. Surviving Spouse gets 1/2, Children get 1/4 interest each
1. Small estate affidavit will not work because she is not entitled to all the property
2. If all the parties signed an affidavit, the property would be released
3. As a practical matter, the estate will not be probated
4. If the children are minors at the time of testator’s death, the children would technically not
receive the property. However, the children would be entitled to sue the mother when they
reach majority. (Support of the children during their minority will probably eat up the small
portion of the estate.)
iii. Real property.
1. Probate. Title clearing is necessary. Documentary evidence of title for the property. When
Martha wants to sell the property, she will be unable to do so until the deed is in her name.
Personal representative should be appointed, personal representative’s deed executed, the
property deed is registered at the county office.
2. Probate is not always necessary for property that has documentary evidence of title – permits a
new document of title to be issued in the name of the surviving spouse or to the successor
(generally the spouse).
iv. A will is not necessary in this case (scenario 1).
1. What if the wife dies first? Or what if Martha does survive Aaron, but she is incompetent?
a. Name Martha as personal representative and another in her place
b. Problem of the children: what if one of his children dies before Aaron and has minor
children? What is the succession line?
2. Asset situation can change dramatically overnight i.e. lottery, oil well, inheritance, etc.
Something more elaborate than intestacy statutes might be required
3. it is almost never good advice to tell people that they do not need a will
a. a will becomes essential when married
3. An Estate Planning Project
a. The Client’s Letter and Its Enclosures
i. Objectives:
1. avoid probate
2. avoid inheritance taxes
ii. Problem with H’s will
1. Step-children are not entitled to inheritance unless specifically defined
a. Michael has an illegitimate child
2. Personal representatives/guardians for children – no other alternative if the one appointed is
unwilling or unable to take charge
3. House – what is the most prudent means of utilizing the property?
a. Sell, rent, mortgage, lease, etc.
4. H tries to expand the powers as broadly as possible; however, he has not gone far enough.
5. Payment of just debts
a. What about debts that are barred by statute? Has the language of the will superseded
the language of the nonclaim statute? Testators can overcome the protection of any
statute with a provision in the will.
b. Apportionment of estate taxes. This clause may have made it so that estate taxes must
be paid by the estate, the burden of the tax is apportioned among those that receive
assets in the estate - the residuary taker has the duty in a clause with such wording.
6. Minor children
a. No provision to establish a trust to hold the assets of the children for the benefit of the
children under their minority.
b. What if H & W do not die simultaneously? However, they die within days. Probate
estate to get assets to W, then W’s estate has to be probated. There should be a
provision that gives the children the estate if the deaths of H & W are within a short
period of time.
iii. Most of the estate passes outside of the will. Beneficiaries are named under a contract designation or
life insurance or joint ownership.
4. Professional Responsibility
a. Simpson v. Calivas
i. Issue: duty to intended beneficiaries
ii. Probate court is asked to interpret “homestead.” Attorney’s notes say that Robert Junior would receive
the 100 acres except for the home and the surrounding area, which was to be left to Roberta. If the
court decides that a term is ambiguous, it takes into account the surrounding circumstances. The court
took evidence that Robert Sr. and Roberta had a close relationship and that’s why homestead must have
meant the 100 acres.
iii. Robert purchases Roberta’s life estate for $400,000.
iv. Robert files a lawsuit against the attorney who drafted the will.
1. Trial Court
a. the attorney owes no duty to the beneficiary of a will
b. even if there was a duty, collateral estoppel applies because the probate court already
interpreted homestead
2. Supreme Court
a. Recovery under contract law
i. General contract rule: only parties to the contract recover if the contract is
breached
ii. Third party beneficiaries
1. Historically, beneficiaries of wills are not able to recover under 3d
party beneficiaries theory
iii. New rule: Intended beneficiaries have a cause in contract OR in tort for the
attorney’s failure to implement the testator’s wishers
b. Collateral Estoppel
i. Probate court decision: the word “homestead” in the will meant that whole
property (100 acres)
ii. CE only applies if that holding was required below
1. Probable Intent. The interpretation refers to probable intent of
testator (evidence that contradicts the wording of the will is not
admissible)
a. probate court does not seek to find the testator’s actual
intent
2. Actual Intent. The issue in the malpractice question.
a. The notes of the attorney are necessary in the action and
therefore admissible
iii. CE: if when the finding of the first proceeding was essential to the finding of
the first court: actual intent was not essential to the first proceeding (not at
issue).
v. Lawyer mistakes are being remedied by the courts fixing the mistake. There is unjust enrichment in the
malpractice action because the undeserving recipient does not lose out, but rather the attorney’s
malpractice insurance picks up the tab.
b. Hotz v. Minyard
i. First will
1. changes the will to give Tommy the dealership and the underlying real estate
2. father asks the attorney not to disclose the existence of the second will
ii. Judy talks to the attorney, who is also her attorney and her accountant
1. the attorney shows Judy the first will instead of the second, explains it to her, and she leaves
the office believing that she has a remainder interest in the underlying real estate of the
Greenville dealership.
iii. Issue: Does Dobson owe Judy a duty in regard to representations in regards to the father’s will?
1. while a fiduciary duty may have been owed to the father, Judy was not owed a duty
2. On appeal, the attorney owed a fiduciary duty to Judy because he was her attorney as well.
a. Obligation to tell Judy that the father had executed a second will was present
b. If Judy had not been a client to the firm, the attorney would not have owed her a
fiduciary duty
i. Attorney’s obligation should be not to engage in facilitating the deceit of a
client.
iv. Moral of the story: do not be a part to a deception that a client may want to involve you in. RPC 1.6
confidentiality obligation is limited, must be truthful in representations where a fraud could result.

CHAPTER 2 INTESTACY: AN ESTATE PLAN BY DEFAULT

Section A. The Basic Scheme


1. Introduction
a. Operates in the following cases:
i. The law of the state where the person was domiciled at death governs the disposition of personal property
ii. The state where the decedent’s real property is located governs that disposition
iii. Person dies intestate, OR
iv. Partial intestacy: the will does not dispose of all of the person’s property
1. poorly drafted will (without an “all the rest and residue to…”
b. Terminology
i. Heir – taker of an estate of a person who dies without a will or partially intestate.
ii. Heir apparent – those persons who will receive the decedent’s property upon death (a living person does not
have an heir)
iii. Devisee – taker of an estate through a will
2. Uniform Probate Code (1990) – MUST KNOW FOR THE EXAM (product of the Uniform Laws Commission)
a. Does not cover life insurance policies, contract rights, etc. The nonprobate assets are not included in the UPC.
b. § 2-101 Intestate Estate
i. (a) Any part of decedent’s estate not effectively disposed of by will passes by intestate succession to the
decedent’s heirs, except as modified by decedent’s will
ii. (b) Decedent may exclude or limit the right of an individual or class to succeed to property of the decedent
passing by intestate succession. If that individual or a member of that class survives the decedent, the share
of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that
individual to each member of that class had disclaimed his intestate estate.
c. § 2-102 Share of Spouse
i. The intestate share of a decedent’s surviving spouse is:
1. the entire intestate estate if
a. no descendent or parent of the decedent survives the decedent; or
b. all of the decedent’s surviving descendants are also descendants of the surviving spouse
and there is no other descendant of the surviving spouse who survives the decedent
2. the first [$200,000], plus three-fourths of any balance of the intestate estate, if no descendant of the
decedent survives the decedent, but a parent of the decedent survives the decedent;
3. the first [$150,000], plus one-half of any balance of the intestate estate, if all of the decedent’s
surviving descendants are also descendants of the surviving spouse and the surviving spouse has
one or more surviving descendant who are not descendants of the decedent;
4. the first [$100,000], plus one-half of any balance of the intestate estate, if one or more of the
decedent’s surviving descendants are not descendants of the surviving spouse.
d. § 2-103 Share of Heirs Other Than Surviving Spouse
i. Any part of the intestate estate not passing to the decedent’s surviving spouse under § 2-102, or the entire
intestate estate if there is no surviving spouse, passes in the following order to the individuals designated
below who survive the decedent:
1. to the decedent’s descendant by representation;
2. to the decedent’s parents equally if both survive, or to the surviving parent;
3. to the descendants of the decedent’s parents or either of them by representation;
4. to the decedent’s grandparents or descendants of grandparents, divided equally between the
paternal and maternal sides of the family (and divided equally between grandmother and
grandfather, if both alive); if the grandparents are not alive, the estate passes to the descendants of
decedent’s grandparents (taking by representation).
e. § 2-104 No Taker
i. If there is no taker, the intestate estate passes to the state
3. Share of the Surviving Spouse
a. Elective share
i. Taken against the will i.e. the surviving spouse can choose to claim against the estate of the deceased spouse
without regard to the will (protection of the spouse)
1. Sliding scale – depends on the length of time that the couple has been married
b. Domestic Partners and Intestate Succession
i. Under traditional law, domestic partners are not entitled to the intestate estate
ii. Current shift in the law grant status to ‘committed partners”
4. Simultaneous Death
a. Janus v. Tarasewicz
i. The beneficiary has to survive the decedent in order to take. However, it is difficult at times to know
whether the heir or beneficiary actually survived the decedent.
ii. A couple ingests cyanide-laced Tylenol at the same time. Both collapse and are medically treated. There is
a $100,000 insurance policy of the husband making the wife a beneficiary. The trial court finds that there
was sufficient evidence that the wife survived the husband. The life insurance was passed through wife’s
estate and thus, to her family. The appeals court affirms.
iii. The UPC dealing with heir succession requires the heir to survive by 5 days and further, those who take
under a decedent’s estate by will, trust or other, must survive by five days. (uniform simultaneous death
statute)
5. Shares of Descendants
a. After the spouse’s share is set aside, children and issue of deceased children take the remainder of the property to the
exclusion of everyone else
i. All states provide that a deceased child’s descendents represent the dead child and divide the child’s share
among themselves
ii. Sons-in-law and daughters-in-law are excluded as intestate successors
b. Systems of distribution
i. English per stirpes (“by the stocks”)
1. to divide the property into as many shares as there are living children of the designated person and
deceased children who have descendants living (first generation after the decedent)
a. the children of each descendant represent their deceased parent and are moved into their
parent’s position beginning at the first generation below the designated person i.e. the
fraction goes into the decedent child’s estate and is distributed among the child’s children
in equal shares
2. Each line of descendants is treated equally
ii. Modern per stirpes or per capita with representation
1. Two steps
a. If any children survived the decedent, the distribution is identical to that under English per
stirpes
b. If no children survive the decedent, the estate is divided equally (per capita) at the first
generation in which there are living takers, which is usually the generation of the
decedent’s grandchildren
i. The division then proceeds as the English per stirpes
2. Each line beginning at the closest living generation is treated equally
iii. Per capita at each generation (1990 UPC § 2-106(c))
1. Two steps
a. The initial division of shares is made at the level where one or more descendants are alive,
b. but the shares of deceased persons on that level are treated as one pot and are dropped
down and divided equally among the representatives on the next generational level
2. Treats each taker at each generation equally with the other takers at that generation
c. NOTE: Negative Disinheritance
i. An express statement in their a will disinheriting a child – not necessary, it is enough that the child is not
mentioned in the will
1. it is necessary that the estate be devised to other persons (if a child is being disinherited, it is not
enough to say so) because if there is a partial intestacy, the disinherited child will receive a share
notwithstanding the provision in a will.
ii. UPC §2-101(b) changes this rule and authorizes a negative will. The barred heir is treated as if he
disclaimed his intestate share (i.e. as having predeceased the intestate)
6. Shares of Ancestors and Collaterals
a. Line of intestacy
i. When the intestate decedent is survived by a descendant, the decedent’s ancestors and collaterals do not take
ii. When there is no descendants, after deducting the spouse’s share, the rest of the property is distributed to
decedent’s parents (under the UPC and in most states)
iii. If there is no spouse or parent, the decedent’s heirs will be more remote ancestors or collateral kindred
1. collateral kindred – all persons who are related by blood to the decedent but who are not
descendants or ancestors
2. first-line collaterals – descendants of the decedent’s parents, other than the decedent and the
decedent’s issue
3. second-line collaterals – descendants of the decedent’s grandparents, other than decedent’s parents
and their issue
iv. If the decedent is not survived by a spouse, descendant, or parent, the intestate property passes to brothers
and sisters
1. nieces and nephews take by representation of their deceased.
v. If there are no first-line collaterals, the states differ as to who is next in line of succession
1. the parentelic system
a. the intestate estate passes to grandparents and their descendants, and if none to great-
grandparents and their descendants, and if none to great-great grandparents and their
descendants, and so on down each line descended from an ancestor until an heir is found
2. the degree-of-relationship system
a. the intestate estate passes to the closest of kin, counting degrees of kinship
i. count steps up from the decedent to the nearest common ancestor of the decedent
and the claimant, and then count the steps down to the claimant and the common
ancestors.
b. “Laughing heirs” – far removed kin that may have a claim to an estate
i. UPC § 2-103
1. Intestate succession inheritance is limited to grandparents and their descendents
2. eliminates inheritance by more remote relatives traced through great-grandparents and other more
remote ancestors
ii. Some states allow inheritance by remote relatives
1. California allows intestate succession to stepchildren, mothers-in-law, fathers-in-law, brothers-in-
law, and sisters-in-law (but not to sons-in-law or daughters-in-law
iii. Problem 3 Page 82
1. Figure out the answer.
c. If the intestate leaves no survivors entitled to take under the intestacy statute, the intestate’s property escheats to the
state
d. Half-bloods
i. UPC §2-107
1. a relative of the half-blood (i.e. half-sister) is treated the same as a relative of the whole-blood.
ii. In a few states, a half-blood is given a half share
iii. In a few other states, a half-blood takes only when there are no whole-blood relatives of the same degree
Section B. Transfers to Children
1. Meaning of Children
a. Adopted Children
i. Hall v. Vallandingham
1. Facts: E. Vallandingham dies, leaving three children and a wife. The wife remarries and the new
husband adopts the children. Subsequently, the deceased husband’s brother passes away intestate.
The E.V.’s children claim they are entitled to their share of the estate.
2. Issue: whether adopted persons have the right to inherit by representation of their biological parent?
No.
3. The Maryland statute states that an adopted child is no longer considered a child of the natural
parent. The court finds that adopted children are not entitled to more privileges than others because
they would be able to inherit doubly (natural and adopted parent). In a statute eliminating the
adopted child’s right to inherit from the natural parent it concomitantly abrogated the right to
inherit through the natural parent by way of representation.
ii. Uniform Probate Code
1. UPC § 2-113 Individuals Related to Decedent Through Two Lines
a. An individual who is related to the decedent through two lines of relationship is entitled to
only a single share based on the relationship that would entitle the individual to the larger
share.
2. UPC § 2-114 Parent and Child Relationship
a. Except as provided in subsections (b) and (c), for purposes of intestate succession by,
through, or from a person, an individual is the child of his natural parents, regardless of
their marital status.
b. An adopted individual is the child of his adopting parent or parents and not of his natural
parents, but adoption of a child by the spouse of either natural parent has not effect on
i. the relationship between the child and the natural parent
ii. or the right of the child or a descendant of the child to inherit from or through the
natural parent.
c. Inheritance from or through a child by either natural parent or his kindred is precluded
unless that natural parent has openly treated the child as his, and has not refused to support
the child.
i. [This element is the minority rule]
iii. Notes
1. Three ways adopted children may inherit
a. Only from adoptive parents and their relatives
b. From both natural and adopted parents and relatives
c. From adoptive relatives and also from natural relatives if the child is adopted by the step
parent
2. Under UPC § 2-114, in a stepparent adoption, the children can inherit from their natural relatives,
but the natural relatives cannot inherit from them.
3. Adult Adoption.
a. The majority of inheritance statutes draw no distinction between the adoption of a minor
or the adoption of an adult.
b. The adoption of an adult may be useful in preventing a will contest.
i. The only persons who have standing to challenge the validity of a will are those
persons who would take if the will were denied probate. If the testator adopts a
child, the testator’s collateral relatives cannot contest the will on the ground that
they would inherit by intestacy.
c. The adoption of a spouse or a lover may not be allowed
i. New York does not allow it, Delaware does.
d. The cases are split over whether adult adoptees are included within gifts to classes such as
children, issue, or descendants
e. Adoption is not revocable (unlike marriage, you cannot un-adopt a child)
iv. Adoption and the interpretation of wills and trusts
1. Early cases: adopted children could not take in the wills and trusts of those that were not the
adoptive parents
2. Stranger-to-the-adoption rule
a. The adopted child is presumptively barred, whatever the generic word is used, except
when the donor is the adoptive parent
3. Changes to the STTA rule, for example:
a. An adopted child might be permitted to take if adopted before, but not after, the testator’s
death
b. Distinctions made between a gift to “A’s children” and a fit to “A’s issue” or the “heirs of
A’s body” – children included adopted children
4. Today
a. In most states today, adopted children are presumptively included in third party gifts by
adoptive relatives.
v. Minary v. Citizens Fidelity Bank & Trust Co.
1. Amelia Minary died leaving all her estate in a trust paying the income to her husband and her three
sons, James, Thomas, and Alfred. Upon the death of the last beneficiary, the trust was to dissolve
and be distributed to her surviving heirs, and, if no such heirs, then to the First Christian Church.
The husband died, James died without issue, Thomas had two children (Thomas and Amelia).
Alfred married Myra and then adopted her as his child in 1959.
2. Issue: Whether Alfred’s adoption of his wife Myra makes her eligible to inherit under the
provisions of his mother’s will? Does Myra qualify as “surviving heirs” according to the laws of
descent and distribution “then in force” in Kentucky? No, Myra cannot be a “surviving heir” of
Amelia.
3. The courts have moved toward the interpretation of children or heirs to include adopted children.
In this case, however, the court points out that there are two competing interests: the adoption laws
allowing the adopted child to take from the adoptive family and the intent of the testator. While
there is no policy in allowing an adopted child to deliberately become an adopted child to take
under a will, it is not appropriate when the intent of the testator is violated and the property is
prevented to pass according to the testator’s wishes. “Adoption of an adult for the purpose of
bringing that person under the provision of a preexisting testamentary instrument when he clearly
was not intended to be so covered should not be permitted….”
vi. Equitable or Virtual Adoption
1. O’Neal v. Wilkes
a. O’Neal was born out of wedlock. When her mother died and she went to live with her
aunt Ethel Campbell. Campbell gave O’Neal to a woman named Louise who in turn took
her to Estelle Page, the sister of O’Neal’s biological father. Page gave the girl to Roswell
Cook and his wife because they wanted a daughter. The Cooks raised O’Neal. Mr. Cook
died intestate and O’Neal is suing for the recognition of equitable adoption so that she
may take from his estate.
b. Whether equitable adoption is proper in this case. No.
c. Equitable adoption
i. Requirements
1. showing of an agreement between the natural and adoptive parents
a. Page did not have the authority to enter into a contract for her
adoption and therefore, the alleged ratification of the adoption
is not valid
2. performance by the natural parents of the child in giving up custody
a. the paternal aunt did not have the authority to give up custody,
only a parent with “control” can do so (i.e. the biological father
who never recognized O’Neal could not give the child up for
adoption)
b. a “legal custodian” (court appointed) also does not have the
right to give up parental rights
3. performance by the child by living in the home of the adoptive parents
4. partial performance by the foster parents in taking the child into the
home and treating it as their own child
a. Cook’s actions were only familial obligation.
5. intestacy of the foster parent
d. Dissent
i. Equitable or virtual adoption should have been granted in this case – the child
fully performed the contract over the course of many years and can sufficiently
establish the existence of a K to adopt
1. the adoptive parents know of the defect in the contract and voice no
objection to the contract while the child fulfills its part of the contract
2. equitable adoption cases do not arise until the death of the adopting
parent and therefore, the interest of the person with the right to consent
to adopt and of the adopting parents are not in jeopardy, but the interest
of the child are
3. where there is no person with the legal authority to consent to the
adoption, the only reason to insist that a person be appointed the child’s
legal guardian before agreeing to the contract to adopt would be for the
protection of the child.
b. Posthumous Children
i. Cases
1. child conceived before, but born after, the father’s death inherit intestate as if they had been born in
the decedent’s live time
a. the child is “in being” from the time of conception (rather than from birth
c. Nonmarital Children
i. Early law found a child born out of wedlock was filius nullius, the child of no one and could inherit from
neither father nor mother. Furthermore, only the child’s spouse or descendants could inherit from the child,
otherwise, the property would escheat to the state.
ii. Today
1. all jurisdictions permit inheritance from the mother but the rules respecting inheritance from the
father varies
2. most states permit paternity to be established by evidence of the subsequent marriage of the
parents, by acknowledgment by the father, by adjudication during the life of the father, or by clear
and convincing proof after his death
3. Uniform Parentage Act: the parent-child relationship extends to every parent and child, regardless
of the marital status of the parents
a. A parent-child relationship is presumed to exist between the father and child if
i. While the child is less than age two, the father lives in the same household as the
child and openly holds out the child as his natural child OR
ii. The father acknowledges his paternity in a writing that is filed with an
appropriate court or administrative agency
d. Reproductive Technology and New Forms of Parentage
i. Surrogate motherhood
1.
2. Advancements
3. Guardianship and Conservatorship of Minors
a. Guardian of the Person
b. Property Management Options
i. Guardianship
1.
ii. Conservatorship
iii. Custodianship
1. Uniform Transfers to Minors Act
a. Statutory Trust
i. Broad discretionary powers, no court supervision
iv. Trusts
1.
v. Variations on transfers to minors
4. Problem page 120 –
a. Will of page 122 – testamentary trust included in Article 5 - Simple minor’s trust
i. Pot trust (when youngest turns 21) or contingent trust (when the children reach 21)
b. The problem we are supposed to address is the distribution of the estate where Howard dies – Brown is survived by
wife, two children, and stepson.
c. Which property is passed through probate? Only property that intestate share will attach to, other property are not
part of distribution.
i. Tangible personalty, Residence, General Corp stock, Varoom Mutual Fund, remainder interest – totaling
$225,000
ii. 2-102(3) applies - $150,000 to Wendy plus one-half of remaining - $37,500 = 187,500. Children get
37,500/2 = $18,750. Michael, step-son, gets zero.
1. Children won’t get money unless court orders payment to a custodian on behalf of each child under
UTMA.
iii. Remainder interest in home – Sister
d. How much is distributed under will? $225,000, will operates on identical property as intestate succession
e. Children’s trust is a family pot trust, everything goes in. Acts a lot like the husband had not died, treat each child
fairly. Older children always win when parents die intestate, because they receive an equal share and have already
received more benefits from a parent.
f. What about the new baby? May not want to where the oldest child will be 45 when the youngest reaches age 25.

Section C. Bars to Succession


1. Homicide
a. In re Estate of Mahoney
i. Three approaches
1. The legal title passed to the slayer and may be retained by him in spite of his crime.
2. The legal title will not pass to the slayer because of the equitable principle that no one should be
permitted to profit by his own fraud, or take advantage and profit as a result of his own wrong or
crime
3. The legal title passes to the slayer but equity holds him to be a constructive trustee for the heir or
next of kin of the decedent. A killer disclaims their right to the property, but it does not bar the
killer’s heirs.
4. Even if there is a will, the same rule applies
ii. Constructive trust
1. “Nothing but ‘the formula through which the conscience of equity finds expression.’ Property is
acquired in such circumstances that the holder of legal title may not in good conscience retain the
beneficial interest. Equity, to express its disapproval of his conduct, converts him to a trustee.”
2. Is a trust which is created, generally by a court, for protection of the assets b/c there has been some
event that has taken place previously that has harmed that beneficiary.
iii. Intentional killings should trigger the constructive trust
1. the probate court is limited jurisdiction and do not have equity powers, therefore it is not the
appropriate forum to make the determination
a. the probate court should appeal to the chancery court to hold evidentiary hearings to
determine whether the killing was intentional and felonious
b. a conviction does not dispense with the necessity of proof in the chancery court – the
question is whether there was an intentional and felonious killing.
2. Key point – if the crime for which there has been a conviction had as its question whether there
was an intentional and felonious killing, then that conviction is binding in the probate court
a. If there is an acquittal, the result is not conclusive as to intentional and felonious killing in
the chancery court
i. The standard of proof is lower in the chancery court: preponderance of the
evidence.
3. Covers only intestate takers and testate takers
a. What about the payable on death bank account or the life insurance?
i. A statute is necessary
b. UPC § 2-803
i. § 2-803 bars the killer from succeeding to nonprobate as well as probate property
1. also provides that “a wrongful acquisition of property must be treated in accordance with the
equitable principle that a killer cannot profit from his wrong”
2. the killer is treated as having predeceased the victim
2. Disclaimer
a. Overview
i. Common Law
1. The intestate taker who did not want the property and disclaimed, would be treated as if they had
made a gift (taxable) to the person who succeeds to the property on account of the disclaimer.
Under a will, if a person disclaims, the person is treated as if he had never owned the property and
went to the successive beneficiaries.
ii. Disclaimer legislation – enacted by most states
1. The disclaimant is treated as having predeceased the decedent. Thus, the decedent’s property does
not pass to the disclaimant, and under state law the disclaimant makes no transfer of it.
iii. P. 134 Problem – A and C would share the property equally before disclaimer. Disclaimer: Statute says that
the disclaimed interest passes as if the disclaiming party had predeceased. Doesn’t say you redistribute all of
O’s property.
iv. UPC § 2-1106(b)(3)(A)
1. The disclaimed interest passes as if the disclaimant had died immediately before the time of
distribution. However, if, by law or under the instrument, the descendants of the disclaimant would
share in the disclaimed interest by any method of representation had the disclaimant died before the
time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who
survive the time of distribution.
b. Drye v. United States
i. Drye ran up an unpaid $325,000 tax bill, prompting the IRS to file tax liens. When Drye’s mother died, he
inherited $233,000 but disclaimed them so that the IRS would not be entitled to the money.
ii. Issue: Whether Drye’s disclaimer was effective to pass the property to his daughter free from the federal tax
line.
iii. Reasoning
1. The disclaiming heir exercises dominion over the property and therefore has a right to property
subject to government liens
2. Relation back doctrine is a legal fiction because the disclaimant did not predecease the decedent
(the creation of the legislature or the courts)
iv. Exception: federal government’s ability to ignore, for purposes of tax liens, to ignore the state law property
rules in terms of the disclaimer
1. the relation back doctrine does not work against the government
c. Troy v. Hart
i. Paul H. Lettich was an elderly recipient of Medicare. Paul’s sister Alta Mae passed away intestate with a
$300,000 estate. Paul and his two sisters are the heirs ($100,000/person). Mildred Hart (representative of
Alta Mae’s estate) has Paul sign a disclaimer of his portion of the estate. Lettich was in violation of federal
law when he did not report the possibility of the inheritance. Troy, who had Paul’s power of attorney, files
suit to have the disclaimer rescinded and to have Hart thrown out as representative of the estate. The court
finds that the disclaimer is valid and that Hart was not to be removed as personal representative.
ii. Holding
1. The court suggests, and Hart’s attorney agrees, that Mildred and her sister will pay Medicaid for
the part of Paul’s care that the $100,000 would have covered
a. Medicaid is powerless to recover anything, all they can do is discontinue care
d. Medicaid
i. Legislation against state planners who encourage their clients to impoverish themselves in order to become
eligible for Medicaid coverage
1. long waiting periods for eligibility
2. federal offense for an attorney to advice their client to do so
3. it is okay to gift to children, but there is a five year period between doing so and applying for
Medicaid benefits

CHAPTER 3 WILLS: CAPACITY AND CONTEST

Section A.
1. Test of Mental Capacity
a. Elements [note: test of capability NOT of actual knowledge]
i. The testator must be an adult (18 years or older)
1. In many states, those who are under 18 may make a will if they are married or emancipated.
ii. And “must be capable of knowing and understanding in a general way
1. the nature and extent of his or her property,
2. the natural objects of his or her bounty (family members i.e. # children, grandchildren, etc.),
3. the disposition that he or she is making of that property, and
4. must be capable of relating these elements to one another and forming an orderly desire
regarding the disposition of the property.”
b. In re Estate of Wright
i. Decedent had a real estate agent draft his will giving one of his properties to a friend, another to his
daughter, and the last one to his granddaughter. To other members of the family he conveyed $1. The
daughter brought an action to find the father incapable at the time the will was drafted.
ii. PH: The trial court found that the father had been mentally incapable at the time the will was drafted, the
Sup. Ct. of California reverses.
iii. (1) Close scrutiny on testamentary witnesses who later try to say that the person was incapable at the time of
the signing. There is close scrutiny because part of what the witness is attesting to is the capability of the
signer. (2) The daughter placed several witnesses on the stand to try to show that the father was not
mentally capable. However, because none of the witnesses was able to recount anything other than isolated
acts, it was not sufficient.
1. Witnesses – certify that the testator was competent and then show up to court to take the
certification back
iv. Rule: Testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies,
moral or mental irregularities or departures from the normal UNLESS they directly bear upon and have
influenced the testamentary act.
c. Note
i. For lawyers, to draft a will for an incompetent person is a breach of legal ethics – fraud on the system to do
so – fire the client
ii. Lucid interval
1. Capacity to make a will is governed by a different legal test and requires less mental ability than to
manage one’s investments, to make a contract, or to make a gift
2. A person may be found to be incapacitated but a will may still be valid if executed during a “lucid
interval”
iii. Juries rule against the validity of the will MOST of the time
2. Why require mental capacity? (explanations)
a. The will should be given effect only if it represents the testator’s true desires
b. A mentally incompetent man or woman is not defined as a “person”
c. To protect the decedent’s family
d. To a large extent, the public acceptance of law rests upon a belief that legal institutions, including inheritance, are
legitimate, and legitimacy cannot exist unless decisions are reasoned.
e. Assures a sane person that the disposition the person desires will be carried out even if the person later becomes
insane and makes another will
i. Gives a person of sound mind the advantage of being able, while in a rational mind, to choose what will
happen to his property in the future and to have confidence that his choice will be carried out
f. May protect society at large from irrational acts
g. May protect a senile or incompetent testator from exploitation by cunning persons
3. Insane Delusion
a. Overview
i. Definition: a delusion is a false conception of reality and is a legal, not psychiatric, concept
1. often involve some false belief about a member of the testator’s family
2. capacity is generally present but the delusion affects a portion of, or all of, the will (unlike a lack of
capacity which always results in the revocation of the whole will)
a. v. mistake
i. mistake is correctable i.e. testator does not know something which affects a
disposition in the will, no post-mortem fact-fixing
ii. delusion – rejection of any change of mind
ii. Rules
1. majority: a delusion is insane even if there is some factual basis for it if a rational person in the
testator’s situation could not have drawn the conclusion reached by the testator
2. minority: if there is any factual basis at all for the testator’s delusion, it is not deemed insane
iii. If there is an insane delusion
1. only the part of the will caused by the insane delusion fails
2. if the entire will was caused by the insane delusion, the entire will fails
3. if insane delusions are shown, but they do not affect the dispositions, then the entire will stands
b. In re Strittmater (NJ 1947)
i. Deceased was an unmarried woman aged 48 years. She left her estate to the National Women’s Party. In
her later years, it seems that she had a split personality disorder and a strong contempt for men, which she
noted in the margins of books and in other written documents. Her personal physician testified of the type
of insanity the deceased suffered.
ii. Issue: whether Strittmater suffered from an insane delusion.
iii. Steps
1. Does she have capacity generally?
2. Did she have an insane delusion?
a. According to the court, the delusion is a hatred of men
b. Little evidence of the delusion
3. Did the insane delusion affect the disposition of the will?
a. How did the delusion affect the will?
i. The court assumes that because the property of the decedent went to NWP, her
delusion caused her to make the gift.
b. Little or nonexistent evidence that the delusion caused the gift.
iv. (1) A history of insanity was established by the evidence which included memoranda and comments written
by decedent on the margins of books and on pictures. Treating physician testimony shows that the decedent
had been ill for many years. (2) There was no clear commitment to the National Women’s Party even
though she did volunteer for the group once a week, there were comments in her writings that showed she
did not find the party to be worthwhile. Further, the time of death was only one month after she changed the
will. The lower court’s judgment is affirmed.
v. Problem – overall sense of the court: male dominated. The National Women’s Party was extreme at the
time.
c. In re Honigman
i. Frank Honigman died, survived by his wife. A month before his death, he cut off his wife with a life use of
her minimum statutory share plus $2500 (minimum statutory share – life estate in 1/2 plus $2,500). [This is
different from an intestate share – almost always more than the statutory share.] He gave $5,000 to each of
three named grandnieces. The remainder he left to his living brothers and sister per stirpes. The will was
offered for probate and the widow filed objections. The main issue was whether Frank was of sound mind
when he crafted the last will. The jury answered in the negative and the court made a decree denying
probate to the will. The Appellate Division reversed upon the law and the facts, and probate was directed.
ii. Issue: whether Frank was of sound mind when he crafted the will.
1. Did he have capacity generally?
2. Did he have an insane delusion in thinking the wife was cheating on him?
3. Did the insane delusion affect the disposition of the will?
iii. The proof amply supports the jury findings that the testator was suffering from an unwarranted delusion that
his wife was unfaithful to him, which condition affected the disposition made in the will. Frank was subject
to many medical ailments and random acts – he went to Europe without his wife and only told her of the trip
by a note. When he returned, he moved out of the marital home. To contradict the proposition of an
irrational obsession, the estate representative sought to demonstrate the reasonable basis for Frank’s belief.
The court states that the jury had the right to disregard such proof – in any case, the necessary proof is not
whether the wife was actually unfaithful to him, but whether Frank had any reasonable basis for believing
she was. In any case, the province of the jury should not be impeded upon. Furthermore, inadmissible
evidence was admitted. The court orders a new trial
1. Majority: Will is bad when its dispository provisions might have been, or was affected by an
insane delusion (majority rule)
iv. Dissent: a person’s doubts, if not well founded, do not immediately become lunacy. The testator should be
allowed to do as he wishes, unreasonable or unjust provisions are not required.
1. Minority: Must show evidence of causation between the delusion and the unnatural
disposition
d. Difference between an insane delusion and a mistake
i. An insane delusion is a belief not susceptible to correction by presenting the testator with evidence
indicating the falsity of the belief
ii. A mistake is susceptible to correction if the testator is told the truth
1. Courts do not invalidate a will if there is a mistake.
e. Living probate or Ante-mortem probate
i. Statutes in Arkansas, North Dakota, and Ohio permit probate of a will during the testator’s life which
authorize a person to institute during life an adversary proceeding to declare the validity of a will and the
testamentary capacity and freedom from undue influence of the person executing the will
1. all beneficiaries named in the will and all testator’s heirs apparent must be made parties to the
action
ii. Authenticated will in civil law countries

Section B. Undue Influence


1. Overview
a. To establish undue influence, it must be proved
i. That the testator was susceptible to undue influence,
ii. That the influencer had the disposition or motive to exercise undue influence,
iii. That the influencer had the opportunity to exercise undue influence, and
iv. That the disposition is the result of the influence
2. Estate of Lakatosh (1994)
a. Rose, an elderly woman, was befriended by Roger. She became dependent on Roger and he finally convinced her to
give him power of attorney. He converted her assets and lost much of her money for the good of others, not
including Rose. Rose changed her will to give everything but $1,000 to Roger. Rose finally revoked the power of
attorney but never changed the will.
b. Issue: Whether Roger exerted undue influence on Rose, as a reason for which the will must be revoked.
c. The court applies the following test:
i. The burden of proof may be shifted as to require the proponent to disprove undue influence. To do so, the
contestant must prove by clear and convincing evidence
1. that there was a confidential relationship
2. that the person enjoying such relationship received the bulk of the estate, and
3. that the decedent’s intellect was weakened
ii. The burden was easily shifted as the facts met all the requirements and Roger failed to carry his burden of
proving the absence of undue influence.
3. Restatement (Third) of Property: Wills and Other Donative Transfers (2003)
a. § 8.3 Undue Influence, Duress, or Fraud
i. A donative transfer is invalid to the extent that it was procured by undue influence, duress, or fraud
ii. A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor
that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would
not otherwise have made
b. Comment H to § 8.3 Suspicious Circumstanced
i. A confidential relationship is not sufficient to raise a presumption of undue influence. Suspicious
circumstances surrounding the preparation, execution, or formulation of the donative transfer must exist that
give raise to an inference of abuse of the confidential relationship between the alleged wrongdoer and the
donor.
ii. Relevant factors
1. physical and mental condition of the donor
2. wrongdoer’s participation in the preparation or procurement of the will or will substitute
3. whether the donor received independent advice from an attorney or from other competent and
disinterested advisors in the preparation of the will
4. whether the will was prepared in secrecy or in haste
5. whether the donor’s attitude toward other had changed by reason of his or her relationship with the
alleged wrongdoer
6. whether there is a decided discrepancy between a new and previous will or will substitutes of the
donor
7. whether there was a continuity of purpose running through the former wills or will substitutes
indicating a settled intent in the disposition of his or her property; and
8. whether the disposition of the property is such that a reasonable person would regard as unnatural,
unjust, or unfair i.e. abrupt disinheritance of faithful family members.
4. Notes
a. Once the burden is shifted, what must the proponent show?
i. Some courts require that the proponent disprove all the elements of undue influence that have been
established
1. problem: how can susceptibility be disproved?
ii. Review of the above standard lead a court to change it holding that “the rule for rebutting the presumption
of undue influence arising from a confidential relationship only requires
1. the grantee of a transaction to prove by clear, satisfactory, and convincing evidence
2. that the grantee acted in good faith throughout the transaction
3. and the grantor acted freely, intelligently, and voluntarily.”
b. Split authority as to whether the undue influence standards for wills apply to lifetime gifts or non-probate transfers.
c. If part of a will is the product of undue influence, those portions of the will that are products of such influence may
be stricken and the remainder of the will allowed to stand, if the portions of the will can be separated without
defeating the testator’s intent or destroying the testamentary scheme.
5. Lipper v. Weslow (1963)
a. Testatrix Sophia Block changed her will soon before passing away to disinherit her grandchildren through one of her
deceased children. The grandchildren brought this action claiming that Sophia was under the undue influence of her
son Frank Lipper and therefore her will is invalid. The jury found in behalf of the Plaintiffs
b. Issue: whether Frank exerted undue influence on Sophia.
c. No. There is no evidence of probative force to support the verdict of the jury and therefore the verdict is reversed.
i. While there is the appearance of foul play because Frank was the attorney who drafted the will and who
received a greater benefit as a result, there are several reasons why there is no show of undue influence
ii. A specific provision on the will explains the reasons why Sophia left nothing to her grandchildren – they
were estranged to her and she had not seen them for years (since the death of their father)
iii. Sophia told three different people of her plan to disinherit her grandchildren.
iv. Sophia was of sound mind at the time of her death.
v. No probative evidence was presented supporting the claim of undue influence
6. No-Contest Clauses
a. A no-contest clause provides that a beneficiary who contests the will shall take nothing, or a token amount, in lieu of
the provisions made for the beneficiary in the will
i. Enforcement of a no-contest clause discourages unmeritorious litigation, family quarrels, and defaming the
reputation of the testator.
ii. Enforcement of a no-contest clause could inhibit a lawsuit providing forgery, fraud, or undue influence and
nullify the safeguards built around the testamentary disposition of property.
b. Court action
i. Majority
1. enforce no-contest clause unless there is probable cause for the contest
a. UPC §§ 2-517, 3-905
ii. Minority
1. courts enforce no-contest clauses unless the contestant alleges forgery or subsequent revocation by
a later will or codicil, or the beneficiary is contesting a provision benefiting the drafter of the will
or of any witnesses thereto
a. probable cause rule encourages litigation and shifts the balance unduly in favor of
contestants
7. Bequests to Attorneys
a. Undue influence
i. Many courts hold a presumption of undue influence arises when an attorney-drafter received a legacy,
except when the attorney is related to the testator. The presumption can be rebutted only by clear and
convincing evidence provided by the attorney.
ii. California
1. Statute invalidates any bequest to a lawyer who drafts the will unless the lawyer is related by blood
or marriage to the testator.
a. Exception: permits a bequest to a nonrelated lawyer-drafter if the client consults an
independent lawyer who attaches to the document a “Certificate of Independent Review,”
which must state that the reviewing lawyer concludes the gift is not due to undue
influence, fraud, or duress.
b. Unethical conduct
i. Model Rules of Professional Conduct: Prohibited Transactions
1. A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a
parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift,
except where the client is related to the donee
a. If it is the clients intent to effect such a gift, the client should have the detached advice that
of a third party lawyer.
8. In re Will of Moses (1969)
a. Decedent executed a will under the advice of independent counsel in which she devised all her property to her lover,
Clarence Holland, a man fifteen years her junior and her attorney for many years. Upon her death, her sister
contested the will on the grounds of undue influence. The chancellor found undue influence and revoked the will.
b. Whether there is undue influence.
c. The Chancellor was justified in his finding that there was undue influence.
i. Presumption of undue influence because a fiduciary attorney-client relationship existed at the time the will
was drafted.
1. can only be refuted by evidence that Fannie acted upon the independent advice and counsel of one
entirely devoted to her interest
ii. Independent attorney
1. while Fannie had an attorney draft her will independent of Holland, the attorney testified that he
never counseled her on what she should do with her possessions
2. the court finds that the attorney was merely a scrivener
3. the advice and counsel of an independent attorney must be meaningful
iii. Suspicious circumstances
1. the court finds such circumstances present in this case, even though they are not found in the actual
drafting of the will.
iv. Holland did not overcome the presumption of undue influence
d. Dissent
i. Suspicious circumstance may only be considered when directly connected to the actual drafting of the will.
9. In re Kaufmann’s Will (1964)

Section C. Fraud
1. Overview
a. Fraud occurs where the testator is deceived by a misrepresentation and does that which the testator would not have
done had the misrepresentation not been made.
i. The misrepresentation must be made with the intent to deceive the testator and the purpose of influencing
the testamentary
ii. Any provision procured by fraud is invalid.
b. Where the probate court cannot do justice by refusing to probate, the will may be probated and then a court with
equity powers can impose a constructive trust on one or more of the beneficiaries to remedy the unjust enrichment
caused by the fraud.
2. Types of Fraud
a. Fraud in the inducement. Occurs when a person misrepresents facts, thereby causing the testator to execute a will, to
include particular provisions in the wrongdoer’s favor, or to refrain from executing or revoking a will.
i. A fraudulently procured inheritance or bequest is valid only if the testator would not have left the
inheritance or made the bequest had the testator known the true facts.
b. Fraud in the execution. Occurs when a person misrepresents the character or contents of the instrument signed by the
testator, which does not in fact carry out the testator’s intent.
i. Puckett v. Krida (1994). Live-in nurses convinced testator that her niece, who had power of attorney, was
mismanaging her property and planning to send testator to a nursing home (testator’s greatest fear). Testator
executed a deed and a will favoring the nurses. The trial court set aside both the deed and the will as
products of fraud and undue influence. The Court of Appeals affirmed, holding that the nurses had a
confidential relationship with testator for two reasons: (1) they were testator’s caregivers, and (2) one of the
nurses had a power of attorney. The confidential relationship along with the underlying encouragement of
testator’s false belief, was enough to raise a presumption of undue influence and fraud. The presumption
was not rebutted.

Section D. Duress
1. Definition.
a. A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that
coerced the donor into making a donative transfer that the donor would not otherwise have made. Restatement
(Third) of Property § 8.3(c)
b. Donative transfers compelled by duress are invalid.
2. Latham v. Father Divine (1949)
a. Mary Sheldon Lyon died in 1946 leaving a will, executed in 1943, devising almost her whole estate to Father Divine
and some of his followers. Plaintiffs in this case are first cousins of testator who claim that testator had, on numerous
times, expressed her intent to draft a new will to leave a portion of her estate to her first cousins. They further claim
that by reasons of fraud, undue influence and duress, the defendants prevented the testator from executing a new will
and went as far as killing testator through an operation performed by a doctor they hired.
b. Supreme Court of New York dismissed the case, Court of Appeals reverses.
c. Whether Plaintiffs are entitled to equitable relief in the form of a constructive trust.
d. Equitable relief is available to plaintiffs. “Where a devisee or legatee under a will already executed prevents the
testator by fraud, duress or undue influence from revoking the will and executing a new will in favor of another or
from making a codicil, so that the testator dies leaving the original will in force, the devisee or legatee holds the
property thus acquired upon a constructive trust for the intended devisee of legatee.
i. A constructive trust may be erected whenever necessary to satisfy the demands of justice since such a trust
is merely the formula through which the conscience of equity finds expression.
1. The actual will is not invalidated since it had already been probated, however, to reach the benefits
of that probate, a constructive trust is created to benefit those who were initially entitled to the
property

Section E. Tortious Interference with Expectancy


1. Claim of action
a. The plaintiff must prove that the interference involved conduct tortuous in itself, such as fraud, duress, or undue
influence
i. The theory cannot be used when the challenge is based on the testator’s mental capacity
b. Another name: intentional interference with economic relations
2. Marshall v. Marshall (2002)
a. Test of Tortious interference applied by the court
i. A plaintiff must prove
1. the existence of an expectancy;
2. a reasonable certainty that the expectancy would have been realized but for the interference;
3. intentional interference with that expectancy;
4. tortuous conduct involved with the interference; and
5. damages.
3. Courts are split on whether to recognized a cause of action for tortuous interference with an expected inheritance or gift
4. An action for tortuous interference with an expectancy is not a will contest
a. It does not challenge the probate or validity of a will but rather seeks to recover tort damages from a third party
b. The action is not subject to the typical short statute of limitations on will contests (it starts running at the time P
discovered or should have discovered the fraud or undue influence)
c. There is generally a requirement to pursue probate remedies first if adequate; failure to do so may result in barring a
tortuous interference suit.
i. If P contests the will and loses, ordinarily P is barred by the principle of res judicata from suing later in tort
d. No-contest clauses do not a tortuous interference suit
e. Punitive damages may be recovered against the wrongdoer in a suit in tort but not in a suit seeking to prevent probate
of a will on the ground of undue influence or fraud.

CHAPTER 4 WILLS: FORMALITIES AND FORMS

Section A. Execution of Wills


1. Attested Wills
a. The Function of Formalities
i. Why are the statutes so rigid?
1. Gulliver & Tilson
a. Statutory purposes
i. ritual function or cautionary function–strict observance with the ceremonial
execution cautions the testator that what he/she is about to do is not routine, that
it is important and expected to be legally binding
ii. evidentiary function – person whose testimony is most valid is dead and cannot
testify; evidence will be reliable
iii. protective function
iv. channeling function – because the execution of wills is the kind of thing the
courts and the lawyers see over and over again, the more the documents look
alike, the Creates a safeharbor which provides the testator assurance that
his wishes will be carried out
1. forces people to go to lawyers to get the wills written and executed, the
more likely such documents will be found to be effective
2. Comparison of Statutory Formalities for Formal Wills
Statute of Frauds (1677) (land) Wills Act (1837) Uniform Probate Code (1990)
Writing Writing Writing
Signature Subscription Signature
Attestation & subscription by three Attestation & signature by two Attestation & signature by two
witnesses witnesses witnesses

b. UPC
i. UPC § 2-502 Execution; Witnessed Wills; Holographic Wills
1. (a) Except as provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be:
a. (1) in writing;
b. (2) signed by the testator or in the testator’s name by some other individual in the
testator’s conscious presence and by the testator’s direction; and
c. (3) signed by at least two individuals, each of whom signed within a reasonable time after
he witnessed either the signing of the will as described in paragraph (2) or the testator’s
acknowledgment of that signature or acknowledgment of the will.
2. (b) A will that does not comply with subsection (a) is valid as a holographic will, whether or not
witnessed, if the signature and material portions of the document are in the testator’s handwriting.
3. (c) Intent that the document constitute the testator’s will can be established by extrinsic evidence,
including, for holographic wills, portions of the document that are not in the testator’s handwriting.
ii. §2-505
1. (a) Any person generally competent to be a witness may act as a witness to a will.
2. (b) A will or any provision thereof is not invalid because the will is signed by an interested witness
iii. In re Groffman (1969, High Court of Justice, England)
1. Testator died three years after executing a will at the home of the Blocks. At his death, Groffman’s
widow challenged the will. If the will had been validly executed, Groffman’s children from his
first marriage would share in the estate, but if the will were invalid, his widow would take the
entire estate in intestacy. The dispute centered on the fact that Groffman and both witnesses were
not present together when Groffman acknowledged his signature.
2. The statute allowed the testator to either acknowledge his prior signature to both witnesses at the
same time or to sing the will before both witnesses. Although Groffman asked his fried together to
witness his will, he did not acknowledge his signature to them both simultaneously.
3. The court refused to admit the will to probate. While the document does represent the testamentary
intentions of the deceased, the court is bound by the statute.
c. Stevens v. Casdorph (W. Va. 1998)
i. The Casdorphs (decedent’s nephew and his family) took decedent to Shawnee Bank in W.Va. so that he
could execute his will (under which decedent leaves everything to the Casdorphs). Decedent asked Pauley a
bank employee and public notary to witness the execution of his will. Pauley took the will to two other
bank employees to sign as witnesses. However, the two other employees did not actually see decedent place
his signature on the will. Ps in this case are decedent’s nieces. They argue that the will was not properly
executed and should therefore be voided.
ii. Requirements of W.Va. statute
1. Signed by the testator
2. signed by two competent witness, present at the time in the presence of the testator and of each
other
iii. Substantial compliance
1. Ds argue that there was substantial compliance with the statute’s requirements, insofar as everyone
involved knew what was occurring.
a. Trial court found substantial compliance because everyone in the bank knew what testator
was doing
2. However, the mere intent by a testator to execute a written will is insufficient
a. Narrow exception
i. If a witness acknowledges his/her signature on a will in the physical presence of
the other subscribing witness and the testator, then the will is properly witnessed
within the terms of W.Va. code.
iv. Dissent
1. Majority worships form over substance and thus create only a harsh and inequitable result contrary
to the indisputable intent of testator.
2. A narrow, rigid construction of the statute should not be allowed to stand in the way of right and
justice, or be permitted to defeat the testator’s disposition of his property.
d. Notes
i. Presence
1. Line of sight test
a. The testator does not actually have to see the witnesses sign but must be able to see them
were the testator to look
i. Exception for blind persons
2. Conscious presence test
a. The witness is in the presence of the testator if the testator, through sight, hearing, or
general consciousness of events, comprehends that the witness is in the act of signing.
3. Note: UPC § 502(a) dispenses with the requirement that the witness sign in the testator’s presence
ii. Order of Signing
1. The testator must complete his signature while both witnesses are present.
2. Compare with a court upholding a will if the testator and the witnesses all sign while assembled in
a room, regardless of the order of signing
iii. Signature
1. Using an “X” in the place of a name, someone helping with the signature, digitized signature
a. Any other symbol or methodology executed or adopted by a party with intention to
authenticate a writing
2. Sick persons who cannot hold the pen and guides the hand
a. Is that a valid signature?
i. Depends. If the person asks for help, then it is generally valid
iv. Addition after signature
1. Subscription – at the foot or end of the will
a. Any additions below the subscription would not be valid
i. If there is anything written below the signature, the devise may be void. An
appointment of a fiduciary may be alright.
ii. What is a term was added afterwards?
v. Videotaped or electronic wills
1. Requirements vary by state
a. Substantial compliance or the dispensing power may be enough to validate a will.
vi. Attestation clause
1. Written statement at the end of a will (p. 217 par. 7) under the signature line of the testator.
2. Makes out a prima facie case that the will was duly executed; thus the will may be admitted to
probate even though the witnesses predecease the testator or cannot recall the events of execution.
vii. Delayed attestation
1. UPC provides that witnesses must sign within a reasonable time
viii. Notarization
1. most states requires that a deed be notarized to be recorded in the county recorder’s office;
witnessing does not suffice
e. Estate of Parsons (California 1980)
i. Decedent executed her will in the presence of three persons, who signed the will as attesting witnesses. Two
of the witnesses were named in the will as beneficiaries. The will was admitted to probate on the petition of
the executors. One of the beneficiary witnesses filed a disclaimer of her bequest. Appellants claim that that
the execution of the will violated § 51 because there were not two disinterested subscribing witnesses to the
will.
ii. Whether a subscribing witness to a will who is named in the will as a beneficiary becomes disinterested
within the meaning of Probate Code 51 by filing a disclaimer of her interest after the testatrix’ death. A
disclaimer is ineffective for that purpose
iii. Reasoning
1. The will would be void at the time of execution if there were not two disinterested attesting
witnesses to the will. The function of a witness is performed when the will is executed and the
code requires that at least two of the subscribing witnesses are disinterested.
a. The purpose of the statute is to protect the testator from fraud and undue influence at the
time of execution, by ensuring that at least two persons are present who are disinterested.
2. The relate back function relates back only to the death of the testator (which is when the interest is
actually created) and not to the day the will was signed.
iv. Holding: Probate Code § 51 looks solely to the time of execution and attestation of the will, it follows that a
subsequent disclaimer will be ineffective to transform an interested witness into a “disinterest” one within
the meaning of that section.
1. Any change to the code must be made by the legislature.
f. Purging Statutes
i. UPC § 2-505
1. (a) Any person generally competent to be a witness may act as witness to a will.
2. (b) A will or any provision thereof is not invalid because the will is signed by an interested witness.
ii. California Probate Code § 51:
1. Generally, such a statute purges the witness only of the benefit the witness receives that exceed the
benefit the witness would have received if the will had not been executed
iii. Massachusetts purging statute
1. Any person of sufficient understanding shall be deemed to be a competent witness to a will,
notwithstanding any common law disqualification for interest or otherwise; but a beneficial devise
or legacy to a subscribing witness or to the husband or wife of such witness shall be void unless
there are two other subscribing witnesses to the will who are not similarly benefited thereunder.
iv. Other states void the devise of the interested witness altogether or void the entire will altogether
g. In re Pavlinko’s Estate (Pa. 1959)
i. Vasil and Hellen Pavlinko signed their wills prior to Hellen’s death. However, they signed each other’s
wills. Hellen’s will was never probated. Upon Vasil’s death, the executor attempted to probate the will but
to no avail.
ii. The will is a nullity. The will Vasil signed cannot be probated because it does not bear his name. The entire
will would have to be rewritten to allow probate. The paper which recited that it was the will of Hellen
Pavlinko and intended and purported to give Hellen’s estate to her husband could not be probated as the will
of Vasil and was a nullity.
iii. Dissent. J. Musmanno
1. The intent of the testator must be gathered from the four corners of his will.
2. The will should have been allowed probate.
h. In re Snide (NY 1981)
i. Harvey and Rose signed each other’s wills by mistake. Rose introduced the will signed by Harvey to be
probated. The court reverses the lower court and orders the will to be probated.
ii. Reasoning
1. Genuine mistake. The testators followed the normal executory tradition. The only mistake was
that they signed each other’s wills, which were identical except for where the names.
2. The argument of lack of testamentary intent is overcome by the fact that the dispositive provisions
in both wills, except for the names, were identical.
a. The instrument was executed in the manner required by statute and should be admitted to
probate.
3. There is no chance of fraud, and the refusal to read the wills together would serve merely to
unnecessarily expand formalism, without any corresponding benefit.
iii. Dissent. J. Jones
1. Precedent should reign despite the unfair result.
iv. Options the court has in this case
1. probate the will the decedent intended to sign but did not
2. probate the will the decedent did sign and then reform its terms to make sense
i. Curative Doctrines
i. UPC § 2-503 Harmless Error
1. Although a document or writing added upon a document was not executed in compliance with § 2-
502, the document or writing is treated as if it had been executed in compliance with that section if
the proponent of the document or writing establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute
a. (i) the decedent’s will,
b. (ii) a partial or complete revocation of the will,
c. (iii) an addition to or an alteration of the will, or
d. (iv) a partial or complete revival of his or her formerly revoked will or of a formerly
revoked portion of the will.
2. If a state does not recognize holographic wills, a holographic will in the states that adopt § 2-503
will likely admit holographic wills for probate.
ii. In re Will of Ranney (NJ 1991)
1. Self-proving wills:
a. Two step: a separate affidavit is appended to the end of the will; the witnesses (and
sometimes the testator) must sign the affidavit in addition to signing the will itself, after
which the affidavit is notarized.
b. One step: the testator and the attesting witnesses sign only once, with the language of an
affidavit being folded into the attestation clause, after which the will is notarized.
2. Lawyers omitted the attestation clause and used instead an affidavit designed for a two-step
proving will. When the witnesses signed the document, they did not attest to the execution of a
will but rather signed an affidavit swearing that they had previously signed their names as
witnesses during a stage in the execution ceremony that never actually occurred. Although the
subject affidavit was executed simultaneously with the execution of the will, the affidavit refers to
the execution of the will in the past tense and incorrectly states that the witness had already signed
the will. Testator’s wife contests the will.
3. The Appellate Division declined to hold that the placement of the witnesses’ signatures is
immaterial, it ruled that the self proving affidavit was part of the will and that the witnesses’
signatures on the affidavit constituted signatures of the will.
4. Holding: The signatures on the subsequently-executed self-proving affidavit literally satisfied the
requirement of the statute as signatures on the will. However, the will may be admitted to probate
if it substantially complies with these requirements.
5. Reasoning
a. Self-proving affidavits and attestation clauses serve different functions. Attestation
clauses facilitate probate by providing prima facie evidence that the testator voluntarily
signed the will in the presence of the witnesses. Self-proving affidavits, by comparison,
are sworn statements by eyewitnesses that the will had been duly executed. The
difference is that in an attestation clause, the attestant expresses the present intent to act as
a witness, but in the affidavit, the affiant swears that the will has already been witnessed.
Therefore, there is no literal compliance with the statutory requirements.
b. Substantial compliance. Functional rule designed to cure the inequity caused by the
formalism of the law of wills. The purposes of wills are frustrated when strict formalism
is enforced. If the formalities surrounding the execution of the will, when formal defects
occur, proponents should prove by clear and convincing evidence that the will
substantially complies with statutory requirements.
i. A self-proving affidavit cannot serve as attestation and self-proof. Therefore,
there must still be a hearing in solemn form in which the court may determine
that the substantial compliance with the statutory requirements was
accomplished.
ii. This case extends the substantial compliance the most.
iii. In re Estate of Hall
1. Husband and wife decided to have a joint will drafted. They asked their attorney whether they
could make the draft of the will with all the changes a legal will until the copy is finalized. The
only persons that signed the will were the husband and wife and the attorney who notarized. Upon
the husband’s death, the will was contested solely on its form and the heir that contested sought to
introduce the prior will of the husband. Husband had told the wife to tear the old will upon
returning from signing the joint will.
2. Holding: the will should be admitted to probate
3. Reasoning
a. Exception to the general rule that the will must follow the statutory requirements of
signing
i. The proponent of the will must establish by clear and convincing evidence that
decedent intended the document to be his will (same as under § 2-503)
1. the joint will specifically revoked all previous wills and codicils made
by either party
2. Husband told wife to destroy the original will
4. Practitioner’s Pointer: Never draft a holographic will
iv. Notes
1. Substantial Compliance v. Dispensing Power
a. Substantial Compliance: if there is clear and convincing evidence (generally the highest
evidentiary standard in civil litigation) that the purposes of formalities – the evidentiary,
cautionary, protective, and channeling functions – were served despite a defective
execution, the will is admitted to probate.
b. Dispensing Power: provides for the probate of a document that was not properly executed
if the court is satisfied that there can be no reasonable doubt that the deceased intended the
document to constitute his will.
i. Advantage: the courts read into their substantial compliance doctrine a near-miss
standard, ignoring the central issue of whether the testator’s conduct evidenced
testamentary intent.
2. Holographic Wills
a. Overview
i. A holographic will is a will written by the testator’s hand and signed by the testator; attesting witnesses are
not required
1. Problems
a. The nature of the requirement that the testator sign the holograph,
i. A signature is required but a holograph that is not signed at the foot of the
document may raise a doubt about whether the decedent intended his name to be
a signature.
b. Whether the entirety, or if not, how much, of the holograph must be in the testator’s
handwriting
ii. Permitted in over half of the states, primarily in the South and West
1. only two states require a date
iii. Conditional wills
1. most cases presume the language of condition does not mean that the will is to be probated only if
the stated even happens, but is, instead, merely a statement of the inducement for execution of the
will, which can be probated upon death from any cause.
b. Kimmel’s Estate (Pa. 1924)
i. F: Kimmel sent a letter to his sons. The language at the end of the letter stated that if anything happens, all
the real property was to go to George and Irvin (writer’s sons). The letter was mailed by decedent, dated,
and signed “Father.” The testator dies on the day the letter is mailed.
ii. I: Whether the letter may be admitted as a holographic will (whether the paper is testamentary in character
and whether the signature is in sufficient compliance with the Wills Act).
iii. Reasoning
1. The words “if anything happens” is a condition to the gift, they strongly support the idea of
testamentary intent.
2. Signature. Signing “Father” is sufficient for the purposes of the Wills Act. Decedent signed all his
letters in the same manner, thus the intent to execute is apparent.
c. Extent written in the testator’s own handwriting
i. Statutes
1. First generation statutes: “entirely written, signed, and dated” in the handwriting of the testator
a. Some courts required that the will be entirely dated i.e., month, day, and year; any other
form would invalidate the will
b. Nine states still require that a holograph be entirely in the handwriting of the testator.
2. Second generation statutes (1969 UPC): “material provisions”
a. Require that the only signature and the material provisions be in the testator’s
handwriting.
b. Some courts were willing to look to the printed words to establish testamentary intent
c. Five states still have statutes based on 1969 UPC
3. Third generation statutes (1990 UPC): “material portions” and extrinsic evidence allowed
a. UPC § 2-502(b): A will is valid as a holographic will, whether or not witnessed, if the
signature and material portions of the document are in the testator’s handwriting.
b. UPC § 2-502(c): Intent that the document constitute the testator’s will can be established
by extrinsic evidence, including, for holographic wills, portions of the document that are
not in the testator’s handwriting”
ii. Testator writes the will on a preprinted will form but fails to have the form properly witnessed
1. Estate of Mulkins (1972)
a. (1st generation holographic will statute) Will is written on a stationer’s form and signs it.
The signing is not witnessed. The law requires that a holographic will be written entirely
by the testator and signed.
b. The court finds that the typed words on the page are surplus and therefore are not
necessary to admit the will to probate. The testamentary part of the will must be written
by the testator and the will must be signed. The printed words were not essential to the
meaning of the handwritten words and thus the will is admitted to probate.
2. Estate of Johnson (1981)
a. (2d generation statute) Will is written on a stationer’s form and signs it. The will is not
witnessed but it is notarized.
b. Between 1972 and 1981, Arizona revised its statute. It no longer requires that the entire
will be in the hand of the testator. A valid holograph is valid if the signature and the
material provisions are in the hand of the testator.
c. Whether the “material provisions” of the will were in the testator’s handwriting? No. The
will is rejected and not admitted to probate. The only way the court can determine the
validity of the will is to read the printed parts of the will and is therefore invalid.
3. Estate of Muder (1988)
a. Will is written on a stationer’s form and signs it. It is not witnessed.
b. Overturns Johnson but not explicitly. Under Johnson, this will is not admissible to probate
because the language does not express testamentary intention. Without overruling
Johnson, the will is admitted for probate saying that the printed language may be utilized
to put context to the written portions of the will
c. The court focuses their analysis on the testator’s intent: a testator who uses a preprinted
form, and in his own handwriting fills in the blanks by designating his beneficiaries and
apportioning his estate among them and signs it, had created a valid holographic will.
iii. Statutory form wills
1. Short wills with the wording spelled out in a statutes which provides spaces for the testator to fill in
the names of beneficiaries (general recipient-specific)
2. Must be signed and attested in the same manner as any attested will.
d. In re Estate of Kuralt
i. Kuralt met Shannon in 1968, after which the two initiated a long romance. In 1997, just two weeks before
Kuralt passed away, her wrote Shannon a letter assuring her that he would see to it that she would inherit his
property in Montana (he had built the cabin there for the two of them). In 1989, Kurault executed a
holographic will giving Shannon all interest in belongings located in Montana. He subsequently executed a
will in 1994 does not specifically mention any of the real property owned by Kuralt, but it gives all his
property to his wife and children. Shannon and her children were not named as beneficiaries. In 1997,
Kuralt deeded the 20 acre parcel in Montana to Shannon, however, he did not finish a buy-sell for the other
90 acres. The letter he wrote in 1997 stated that he intended to execute another document so that Shannon
would inherit the land in Montana. He never spoke to an attorney before his death.
ii. Shannon seeks to probate the letter as a holographic will. The DC decided that the letter was a codicil to the
1994 will.
iii. The letter demonstrated the testamentary intent of Kurault before he passed away. The DC’s findings are
supported by substantial evidence and are not clearly erroneous. Further, the letter was a codicil as a matter
of law because it made a specific bequest of the Montana property and did not purport to bequeath the
entirety of the estate.
1. Admitted as a will under § 2-502(c) – dispensing power statute. A document can be admitted as a
will of the testator if there is clear and convincing evidence that the testator intended the document
to be his will.
e. Notes
i. Codicil – a testamentary instrument that amends a prior will; it does not replace the will.

Section B. Revocation of Wills


1. Revocation by Writing or Physical Act
a. All states permit revocation of a will in one of two ways
i. (1) by subsequent writing executed with testamentary formalities, or
ii. (2) by a physical act such as destroying, obliterating, or burning the will
iii.  intent must accompany the act
iv. An oral declaration that a will is revoked, without more, is inoperative in all states
b. If a will is not revoked in a manner permitted by statute, the will is admitted to probate
c. UPC § 2-507 Revocation by Writing or by Act
i. (a) A will or any part thereof is revoked:
1. (1) by executing a subsequent will that revokes the previous will or part expressly or by
inconsistency; or
2. (2) by performing a revocatory act on the will, if the testator performed the act with the intent and
for the purpose of revoking the will or part or if another individual performed the act in the
testator’s conscious presence and by the testator’s direction. For purposes of this paragraph,
“revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will
or any part of it. A burning, tearing, or canceling is a “revocatory act on the will,” whether or not
the burn, tear, or cancellation touched any of the words on the will.
d. Harrison v. Bird (Alabama 1993)
i. Attorney had a duplicate original of the will – i.e. duplicate copies of the testamentary document and each
was signed and attested at the same time – two documents, each of which is a will. [NEVER execute
duplicate originals.] One original is kept by the attorney, the other is kept by the main beneficiary. Bird
calls the attorney and says she wants to revoke the will. The attorney, in the presence of his secretary, tears
the will in four and sends Bird the torn will. The heir of the decedent brings probate (intestate).
Subsequently, Harrison produces the other duplicate original.
ii. The court held that because the pieces cannot be found, there is a rebuttable presumption that the testator
revoked the will in some other manner after receiving the letter from the attorney and the four pieces of the
torn will.
1. The four pieces of the will were known to have been in the possession of the testator before the
death and were not found among the testator’s possessions after the death
2. Another original of the will is not evidence that the testator did not mean to revoke the will.
a. Harrison did not present sufficient evidence that the testator did not revoke the will. The
burden shifted to her to rebut presumption of revocation.
e. Thompson v. Royall (Virginia 1934)
i. A will is signed and attested; a codicil is then signed and attested. The testator wishes to revoke the will so
has one of the holders of the documents write on the back of the signed and attested pages of both the will
and the codicil that the will is null and void, the testator signs at the bottom of the statement.
ii. Is the writing on the back of the will and codicil revoking the will sufficient to legally revoke the will? No.
iii. Two things are necessary
1. intent – intent is present as demonstrated by the
2. physical act –
iv. D argues that the act effected was a “cancellation”
1. Striking-out or in some other manner defaces the face of the will
v. Mistake of the testator by believing that the will was revoked
1. Property given to the devisees, a constructive trust is created for the benefit of the heirs of the
decedent
a. remedy extends only to a situation when there has been fraudulent misrepresentation by
the attorney
2. Revocation by Inconsistency
a. Overview
i. A subsequent will wholly revokes the previous will by inconsistency if the testator intends the subsequent
will to replace rather than supplement the previous will
1. A subsequent will that does not expressly revoke the prior will but makes a complete disposition of
the testator’s estate is presumed to replace the prior will and revoke it by inconsistency
2. If the subsequent will does not make a complete disposition of the testator’s estate, it is not
presumed to revoke the prior will but is viewed as a codicil (supplements the will rather than
replace it)
3. Probate of Lost Wills
a. Overview
i. In the absence of statute, a will that is lost, or is destroyed without the consent of the testator, or is destroyed
with the consent of the testator but not in compliance with the revocation statute can be admitted into
probate if its content are proved.
1. A lost will can be proved by a copy in the lawyer-drafter’s office or by other clear and convincing
evidence
ii. In a few states, statutes prohibit the probate of a lost or destroyed will unless the will was “in existence” at
the testator’s death (and destroyed thereafter) or was “fraudulently destroyed” during the testator’s life.
1. States have chose to give effect to the will revocation statutes and have gutted the proof statutes by
holding either
a. that a will not lawfully revoked continues in legal existence until the testator’s death OR
b. that a will not lawfully destroyed by a method not permitted by the will revocation statute
has been “fraudulently destroyed”
4. Partial revocation by a physical act
a. UPC § 2-507 and some state statutes authorize partial revocation by physical act
b. In other states, a will cannot be revoked in part by an act of revocation; it can be revoked in part only by a subsequent
instrument
i. Reasons for prohibiting partial revocation by an act
1. (1) Canceling a gift to one person necessarily result in someone else taking the gift, and this “new
gift” can be made only by an attested writing
2. (2) permitting partial revocation by physical act offers opportunity for fraud
ii. If partial revocation by act is not recognized, the will must be admitted to probate in the form in which it
was originally executed.
5. Problems p. 257
a. “Cancelled” in the margin – does it constitute a revocatory act?
b. “Void” across the face of an unexecuted photocopy of the will – problem is that the physical act has not been done to
the will itself. Therefore, under a literal interpretation of the statute, there has been no revocation. What about a
mistake of fact? Person believed the document was the actual will, should that make a difference?
i. Not a valid revocation, however, because the testator made a mistake believing it was the original, the court
imposes a constructive trust on the codicil.
6. Problems p. 259
a. Four names, one lined out with a pencil (partial revocation)
i. Using UPC, there is a presumption that the will was partially revoked. The person whose name is penciled
out, the beneficiary would have to prove by clear and convincing evidence that his gift was not revoked.
Intent of testator – if the name was penciled out, it is possible that intent is missing because it could have
been done in pen or marker or something more permanent.
b. In a jx that does not permit partial revocation by physical act – the whole will is admitted to probate and the person
whose name is crossed out would take under the will.
c. No partial revocation by personal act but does permit holographic wills. Will is holographic and has a line through
one of the names.
i. Presumption that the testator actually put the line on the will.
ii. Presumption that the holographic will does not all have to be done simultaneously.
7. Dependent Relative Revocation and Revival
a. Definition
i. If the testator purports to revoke his will upon a mistaken assumption of law or fact, the revocation is
ineffective if the testator would not have revoked his will had he known the truth.
ii. Limits on the doctrine
1. With rare exceptions, court have held that DRR applies only
a. (1) where there is an alternative plan of disposition that fails, or
i. i.e., another will either duly or defectively executed
b. (2) where the mistake is recited in the terms of the revoking instrument, or, possibly, is
established by clear and convincing evidence.
b. LaCroix v. Senecal (Conn. 1953) – Mistake as to the effectiveness of a subsequent testamentary instrument. The TI
is treated as if it was never instituted.
i. Testator executed a will leaving the residue of her estate in equal shares, half to her nephew and half to
Senecal. T then had a codicil drafted, signed, and attested. The only change in the codicil was on the
provision with the above disposition, the name of the nephew because T had used the nephew’s nickname
on the will and wanted to ensure that there would be no confusion as to the disposition. Senecal’s husband
attested to the codicil, which, under the purging statute, results in a nullification of the gift to Senecal. [The
codicil is valid. No mention of whether the codicil had revocatory language only as to Section 5 and
reaffirms the rest of the will.]
ii. Senecal argues that dependent relative revocation exists in this case because there is clear intent of the
testator that the revocation of the old will is made conditional upon the validity of the new.
iii. The court agrees and infers that since the only change on the codicil was the nephew’s name, that the
testator would not have executed the codicil had she known that it would invalidate the gift.
1. Mistake – testator believed that the codicil would be effective. T was wrong because the codicil is
not effective because Senecal does not take under the will.
a. Intention to revoke was dependent upon the effectiveness of the will under the codicil.
The mistake means the necessary intention to revoke is not present.
2. Senecal takes under the WILL not the codicil.
iv. Does the nephew get his gift under the will or under the codicil?
1. Question turns on whether dependent relative revocation can apply to partial revocations (i.e.,
would it make the entire codicil invalid or only to the provision that is counter to the intent of the
testator.) DRR is a crude tool to the best job we can interpreting the testator’s intentions.
2. The Ct. here holds that the revocatory language of the codicil was tentative and therefore did not
have the necessary intention to revoke and therefore, the codicil is ineffective (will is given effect
over the codicil)
3. Under dependent relative revocation, it is possible that the nephew takes under the codicil and
Senecal takes under the will.
c. Estate of Alburn (Wisconsin 1963)
i. Alburn executed a will in 1955 in Milwaukee, giving property to her niece and then divides the residuary
giving to four other persons. She then executed a second will in 1959 in Kankakee, Illinois, which expressly
revokes the Milwaukee will. Only one of the beneficiaries is changed from the original will. When she
leaves Illinois, the brother she is living with in Wisconsin asks what she planned to do with the Kankakee
will, she says she was going to destroy it. She tears up the will and asks him to throw it away. She says she
wants the Milwaukee will to be effective.
ii. The court determined that the Kankakee will had been destroyed by deceased under the mistaken belief that
by so doing, she would revive the Milwaukee will which had been revoked by the revocation clause of the
Kankakee will. The court applied dependent relative revocation and held that the Kankakee will was
entitled to probate. This court affirms.
1. Milwaukee has the nonrevival of revoked will doctrine – when the Kankakee will was executed,
it revokes the Milwaukee will, which cannot be revived except by a subsequent testamentary
interest which republishes the Milwaukee will. This was never done and is therefore not effective.
2. Mistake: effectiveness of the Milwaukee will. The revocation of the Kankakee will was invalid
because the condition of having the Milwaukee will revived was not valid.
iii. Issue: Whether the finding of the trial court that deceased revoked the Kankakee will under the mistaken
belief that she was thereby reinstating the prior Milwaukee will is against the great weight and clean
preponderance of the evidence.
iv. H: If T had known that the prior will could not be revived by destroying subsequent will, T would not have
destroyed the subsequent will.
d. Revival
i. Facts: Testator executes will #1. Subsequently testator executes will #2, which revokes will #1 by an
express clause or by inconsistency. Later T revokes will #2. Is will #1 revived?
ii. Three different approaches
1. (1) Will #1 is not revoked unless will #2 remains in effect until the testator’s death. (English rule)
a. Therefore, will #1 is not revoked by will #2 – this theory does not involve revival at all
because the first will has never been revoked.
2. Will #2 legally revokes will #1 at the time will #2 is executed.
a. (2) Majority rule: upon revocation of will #2, will #1 is revived if the testator so intends
i. Circumstantial evidence surrounding revocation of will #2 or from testator’s
contemporaneous or subsequent oral declarations that will #1 is to take effect.
b. (3) Minority rule: a revoked will cannot be revived unless reexecuted with testamentary
formalities or republished by being referred to in a later duly executed testamentary
writing.
e. UPC § 2-509 Revival of Revoked Will
i. (a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under §
2-507(a)(2) , the previous will remains revoked unless it is revived. The previous will is revived if it is
evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary
or subsequent declarations that the testator intended the previous will to take effect as executed.
ii. (b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under §
2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the
revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the
testator did not intend the revoked part to take effect as executed.
iii. (c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another,
later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The
previous will or its revoked part is revived to the extent it appears from the terms of the later will that the
testator intended the previous will to take effect.
f. Problems p. 262
i. Gift to Charles Black - $1000 gift is valid. T crosses out $1000 and replaces it with $1500, initials and dates.
1. In a state that recognizes holographic wills, does Charles take the $1500? No, b/c the writing in
T’s hand does not follow testamentary formalities, not enough.
2. In a state that does not recognize partial revocation by physical act, does Charles take the $1500?
No, Charles takes $1000 because the attempt at a partial revocation is ineffective.
3. In a state that recognizes partial revocation by a physical act, what does Charles take? The gift is
revoked, so Charles does not get anything. The testator intended to revoke the $1,000 gift. To save
the gift, dependent relative revocation may be available in the jurisdiction because T believes the
revocation and substitution would be effective in giving Charles the gift. Since it is not, the
revocation is void. Revocation was dependent on T’s ability to give Charles $1,500. So, Charles
will receive $1,000.
4. What if T crosses out $1000 and replaces it with $500 or $100? Would dependent relative
revocation be justly applied?
a. The revocation was dependent on his ability to give him the other gift, since it was
dependent on a false hope, the doctrine is applied giving Charles $1000.
b. The court’s choice is $1000 or $0. What would T prefer?
i. DRR turns on a determination by the court that the revocatory act was never
effective because it was premised on a false assumption of what could happen.
The court would probably conclude that this is not a proper case for the
application of DRR and Chuck is out of luck.
ii. T’s will says that $5000 should go to John Boone. T strikes out John and replaces it with Nancy.
1. State recognizes partial revocation by a physical act and holographic wills. Nancy does not get the
money. Does John get the $5000? It depends on dependent relative revocation. John will most
likely get nothing because the gift has been revoked. It is clear T does not want John to get
anything.
2. What if Nancy is John’s daughter and the evidence is clear that T wanted to give Nancy the
money?
a. DRR may be applicable here to suggest that the only reason John’s gift was cancelled was
because John asked T to give the money to Nancy.
g. Problem p. 263
i. T’s will gives $5000 to Judy and the residue of the estate to Mark. Codicil revokes the legacy to Judy since
she is dead. Judy is still living, T was mistaken. Does Judy get the $?
1. DRR applied and the revocation in the codicil is ineffective because the motivation for the change
is stated in the will itself. Therefore DRR would give Judy the money.
ii. What if the codicil says that the gift is revoked because he says he had already given Judy $5000. He has
not given Judy any money at the time of his death. Is DRR applied in this case?
1. There is most likely no room for DRR in this case.
h. Under 2-503 Dispensing power, all these cases would turn out differently.
8. Revocation by Operation of Law: Change in Family Circumstances
a. Rule of property disposition under wills in the case of a divorce (apply only to wills)
i. Majority rule: A divorce revokes any provision in the decedent’s will for the divorced spouse.
ii. Minority rule: Revocation occurs only if divorce is accompanied by a property settlement.
b. UPC § 2-804 Revocation of Probate and Nonprobate Transfers by Divorce; No revocation by other changes of
circumstances.
i. (a) definitions [omitted]
ii. (b) Revocation upon Divorce. Except as provided by the express terms of a governing instrument, a court
order, or a contract relating to the division of the marital estate made between the divorced individuals
before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
1. (1) revokes any revocable (i) disposition or appointment of property made by a divorced individual
to his [or her] former spouse in a governing instrument and any disposition or appointment created
by law or in a governing instrument to a relative of the divorced individual’s former spouse, (ii)
provision in a governing instrument conferring a general or nongeneral power of appointment on
the divorced individual’s former spouse or on a relative of the divorced individual’s former spouse,
and (iii) nomination in a governing instrument, nominating a divorced individual’s former spouse
or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative
capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and
2. (2) severs the interests of the former spouses in property held by them at the time of the divorce or
annulment as joint tenants with the right of survivorship, transforming the interests of the former
spouses into equal tenancies in common. . .
iii. (d) [Effect of Revocation.] Provisions of a governing instrument are given effect as if the former spouse and
relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked
nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former
spouse died immediately before the divorce or annulment. . . .
iv. (f) [No Revocation for Other Change of Circumstances.] No change of circumstances other than as
described in this section and in section 2-803 (dealing with homicide) effects a revocation.
c. Marriage
i. If the testator executes his will and subsequently marries, a large majority of states have statutes giving the
spouse her intestate share, unless it appears from the will that the omission was intentional or the spouse is
provided for in the will or by a will substitute with the intent that the transfer be in lieu of a testamentary
provision.
ii. Where a spouse omitted from a premarital will does not take an intestate share because mentioned in the
will, the spouse may take a forced share of the decedent’s estate, which is given to all spouses whether
intentionally or unintentionally disinherited.
d. Birth of children
i. Minority rule: CL rule that marriage followed by birth of issue revokes a will executed before marriage.
ii. Majority rule: Child statutes give a child born after execution of the parent’s will, and not provided for in the
will, a share in the parent’s estate.
1. Pretermitted child statutes – may include children born before the execution of the will as well as
children born thereafter. If applicable to the testator’s will, the statute results in a revocation of the
will to the extent of the child’s share.
Section C. Components of a Will
*Documents and acts not executed with testamentary formalities that have the effect of determining who takes what property
belonging to the testator.
1. Integration of Wills
a. All papers present at the time of execution, intended to be part of the will, are integrated into the will.
b. Generally
i. Because the pages of a will are physically connected, there is connection of language carrying over from
page to page, etc., there is no problem.
ii. Litigated cases involving integration arise when, for example, the pages are not physically connected and
there is no internal coherence, or there is evidence that a staple has been removed, or one page is typed with
a particular type than the rest of the will.
iii. In re Estate of Beale
1. Testator dictated his will to his secretary in Madison, Wisconsin. His earlier will treated his three
sons equally. In the new will, the testator left all his property to his wife and two of his sons, thus
disinheriting the third. The secretary gave the testator three carbon copies and the original.
Testator took all the sheets with him to NY on his way out of the country. The testator asked three
of his friends to witness the will, they singed the last page. At death, none of the witnesses could
identify any page except the signature page, but all pages of the will had the testator’s initials on
the margin. On the day of the attestation, T wrote his secretary from NY asking her to retype page
12 and 13. The pages were typed by the secretary after T’s death, and, as retyped, they too had the
testator’s initials on the margin.
2. The Court finds that the will should be admitted to probate as it existed before any changes were
made.
2. Republication by Codicil
a. Under the doctrine of republication by codicil, a will is treated as reexecuted (republished) as of the date of the
codicil, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be
inconsistent with the testator’s intent.
i. The doctrine is not applied automatically but only where updating the will carries out the testator’s intent.
b. Possible consequences:
i. T revokes a first will by a second will and T executes a codicil to the first will. The first will is republished,
and thus the second will is revoked by implication.
c. Republication applies only to a prior validly executed will. (Incorporation by reference can apply to incorporate into
a will language or instruments that have never been validly executed). A codicil cannot republish an instrument
never duly executed with the required formalities.
3. Incorporation by Reference
a. UPC § 2-510 Incorporation by Reference
i. Any writing in existence when a will is executed may be incorporated by reference if the language of the
will manifests this intent and describes the writing sufficiently to permit its identification.
b. UPC § 2-513 Separate Writing Identifying Bequest of Tangible Property
i. Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or
list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other
than money, to be admissible under this section as evidence of the intended disposition, the writing must be
signed by the testator and must describe the items and the devisees with reasonable certainty. The writing
may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or
after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing
that has no significance apart from its effect on the dispositions made by the will.
1. Adopted in most states – sensible relaxation of testamentary formalities.
2. Limited to personal tangible property, not choses in action, contract rights, securities, etc.
c. Clark v. Greenhalge, 582 N.E.2d 949 (Mass. 1991)
i. T executed a will in 1977. The executor of the will, Greenhalge, was also the main principal beneficiary, to
whom all of T’s tangible personal property was to go, except those items which she designated by a
memorandum, or in accordance with her known wishes. In 1972, Greenhalge assisted T in drafting a
document entitled “Memorandum” and identified as a lift of items prepared by T for the guidance in the
distribution of T’s personal property. The list was modified in 1976 by interlineations, additions, and
deletions. An oil painting of a farm valued $1,800, is not included in the list. T also kept a notebook which
had a list entitled “List to be given 1979.” The list gave Clark said oil painting. T’s nurses knew of the
existence of the notebook and T had orally expressed to the nurses her intentions regarding the disposition
of particular pieces of property, including the painting. 1980, two codicils were executed which amended
certain bequests and deleted others, always ratifying the unchanged portions of the will. Greenhalge
distributed the property in accordance with the will as amended, the memorandum, and certain provisions
contained in the notebook. Greenhalge, however, refused to give Clark the painted (because he wanted to
keep it). He claims that he is not bound to give effect to the expressions of T’s wishes and intentions stated
in the notebook. Clark commenced an action to compel Greenhalge to deliver the farm scene painting to
her.
1. There is no evidence as to when in 1980 the entry was made giving the gift to Clark. What about
the writing in the notebook? When should the gift have actually been given in the document in
order to incorporate it? Generally, it should have been the actual writing in the notebook giving the
gift that should have been in existence at the time of the codicil.
ii. PH: The probate judge concluded that T’s notebook qualified as a memorandum of T’s known wishes with
respect to the distribution of the property, within the meaning of an article in the will. Thus, the notebook
was incorporated by reference into the terms of the will. This court affirms.
iii. Issue: Whether specific, written bequests of personal property contained in a notebook maintained by a
testatrix were incorporated by reference into the terms of T’s will.
iv. Analysis
1. Rule. A properly executed will may incorporate by reference into its provisions any document or
paper not so executed and witnessed, if it was in existence at the time of the execution of the will,
and is identified by clear and satisfactory proof as the paper referred to there in.
a. T intended by the language used in Article Fifth (incorporating memorandums) of her will
to retain the right to alter and amend the bequests of tangible personal property in her will,
without having to amend formally the will.
b. Distinction between the notebook and a memorandum is illusory.
i. The notebook was in existence on the dates T executed the codicils to her will,
and thus the notebook was incorporated into the will.
v. The case is not decided under the statutory language of UPC § 2- 513. The Common Law requirement to
incorporate by reference is that the writing has to be in existence at the time the will is signed and attested
to, and the will has to clearly show an intention to incorporate the other document in the will.
d. Problems p. 277
i. The writing must be in effect when the will is executed. Under UPC 2-503, the dispensing power would
most likely allow the gift to be granted (intent by T to be part of the will). Under substantial compliance
doctrine, the formalities of execution had been complied with and so it is doubtful that the document would
be given effect.
e. Simon v. Grayson, 102 P.3d 1081 (Cal. 1040)
i. T’s will stated that $4,000 were to be paid to a person as directed in a letter found in his belongings,
addressed to the executors and dated March 25, 1932. After T’s death, a letter dated July 3, 1933 was
found, however, there was no letter dated in March of 1932. The court held that the letter found was the
letter referred to in the will, despite the discrepancy in dates. Since the letter was dated prior to the
execution of the codicil, it complied with the requirement that an incorporated document be in existence on
the date of the republished will.
ii. Note: a document incorporated by reference becomes part of the probate files, open to the public (i.e. no
secret gifts).
f. Note: Incorporation by reference is not recognized in Connecticut, Louisiana, and New York. NY courts have
stretched the doctrines of republication by codicil and integration to carry out T’s intent.
g. Johnson v. Johnson, 279 P.2d 928 (Okla. 1954) – WRONGLY DECIDED
i. Issue: Can a valid, holographic codicil republish and validate a will which was theretofore inoperative
because not dated, signed, or attested according to law?
1. General principle: a codicil validly executed operates as a republication of the will no matter what
defects may have existed in the execution of the earlier document, that the instruments are
incorporated as one, and that a proper execution of the codicil extends also to the will.
2. Note: NY modifies the general rule by holding that a properly executed codicil validates a will
originally invalid for want of testamentary capacity, undue influence, or revocation, but does not
validate a will defectively executed because of improper attestation.
3. A will may be so defective, as here, that it is not entitled to probate but if testamentary in
character, it is a will nonetheless  NOT TRUE
a. A codicil republishes a valid will – if there was never a first publication, there can be
no republication
ii. Holding: The valid holographic codicil incorporated the prior will by reference and republished and
validated the prior will as of the date of the codicil, thus giving effect to the intention of the testator.
iii. Concurrence: The intent expressed by the testator in the written instrument which he prepared, while of
sound mind and disposing memory, is clear and beyond any question of doubt, free from fraud or undue
influence of any kind.
iv. Dissent: A will is to be interpreted by what is found in its four corners and in this case, there is nothing to
indicate that the testator intended it to be anything but one instrument.
4. Acts of Independent Significance
a. If the beneficiary or property designations are identified by acts or events that have a lifetime motive and significance
apart from their effect on the will, the gift will be upheld under the doctrine of acts of independent significance.
b. UPC § 2-512 Events of Independent Significance
i. A will may dispose of property by reference to acts and events that have significance apart from their effect
upon the dispositions made by the will, whether they occur before or after the execution of the will or before
or after the testator’s death. The execution or revocation of another individual’s will is such an event.
c. Acts commonly used
i. Contents of a safe deposit box
ii. Hiring and firing individuals

Section D. Contracts Relating to Wills


• Overview
o A person may enter into a contract to make a will or a contract not to revoke a will.
 Contract law, not will law, applies; i.e., contract beneficiary must sue under the law of contracts and prove a
valid contract
o If after a contract becomes binding, a party dies leaving a will not complying with the contract, the will is probated
but the contract beneficiary is entitled to a remedy for the broken contract
 Possible remedies:
• Constructive trust upon the estate or the successors of the defaulting party
• Specific performance
• Remedy damages $$
o An award to the contract beneficiary of the value of the property which was to come to her
under the contractual will
o An order compelling the decedent’s successors to transfer the property to the contract
beneficiary in accordance with the deceased agreement
1. Contracts to Make a Will
a. Statute of Frauds: to ameliorate problems of proof, contracts to make a will are required (by most states) to be in
writing for it to be enforceable
i. Even if the contract beneficiary is not entitled to enforce the contract because of noncompliance with the
Statute of Frauds, the beneficiary may nonetheless be entitled to restitution of the value to the decedent of
services rendered
b. Problems p. 287
i. T makes a K with A to leave everything to A at death if A will take care of T for life. T executes a will
leaving her estate to A. A changes her mind and decides not to take care for T. T rescinds the K. Is A
entitled to take under the will?
1. Yes, A takes under the will because after the K was rescinded, T could have changed his will.
ii. A dies of AIDS. After A’s death, A’s roommate, B, claims half of A’s estate. B alleges that A promised to
leave B half his estate if B cared for A for his life. B produces a document typed by B and signed by A and
one witness devising one-half of his estate to B.
1. Under UPC 2-514: Ks relating to wills have to be in writing – statute of frauds. The writing must
be signed by the decedent.
a. A contract does not have to be witnessed so the writing is written evidence of the contract
and expresses the terms i.e., half of the estate. The writing is not a will because it must be
signed by the testator and two witnesses.
2. Care taker takes under the will
iii. W promises H to take care of him for his life in consideration of H devising her Blackacre, and H dies,
devising Blackacre to A, is the K enforceable by W? No. There is no consideration because W had a legal
duty to care for H. **Weakness of the observation that a duty to care prevents the spouses from entering a
legal contract.
1. Live-in lover: quantum meruit recovery
2. Stepson: does not rebut presumption that personal services rendered to a decedent by a relative are
gratuitous; quantum meruit claim denied.
2. Contracts Not to Revoke a Will
a. Typical situations
i. Joint will – one instrument executed by two persons as the will of both (i.e., one will for two people)
ii. Mutual will – separate wills of two or more persons that contain similar or reciprocal (mirror-image)
provisions.
iii. Joint and mutual will – joint will in which the respective testators make similar or reciprocal provisions
b. Contract problems
i. Generally, there are no legal consequences peculiar to join or mutual wills unless they are executed pursuant
to a contract between the testators not to revoke their wills
1. If the wills are executed pursuant to a contract between the testators not to revoke their wills
a. Problem: proof of the contract
i. Majority rule: the mere execution of a joint or mutual will does not give rise to a
presumption of contract; a contract not to revoke is unenforceable unless it is
proved by clear and convincing evidence
b. Difficulty: in the case of a joint will, the use of a jointly executed instrument implies an
understanding or agreement and thus invites a claim of contract, the terms of which can be
inferred from the will
i. Some courts find an implied contract in the existence of a common dispositive
scheme in mutual wills
ii. A contract not to revoke a will is breached if, after the contract becomes binding, a party dies leaving a will
that does not comply with the contract
c. UPC § 514 Contracts Concerning Succession
i. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the
effective date of this Article, may be established only by
1. (i) provisions of a will stating material provisions of the contract,
2. (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the
contract, or
3. (iii) a writing signed by the decedent evidencing the contract.
4. The execution of a joint will or mutual wills does not create a presumption of a contract not to
revoke the will or wills.
d. Via v. Putnam, 626 So. 2d 460 (Fla. 1995)
i. Dispute between a decedent’s surviving spouse, who claimed a share of the decedent’s estate under the
pretermitted spouse statute, and the children of the decedent’s first marriage, who claimed that the mutual
wills executed by their parents, naming them residuary beneficiaries of their parents’ estates, gave rise to a
creditor’s contract claim that had priority against the surviving spouse’s claim against the estate. Decedent
did not write a will to benefit his second spouse. Rachel (2d spouse) filed a petition to determine share of
pretermitted spouse and an election to take elective share. The children filed claims against the estate
alleging that, by marrying Rachel, Edgar had breached his contract not to defeat the distribution schedule set
forth in his mutual will by subjecting his assets to the statutes governing homestead property, exempt
property, pretermitted share, and family allowance. Mutual wills are executed pursuant to an agreement not
to revoke.
1. Pretermitted share – will executed prior to marriage that does not provide for the spouse. The
size of the share depends on the state statute. Generally a greater share than the elective share –
testator did not have in mind his spouse whom he would marry after the execution of the will.
2. Elective share – will executed that provides for the spouse. Spouse may choose to take the
elective share instead of the will, if the will leaves a disappointing amount (usually 1/3 of the
estate).
ii. Holding: Florida has a strong public policy concerning the protection of the surviving spouse of the
marriage in existence at the time of the decedent’s death.
1. The children, as third-party beneficiaries under the mutual wills of their parents, should not get
creditor status when their interests contravene the interests of the surviving spouse under the
pretermitted spouse statute.
iii. Fla. Pretermitted statute – share granted to a spouse when marriage takes place after a will was drafted and
the spouse survives the testator. The spouse receives a share equal to the share the spouse is entitled if the
testator had died intestate. Exceptions:
1. provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
2. the spouse is provided for in the will
3. the will discloses an intention not to make provision for the spouse
iv. Analysis
1. Children’s argument: they are third party beneficiaries of the contract between the decedent and
their mother and that they deserve creditor status
a. As creditors, they would have priority over the share of the pretermitted spouse and would
receive the entire estate
2. The legislature did not did not intend to allow creditors’ claims by third-party beneficiaries of
previously executed wills to take priority over the statutory rights of a pretermitted spouse and
deny the pretermitted spouse any share in the decedent’s estate
a. The justification for the elective share and pretermitted spouse statutes is to protect the
surviving spouse of the marriage in existence at the time of death of his or her spouse –
part of the marriage contract
v. Majority rule: third party beneficiaries prevail over the second wife. Theories:
1. The surviving spouse’s marital rights attach only to property legally and equitably owned by the
deceased spouse, and the will contract entered into before the marriage deprives the deceased
spouse of equitable title and places it in the contract beneficiary
2. When the surviving testator accepts benefits under the contractual will, an equitable trust is
impressed upon the property in favor of the contract beneficiaries, and the testator is entitled to
only a life estate in the property with the remainder going to the beneficiaries upon the testator’s
death
3. when the surviving testator accepts benefits under the contractual will, the testator becomes
estopped from making a different disposition of the property, despite any subsequent marriage
4. When the surviving testator breaches the will contract, the contract beneficiaries are entitled to
judgment creditor status, thus giving them priority over the rights of the surviving spouse under the
applicable state probate code.
3. What does the surviving spouse own in respect to the contract not to revoke a will?
a. What constitutes breach of contract (delivery of property to the children)?
i. The right to consume the property as necessary to their accustomed standard of living. Beyond that, there is
a question as to what rights the person has in giving the property to someone.
ii. Is the surviving spouse limited in lifetime uses of the property after the death of the other spouse?
iii. Does the contract cover property that comes to the surviving spouse’s estate after the death of the other
spouse?
1. Outside gifts, etc.

CHAPTER 5 NONPROBATE TRANSFERS AND PLANNING FOR INCAPACITY

Section A. An Introduction to Will Substitutes


1. Overview – Pass title of property, just like a will, but during lifetime you can revoke, recover, waste the asset, but when you
die, you have in place a vehicle to transfer whatever property is then available under the instrument to someone else.
2. John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession
a. Will substitutes
i. Life Insurance
ii. Pension Accounts
iii. Bank, brokerage, and mutual fund accounts
iv. The revocable intervivos trust
v. Imperfect will substitutes
1. True joint tenancy in real estate - joint tenant immediately becomes owner of one-half of the value
of the property (current 1/2 interest). The other half interest will evaporate on the death of the first
joint tenant to die. There is no transfer of the interest from the decedent to the survivor.
b. Hidden Causes of nonprobate revolution

Section B. Revocable Trusts


1. Introduction
a. Farkas v. Williams, Illinois (1955)
i. Farkas purchased stocks pursuant to a trust, issued to Farkas as trustee for Williams.
ii. Was the transfer in the trust testamentary?
iii. Intervivos revocable trusts are valid and Williams succeeds to the ownership of the stock
iv. Analysis
1. Whether upon execution of the so-called trust instruments defendants Williams acquired an interest
in the subject matter of the trusts, the stock of defendant Investors Mutual, Inc.
a. An interest passed to Williams during his lifetime, so it is not a testamentary transfer.
b. Something did pass because so long as Farkas was arrived and the trust had not been
revoked, Williams had a right to ask Farkas to observe his fiduciary duties.
i. Farkas could not give the stocks away
2. Whether Farkas, as settlor-trustee, retained such control over the subject matter of the trusts as to
render said trust instruments attempted testamentary dispositions.
b. In re Estate and Trust of Pilafas – Decedent executed a will and a trust with certain beneficiaries, after his death
neither the will nor the trust could be found. Trust had been funded during his lifetime.
i. I: Will and trust revoked? Presumed revoked by the testator if not found.
ii. H: Trust not revoked even if not found. Presumption that will had been revoked did not apply to trust. Trust
said that it could be revoked by written instrument delivered to trustee, but did not say this was the only
way. Assets in will pass by intestate succession.
iii. Restatement (3d) of Trusts – A revocable trust may be revoked, “Absent contrary provision in the terms of
the trust, . . . in any way that provides clear and convincing evidence of the settlor’s intention to do so.”
iv. If will and trust are found ripped up, then this is enough to infer a revocation of the trust.
c. State Street Bank & Trust Co. v. Reiser- Whether assets used in a will substitute should be available to satisfy
creditor’s claims? Yes, the man could have used the assets for his own benefit during his lifetime.
d. The purveyors of revocable trust instruments make the claim that the revocable inter vivos trust assets are out of
reach of creditors are liars. They argue this as part of their sales pitch.
2. Pour-Over Wills
a. Overview
i. Basic pour over will
1. O sets up a revocable inter vivos trust naming X as trustee. O transfers to X, as trustee, his stocks
and bonds. O then executes a will devising the residue of his estate to X, as a trustee, to hold under
the terms of the intervivos trust.
2. O wants to establish an inter vivos trust of some of his assets and wants to merge after his death his
testamentary estate, insurance proceeds, and other assets into a single receptacle subject to unified
trust administration.
ii. Theories for the validity of pour over wills
1. Incorporation by reference
a. A will can incorporate by reference a trust instrument in existence at the time the will is
executed, but it cannot incorporate trust amendments made after the will is executed.
i. Problems: probate items will be distributed under the terms set forth on the trust
at the time of the execution of the will OR if this would not be in accordance with
the testator’s intent, such items would pass by intestacy.
b. Requires that the trust instrument be in existence at the time the will is executed
2. Independent significance
a. A will may dispose of property by referring to some act that has significance apart from
disposing of probate assts – ie., by reference to an inter vivos trust that disposes of assets
transferred to the trust during life
b. The trust instrument does not have to be in existence when the will is executed, but the
trust must have some assets in it before the time of the testator’s death
c. Requires that the inter vivos trust have some property transferred to it during life, which
the trust disposes of.
3. Most states have a statute permitting a will to pour over probate assets into an inter vivos trust as
amended on the date of death, even if that trust had not otherwise been funded.
b. UPC § 2-511 Testamentary Additions to Trusts
i. (a) A will may validly devise property to the trustee of a trust established or to be established (i) during the
testator’s lifetime by the testator and some other person, or by some other person, including a funded or
unfunded life insurance trust, although the settler has reserved any or all rights of ownership of the insurance
contracts, or (ii) at the testator’s death by the testator’s devise to the trustee, if the trust is identified in the
testator’s will and its terms are set forth in a written instrument, other than a will, executed before,
concurrently with, or after the execution of the testator’s will or in another individual’s will if that other
individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the
trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was
amended after the execution of the will or the testator’s death.
ii. (b) Unless the testator’s will provides otherwise, property devised to a trust described in subsection (a) is
not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised,
and must be administered and disposed of in accordance with the provisions of the governing instrument
before or after the testator’s death.
iii. (c) Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s
death causes the devise to lapse.
c. Uniform Testamentary Additions to Trusts Act (UTATA)
i. As originally drafted, it validated a pour-over of probate assets into an inter vivos trust only if the trust
instrument was executed before or concurrently with the will.
1. No requirement that some property be transferred to the inter vivos trust during life.
2. If the trust instrument was executed before or concurrently with the will, the probate assets could
be poured over into the intervivos trust as subsequently amended
3. the trust funded at death by the pour over was treated as an inter vivos trust- as having come into
existence before the testator’s death.
ii. 1990 revisions
1. Delete the requirement in the original act that the trust instrument be executed before or
concurrently with the will (thus, the trust instrument may be executed after the will.
d. Notes
i. Property acquired after the creation of a trust/will
1. After the creation of a will, any property acquired may be disposed of by the will.
2. A revocable trust, however, can dispose only of property transferred to the trust during life, and a
settler cannot transfer to the trust property the settler does not have.
3. An inter vivos trust solves this problem because the property does not transfer to the trust until the
death of the settler/testator, therefore, all property acquired by that date is transferred by the will
into the trust.
ii. Clymer v. Mayo (Mass 1985)
1. T executed a will in 1963 designating her husband James as the primary beneficiary. In 1964, she
named James as the beneficiary of her life insurance policy. In 1965, she made him beneficiary of
her retirement plan. In 1973, T executed a new will and a new revocable trust. Under the new will,
the bulk of the estate was to pour over into the new revocable trust. James was the principal
beneficiary under the trust. T and James divorced in 1978. T died in 1981.
2. Issues
a. Is the trust valid?
i. If yes, James would take as the named beneficiary. If no, the devise would fail
and Clara’s parents would take as intestate heirs.
ii. Under traditional principles, the trust must contain property, known as res, to be
valid.
iii. The UTATA validates unfunded trusts that are intended to be funded by a pour-
over will if the trust agreement is executed before the testator’s death. Therefore,
the trust was valid even though unfunded. Alternatively, the court held that the
trust did have a res, namely, the right to receive the insurance and pension plan
proceeds.
b. Was James’ interest in the trust revoked as a result of the divorce?
i. Whether the statute revoking an ex-spouse’s interest under T’s will should be
applied to the inter vivos revocable trust?
1. Yes. T’s will and trust were integrally related components of a single
testamentary scheme. The husband’s interest in the trust was revoked
by operation of the statute at the same time the interest under the will
was revoked.
2. Generally, there is a rebuttable presumption that upon divorce, the ex-
spouse’s interest in a will is revoked. It must be proved by the
contesting party that there is express contrary intent.
iii. Terms
1. Unfunded life insurance trust
a. Settlor names the trustee of the inter vivos trust as the beneficiary of her life insurance but
does not add any other funds or assets to the trust
i. treated as a valid inter vivos trust
b. When coupled with a will pouring over probate assets into the trust is one means of
creating a unified trust of both life insurance proceeds and probate assets – results in an IV
trust
2. Funded inter vivos trust
a. Settlor adds other assets to the inter vivos trust.
iv. Revocation by divorce
1. Statutes in sme states provide that divorce revokes any provision in a revocable trust for the ex-
souse, who is deemed to have predeceased the settler.
2. UPC § 2-804 provides that divorce revokes dispositions in favor of the divorced spouse in
revocable inter vivos trusts as well as in other will substitutes such as life insurance, pension plans,
etc.
a. Limited by Egolhoff, which holds that federal law preempts the applicability of state
revocation-on-divorce statutes to federally regulated pension benefits.
3. Use of revocable trusts in estate planning
a. Introduction
i. Creation of a revocable trust
1. By a declaration of trust
a. Settlor becomes the trustee of the trust property. He names a successor trustee to take
over upon the settlor’s death or incompetence
i. Where the trust is to end on the settlor’s death, and the trust is merely a means of
avoiding probate, the death beneficiary should ordinarily be named successor
trustee
b. At settlor’s death, the successor trustee automatically takes over, without a court order,
and distributes the property to the trust beneficiaries.
2. By a deed of trust
a. A third party is named as trustee
i. Settlor can be a co-trustee
b. A revocable trust can be funded or the trust can be unfunded
ii. Distribution at settlor’s death
1. May be set out by the trust
2. The trust may provide the main vehicle for the disposition of the settlor’s estate, either outright or
in further trust after his death; assets in the settlor’s probate estate can be poured over into the
revocable trust to bring about a uniform disposition of the settlor’s assets
3. If uniform control of assets is desired during life, the settler can change all the beneficiary
designations on the settlor’s nonprobate assets to make them payable to the revocable trust and also
execute a will pouring over all probate assets to the revocable trust.
a. The revocable trust, with amendments, functions as a will did in the days before the
proliferation of will substitutes.
b. Consequences During Life of Settlor
i. Property management by fiduciary
1. Third party trustee may be selected to manage a funded revocable trust
2. A revocable trust continues during the settlor’s incapacity and can provide for disposition of the
trust assets at the settlor’s death
a. Custodianships accounts for securities and other assets terminate on the death or disability
of the principal
3. Possible inconveniences
a. Sale or mortgage of the property:
i. Banks and transfer agents may want to see copies of the trust instrument to
determine whether the trustee has power to engage in the transaction
ii. It is more difficult when title to the property is in a trustee than when the title is
in a private individual.
ii. Keeping title clear
1. A revocable trust is useful in keeping separate and apart property that a husband and wife, or both,
want not to be commingled with their other assets. A husband and wife any want to establish
separate revocable trusts of property that each brings to the marriage or acquires by inheritance.
iii. Income and gift taxes
1. Assets in a revocable trust are treated as still owned by the settler and not as a completed gift to the
beneficiaries under the federal gift tax
2. Therefore, trust income is taxable to the settler regardless of to whom it is paid
3. There are NO federal tax advantages in creating a revocable trust
iv. Dealing with incompetency
1. A revocable trust can be used in planning for the contingency of incapacity. The settler may be a
co=trustee, with the trust instrument providing that either trustee alone may act on behalf of the
trust. OR the trust instrument may provide that the other co-trustee shall act as sole trustee if the
settler becomes incompetent.
a. Alternative: durable power of attorney
c. Consequences at Death of Settlor: Avoidance of Probate
i. Costs
1. Assets in a trust avoid probate because the legal title passes to the trustee and there is no need to
change the title to the trust assets by probate administration on the settlor’s death.
2. Trustee’s fees – generally considerably smaller than court costs, attorney’s fees, and executor’s
commissions incurred in probate
3. Lawyer’s fees – a revocable trust is generally more expensive than a will, especially when there are
pour over clauses, etc.
4. Miscellaneous fees – transfer of ownership fees of stocks and other securities
ii. Delays
1. Time to distribute assets
a. Probate of a will and distribution of assets takes 18 to 24 months
b. Income and principal under a revocable trust can be distributed more quickly
2. Administration of assets before distribution
a. Executors are restricted to purchasing very safe investments
b. Trustees are viewed as managers governed only by the prudent investor rule
i. Rules are more liberal and thus it is simpler for a trustee rather than an executor
to deal with han ongoing business in the form of a partnership or sole
proprietorship, and for a trustee to exercise options, borrow money, and
participate in reorganizations
iii. Creditors
1. Wills
a. Short term statute – requires creditors of decedent to file their claims within a period fixed
by statute. If the creditors fail to do so, they are forever barred.
2. Revocable trusts
a. No short term statute
b. The period within which a creditor may file a claim depends on the type of each claim
each creditor has.
i. Possible problem: for doctors or attorneys who may be subject to malpractice, the
will holds an advantage over the revocable trust.
iv. Publicity
1. Revocable trusts are private and therefore never become matters of public record. Especially
desirable to persons seeking secrecy.
v. Ancillary probate
1. If the settler owns real property outside the domiciliary state, any will passing title to that property
must be probated in the state where the land is located.
2. Transferring property through an inter vivos trust, the land transfers while avoiding probate
because the transfer is effected before decedent’s death.
vi. Avoiding restrictions protecting family members
1. Elective shares for spouses – does not extend by statute to revocable trusts created by the decedent
spouse
a. Many courts, in equity, extend the statute, thus preventing settler from disinheriting a
spouse.
b. A funded revocable trust may be used to put assets beyond the reach of a child born out of
wedlock, protected by a pretermission statute, whom the client does not wish to mention
in his will. Pretermission statutes apply only to probate property.
vii. Avoiding restrictions on testamentary trusts
1. A testamentary trust is created by a will and comes into being by an order of the probate court that
supervises the administration of the estate, and in many states this court continues to supervise the
administration of the testamentary trust after the estate is closed.
2. The trustee may have the duty to account to the court
a. The will may have a provision relieving the court of this duty but the court is not under
obligation to uphold the provision.
3. In some states, a nondomiciliary bank or a nonresident person cannot serve as a testamentary
trustee under the will of a testator who was a domiciliary of the state.
a. By contrast, a settler of an inter vivos trust can name as trustee a person or a bank in
another state.
b. Where the beneficiaries reside in another state, the settler may wish to appoint a trustee in
their state, particularly where the trustee is given discretionary powers that can be soundly
exercised only on the basis of personal contact with the beneficiaries.
viii. Choosing the law of another jurisdiction to govern
1. The settlor of an intervivos trust of personal property may choose the state law that is to govern the
trust. (If the trust is in land, the law of the land where the land is located governs.)
a. The settlor may choose the law of the domicile of the settler or of the beneficiaries, or the
law of the state where the trust is administered.
b. The settler of an inter vivos trust can create a trust in a state that has the most permissive
period of perpetuities
c. A testator may not have this freedom of choice.
2. UPC § 2-703 changes the old law and provides that the testator may select the state law to govern
the meaning and legal effect of his will, including trusts created by will, unless that law is contrary
to the domiciliary state’s law protecting the surviving spouse or any other public policy of the
domiciliary state.
ix. Lack of certainty in the law
1. Where a revocable trust is used as a substitute for a will, the law may be more uncertain in solving
a problem that arises than it would be in case of a will.
a. Wills rules developed over the centuries may or may not apply to revocable trusts.
x. Avoiding will contests
1. A revocable trust can be contested for lack of mental capacity and undue influence. In practice, it
is more difficult to set aside a funded revocable trust than a will on these grounds.
a. The heirs of the decedent are not entitled to see the trust instrument, which is not a public
document but a private document available only to the trust beneficiaries
b. If a trust continues as an ongoing operation for several years, sales of assets and
reinvestments, a jury or a court will be reluctant to set the trust aside.
xi. Estate taxation
1. There are no significant federal advantages to a revocable trust. The assets of a revocable trust are
included in the gross estate of the settler.
xii. Controlling surviving spouse’s disposition
1. Spouses can create a revocable trust of their property, to be come irrevocable upon the death of one
spouse.
a. Particularly useful for second marriages or couples that have children from prior
marriages.
b. Preferable to trying to control the surviving spouse’s disposition by contract.
xiii. Custodial trusts
1. Statutory custodial trust
a. Terms are set out by statute and are not flexible
b. The statutory trust is created for the support of the beneficiary.
i. Someone other than the beneficiary must be named trustee
c. Until the beneficiary is incapacitated, the trustee must pay so much or all of the trust
property as the beneficiary directs.
d. If the beneficiary becomes incapacitated, the trustee may use the trust property for the
support of the beneficiary and for the beneficiary’s dependents/
2. Upon the death of the beneficiary, the trust terminates and the trust assets are transferred to the
persons designated by the beneficiary in a written document delivered to the trustee.
3. A custodial trust is better than a guardianship upon a person’s incapacity.
d. Note: Marketing of Living Trusts

Section C. Life Insurance, Pension Accounts, Bank Accounts, and Other Payable-On-Death Arrangements
1. Life insurance
a. Overview
i. Purpose: shift the financial risk of dying young to an insurance company.
1. Experts recommend purchasing life insurance totaling at least six to ten time the annual income of
insured.
2. Life insurance is also commonly purchased to protect a partnership or closely held corporation,
either by giving the partnership or corporation enough money to buy out the decedent’s share, or by
giving the decedent’s family enough case to pay the estate taxes on the business without having to
liquidate it.
ii. Types
1. Whole life insurance or ordinary/ straight life insurance
a. Combination product involving both life insurance and a savings plan.
i. The insured is covered for his entire life
b. In most policies, after many years the policies become paid up or endowed, after which no
further premiums are owed.
i. These policies include a forced savings feature.
2. Universal life or variable life insurance
a. Combine life insurance with a savings account but allow more investment options or
greater flexibility.
b. Premiums remain fixed at the same amount throughout the time they are payable
3. Term life insurance
a. Pure insurance – no savings feature. No cash surrender value.
b. If insured dies during the term of the policy, a stated sum is payable to the designated
beneficiary.
c. Provides an optional renewal of insurance coverage for an additional term without regard
to the insured’s state of health at the time of renewal.
d. Other features (note)
i. Because it is more affordable than other forms of life insurance, it is often an
especially sensible option for young couple who have children
ii. If the term policy includes a conversion option whereby it can be made more
permanent, it protects the insured against the inability to obtain insurance in the
future, after the policy would have other wise expired, if the insured’s health
declines.
iii. Settlement options
1. the owner of the life insurance policy or the beneficiary may select different options for the receipt
of death benefits
a. i.e., (1) a lump sum payment, (2) an annuity for the rest of beneficiary’s life, (3) interest
for years followed by payment of the principal, (4) periodic payments of interest and
principal
iv. Wilhoit v. Peoples Life Insurance Co. (7th Cir. 1955)
1. T received the benefit of a life insurance in the amount of $5,000. She executed a written
instrument acknowledging the receipt of the payment amount and the termination of all claims
under the policy. Thereafter, T directed the insurance company that the proceeds of the money
should be held in trust by the insurance company, all proceeds payable to Robert G. Owens. The
insurance company accepted the terms of T. The beneficiary predeceased T in this case. T left a
last will and testament which designated as the beneficiary of the trust, Robert Wilhoit. The
company refused to recognize the claim to the fund made by Robert Wilhoit, the legatee named in
the will of T and the P in the instant action. Thomas Owens claimed the fund as the legatee under
the will of Robert G. Owens. The court granted the P his summary judgment motion for the
balance of the insurance amount.
2. Defendant’s claim
a. Agreement between T and insurance company was an insurance contract or a contract
supplemental thereto
i. (1) the rights of the parties must be determined by the law of insurance and not
by the statute of wills
ii. (2) T as a primary beneficiary named Robert Owens as the successor beneficiary
irrevocably, without right to revoke or change and without a pre-decease of
beneficiary provision, and that as a result the rights of such successor beneficiary
upon his death prior to the death of the primary beneficiary did not lapse but
passed on to the heirs and assigns of such successor beneficiary.
3. Plaintiff’s argument
a. The disposition of the fund is not controlled by the law of insurance because the
agreement between T and the company was not an insurance contract or a supplement
thereto but was nothing more than a contract of deposit and that in the even of her death
was an invalid testamentary disposition. Moreover, any interest acquired by Owens was
extinguished upon his death, which occurred prior to T.
4. Holding
a. The arrangement between the parties was the result of a separate and independent
agreement, unrelated to the terms of the policy.
5. Analysis
a. The investment provision was an offer by the company which T rejected by accepting its
proceeds and signing the letter acknowledging the receipt and surrendering further claims
under the policy. Twenty-three days later, she made her own proposal to the company
which differed materially from the initial company offer.
b. The agreement was neither an insurance contract nor an agreement supplemental thereto.
i. The condition in the contract was that the proceeds would only go to Owens upon
her death.
c. Intention of the parties
i. T did not intend that the fund go to the successors of Owens but that after his
death she thought she had the right to dispose of the fund as she saw fit, as is
evidenced by the specific bequest contained in her will.
6. Court action
a. The Court struck down a payable-on-death designation in a contract of deposit
because it was a testamentary act not executed with the formalities required by the
Wills Act.
b. The Court follows the traditional rule, that POD designations in many contracts other than
life insurance are invalid.
v. Estate of Hillowitz (NY 1968)
1. Hillowitz had been a partner in an investment club, and after his death, the club, pursuant to a
provision of the partnership agreement paid the widow the amount of the interest in the partnership.
2. Executors of the will claim that the provision was an invalid attempt to make a testamentary
disposition of property and that the proceeds should pass under the decedent’s will as an asset of
his estate. The widow contends that it was a valid and enforceable contract.
3. PH: Surrogate court held in favor of the widow. The Appellate division held that the agreement
was invalid as an attempted testamentary disposition of property.
4. Analysis
a. The devise in the partnership agreement is the same as a partnership agreement that
provides, upon the death of a partner, that his interest shall pass to the surviving partner or
partners, resting as it does in contract.
b. The partnership undertakings are nothing more or less than third party beneficiary
contracts, performable at death and therefore need not conform to the requirements of the
statute of wills.
vi. Family Limited Partnership
1. D transfers assets to the partnership in exchange for a limited partnership interest. The decedent’s
family likewise transfers assets to the partnership in exchange for limited partnership interest. The
general partner is a corporation owned by the decedent and his family.
a. When D’s limited partnership interests pass to his family, the value of those interest are
discounted for estate tax purposes because of their lack of control rights and non
marketability.
b. UPC § 6-101 Nonprobate Transfers on Death
i. (a) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond,
mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement,
deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan,
trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is
nontestamentary. This subsection includes a written provision that
1. (1) money or other benefits due to, controlled by, or owned by a decedent before death must be
paid after the decedent’s death to a person whom the decedent designates either in the instrument or
in a separate writing including a will, executed either before or at the same time as the instrument
or later;
2. (2) money due or to become due under the instrument ceases to be payable in the even of death of
the promisee or the promisor before payment or demand; or
3. any property controlled by or owned by the decedent before death which is the subject of the
instrument passes to a person the decedent designates either before or at the same time as the
instrument, or later.
ii. (b) This section does not limit rights of creditors under other laws of this State.
iii. UPC § 6-706: Antilapse provision for P.O.D. designations which substitutes the issue of the named
beneficiary who does not survive the benefactor.
c. Notes
i. Dead beneficiaries
1. In the law of wills, a devise is required to survive the testator in order to take; if the devisee
predeceases, the gift lapses.
ii. Naming beneficiaries in will different from those in policies
1. Majority Rule: Cook v. Equitable Life Assurance Society (Indiana 1981)
a. Cook purchased a whole life insurance policy naming his wife as beneficiary. He
thereafter divorced her and remarried. He had a son in the second marriage. He never
changed the name of the beneficiary in the life insurance policy although he did change
his will to reflect his desire that his new wife and son should be the beneficiaries of the
policy.
i. Term life insurance – payment of insurance premiums are required
ii. Whole life insurance – insurance component like term policies and a savings
feature so that as a premium is paid it goes toward the insurance and an amount
goes into savings. If a persons stops making insurance payments, the insured has
the right to withdraw the money from the savings account – lump sum of cash
accruing
b. The court finds that compliance with the insurance policy is a requirement to taking under
a POD insurance policy. Due diligence in changing the beneficiary name rests on the
owner of the policy.
iii. Superwills
1. Would annul the beneficiaries named in various nonprobate instruments and name a new
beneficiary.
2. Pension Accounts
a. Overview
i. John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission
1. Generally, pension funds are composed almost entirely of financial assets—the instruments of
financial intermediation—that distinctively modern form of property that was still of peripheral
importance in the last century.
2. The Enhancement of Life Expectancy
a. Life expectancy increases along with the shift in the nature of wealth (from property to
financial interests) require a different approach to savings and being prepared for old age.
3. Pension Wealth
a. Tax incentives (tax-qualified pension plan)
i. (1) Most contributions to the plan are tax-deferred.
ii. (2) Earnings on qualified plan investments accrue and compound on a tax-
deferred basis.
iii. (3) Because most retirees have lower taxable income in their retirement years
than in their peak earning years, they find that distributions from pension
accounts are usually taxed at lower marginal rates.
4. Annuitization Eliminates Succession
a. Pension system was deliberately designed to promote lifetime exhaustion of the
accumulated capital
b. Annuitization
i. Allows people to consume their capital safely, without fear of running out of
capital while still alive
ii. Requires a large pool of lives, which is achieved by various methods of
aggregating the pesion savings of many workers.
iii. Requires assets that can be liquidated predictably as distribution requires
1. Mostly financial assets
iv. Accounts that have been annuitized disappear on the death of their annuitants.
ii. Notes
1. Annuities
a. Payment every year for the rest of the beneficiary’s life.
b. Shifts the financial risk of living too long to a pension fund or insurance company
i. Those who die younger pay for those who die older.
2. Defined benefit plan – the employer promise to pay an annuity on retirement
a. The benefit from the pension is determined by the length of time an employee has worked
for the employer and the amount of salary the employee received. Typically, the salary
component is computed by a specific formula based on the top five salaries in the previous
ten years. That component is multiplied by the length of time the person was employed.
3. Defined contribution plan – both the employee and the employer make contributions to a
specific pension account for the employee.
a. Employee are family are entitled to all the accumulation in this account, therefore these
plans often lead to lump-sum payouts on the death of the worker and her spouse.
b. Employee or employer deposit into a separate account for each employee an amount each
year of employment. The employee is accumulating a savings account based on the
annual additions into the employee’s defined contribution plan so that when the employee
retires, he may elect to take a pension. The amount of pension they are entitled to depends
on how much is in the account and how much of a pension can be purchased for how
much is in there
c. Most have a provision such that if the employee dies early, whatever balance is left will be
paid to a beneficiary
b. Does ERISA (federal regulation of pension plans) preempt the applicability to them of the state subsidiary law of
wills?
i. Egelhoff v. Egelhoff, 532 U.S. 141 (2001)
1. Facts
a. Statute: Washington statute provides that the designation of a spouse as the beneficiary of
a nonprobate asset is revoked automatically upon divorce
b. Decedent Egelhoff’s employer provided him with a life insurance policy and a pension
plans. Both were governed by ERISA and D’s wife was designated as the beneficiary. In
1994, the Eggehoffs divorced. The decedent died intestate. The ex-wife remained the
listed beneficiary under both plans. The proceeds were paid to her. Respondents are
Egelhoff’s children by a previous marriage and his statutory heirs under the law. They
sued to recover the insurance proceeds.
c. ERISA provision: ERISA “Shall supersede any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan” covered by ERISA.
2. Issue
a. Whether ERISA pre-empts the state statute to the extent it applies to ERISA plans? Yes.
3. Holding: The statute is expressly pre-empted by ERISA.
4. Analysis
a. Rule: State law relates to an ERISA plan if it has connection with or reference to such a
plan.
i. State statute has an impermissible connection with ERISA plans
1. The statute binds ERISA plan administrators to a particular choice of
rules for determining beneficiary status
ii. State statute interferes with nationally uniform plan administration
iii. Congressional intent was to minimize the administrative and financial burdens on
plan administrators
iv. Lack of uniformity
b. Response to respondents’ arguments
i. Clear Congressional Intent
ii. Common Law traditions may create exemptions to ERISA preemption
5. J. Breyer, dissent
a. The main goal of ERISA is to develop a fair system for protecting employee benefits
i. The ex-wife in this case got a larger share of D’s property than she would have
received otherwise (the property she received through the divorce settlement).
b. While the court makes a decision only regarding revocation by divorce, the doctrine is
bound to extend to other areas such as slayer statutes.
3. Multiple-Party Bank and Brokerage Accounts
a. Bank and brokerage accounts:
i. Joint and survivor account
ii. POD account
iii. Agency account
iv. Savings account trust or Totten trust
v. *Note* - if one form of account is intended in a state that does not allow them, the survivor is not entitled to
the proceeds in the account, which belong instead to the depositors estate.
b. Franklin v. Anna National Bank of Anna (Ill. 1986)
i. D’s attempts to change the account show his consistent view of the account as his own. The surrounding
circumstances show decedent’s concern for his health and his relatively brief use of Mrs. Goddard to assure
his access to his funds. The money in the account should have been found to be the property of the estate.
1. Depositor did not intend to create survivor benefits in the account. Deceased meant to have a
convenience account only – the other person on the account had the right to write checks, etc. but
no other right.
Section D. Joint Tenancies in Realty
1. A joint tenancy – two or more people own the property in a manner such that when one of the owners dies, that owner’s
interest in the property terminates and the ownership of the property then continues in the surviving joint owner or owners.
There is no actual transfer of property at the death of one of the joint tenants. Any kind of property can be held in joint
tenancy unless some statute has made some other kind of provision for the holding of that property (usually in real property)
a. Features
i. (1) The creation of a joint tenancy in land gives the joint tenants equal interest upon creation
ii. (2) A joint tenant cannot devise her share by will
1. If a party wants to convey her share at death, she must sever the joint tenancy during life,
converting it into a tenancy in common (can be severed any time by any of the tenants creating a
tenancy in common). Reasons:
a. (a) Nature of the reciprocal form of ownership
b. (b) The vanishing theory of the common law – no property actually passes when a joint
tenant dies. Instead, the decedent’s interest vanishes at death and the survivor owns the
whole interest.
2. If a joint tenant could devise his share, the property would be subject to litigation to determine the
validity of the will and whether the made a disposition of the joint tenancy of the property.
iii. (3) Creditors: a joint tenant must seize the joint tenant’s interest during life.
b. Exceptions to the rule
i. Bank accounts
1. The difference in bank account joint tenancies is that the creation of a bank account joint tenancy
does not create in the joint tenants equal undivided ownership of the balance in the bank account.
a. The creator of the account continues to own the entirety of the bank account until the other
person withdraws from the account without obligation to withdraw with the joint tenant’s
permission. Amount of money in the account belongs to the person who put it there in the
first place
i. There is no gift upon the creation of the joint tenancy account
b. The only interest available to the joint tenant, not the depositor, is the money at the death
of the primary holder of the account.
c. Should be avoided except between spouses
d. If a joint tenancy is created with someone not your spouse, the asset is put at risk from creditors of the child. The
child is entirely responsible
i. unintended creditor – judgment creditor may look to real property
e. Tenancy by the entirety
i. Can only exist between spouses
Section E. Planning for Incapacity
• Why is this a problem?
o Increasing life spans and increasing occurrence of mental and physical incapacity
1. The Durable Power of Attorney
a. Ordinary power or attorney
i. Creates an agency relationship whereby the agent, called an attorney-in-fact, is given a written authorization
to act on behalf of the principal
ii. Agent’s authority terminates on the principal’s incapacity.
b. Durable power of attorney – Agency relationship
i. Continues throughout the incapacity of the principal until the principal dies
1. The principal, if competent, can terminate the agency and durable power at any time
2. Permitted by UPC §§ 5-501 and 5-505 and by statutes in all states
3. Specific language is required in the instrument expressing the intent of the principal that the power
not terminate upon incapacity
ii. Creation
1. Written instrument, state statute may require the document to be witnessed or notarized
a. Tailored to the wishes of the client
2. Statutory short form – incorporating by reference statutory powers given the agents
iii. Controlled by the common law of agency
1. Fiduciary duties of loyalty, care, and obedience
c. Holder of a durable power
i. Differences from a trustee power
1. (1) A durable power ceases when the principal dies; holder cannot make any transfers after the
principal’s death
a. A durable power does not avoid probate. A trust does avoid probate because it continues
after the settlor’s death.
2. (2) If an agent dies, the power terminates unless a successor agent is named by the principal. If a
trustee dies, a successor trustee is appointed by a court.
3. (3) A trustee has title to the trust assets and generally has all the powers the owner has. An agent
does not own the property and agency law sparingly implies powers and strictly construes express
powers
a. Trusts are generally more flexible.
d. Problems
i. Powers of attorney are handy for people who may abuse the power of their agency that many financial
institutions are unwilling to recognize their validity.
e. Franzen v. Norwest Bank Colorado (Colo. 1998)
i. Husband established a trust and named Norwest Bank as the trustee. The main beneficiary was the wife.
Under the terms of the trust, W had the rights within three months of H’s death to terminate the trust and
receive the proceeds. She decided not to terminate the trust. W’s brother moved W to a nursing home close
to where he lived and asked the bank to turn over W’s assets to him. The bank becomes concerned about
the assets of W that were not in the trust. The bank filed a petition for instruction and advice in the probate
court. W’s brother sent a power of attorney to the bank which authorized him to remove the bank as trustee.
ii. The probate court ruled that the power of attorney had created a valid agency but that the trust had not been
revoked because there was no specific provision in the power to do so.
1. Bank argued that the statute codified the common law that specific power to do particular actions
i.e. revoke a particular trust, etc.
2. Generally prevailing common law is that the specific power to revoke a particular instrument does
not have to be explicit in the power.
iii. The court held that
1. the terms of the power of attorney need only evidence an intention to authorize the agent to make
decisions concerning the principal’s interest in trusts generally, not necessarily a particular trust.
The power of attorney in this case appears to give the agent sweeping powers to dispose of the
principal’s property to be narrowly construed in light of the circumstances surrounding the
execution of the agency instrument.
f. Law of ademption
i. When the devised property is not owned by the testator at death, the devise is adeemed and the devisee takes
nothing. (i.e., a house is devised by will to A but T sells it to B, at T’s death, A’s gift simply extinguishes.)
g. Under the federal estate tax, inter vivos transfers by the decedent which the decedent retains the power to revoke are
included in the decedent’s taxable gross estate.
i. Express authorization must be given to make gifts in the power of attorney, if the donor so desires.
h. Uniform Power of Attorney Act
i. Replaces the term attorney-in-fact with the simpler term agent.
ii. Also provides
1. (1) all powers of attorney are durable unless the instrument states otherwise (thus reversing the
current default rule), and
2. (2) the agent will not have the power to amend or revoke trusts or give away the principal’s assets
without express authorization to do so
2. Directives Regarding Health Care and Disposition of the Body
a. Advance Directives: Living Wills, Health Care Proxies, Hybrids
i. Supreme Court holding: each person has a constitutional right to make health care decisions, including the
right to refuse medical treatment
ii. Living wills:
1. Signed with testamentary formalities and gives directions that the person does not want to be put on
life sustaining measures. It is generally binding on providers of medical care – problems: medical
provider does not know there is living will. Completely ineffective if it is not communicated
iii. Power of attorney for health care
1. Provides an agent for the purpose of giving instructions (binding) on providers of health care in
regards to what medical procedures you are to receive.
a. Substituted judgment standard – what the patient has chosen or would have chosen in that
situation
b. Responsibility for incompetent patient’s decisions:
i. (1) patient’s guardian of the person;
ii. (2) patient’s spouse;
iii. (3) any adult son or daughter of the patient;
iv. (4) either parent of the paitent;
v. (5) any adult brother or sister of the patient;
vi. (6) any adult grandchild of the patient;
vii. (7) a close friend of the patient; and
viii. (8) the patient’s guardian of the estate.
iv. Advance directives:
1. Instructional directives, such as a living will or a commonly used form known as medical directive,
which specify either generally or by way of hypothetical examples how one wants to be treated in
end-of-life situations or in the event of incompetence;
2. Proxy directives, such as health care proxy or durable power of attorney for health care, which
designate an agent to make health care decisions for the patient (the power of the agent does not
expire with the principal’s competency); or
3. Hybrid or combined directives incorporating both of the first two approaches: directing treatment
preferences and designate an agent to make substituted decisions
v. Bush v. Schiavo, Supreme Court of Florida, 2004
1. F:
2. I:
3. R:
b. Disposition of the Body
c. Note: Elder Law

CHAPTER 6 CONSTRUCTION OF WILLS

Section A. Mistake or Ambiguous Language in Wills


1. The Traditional Approach: No Extrinsic Evidence, No Reformation
a. Rules
i. Plain meaning rule or No extrinsic evidence rule
1. Prohibits the introduction of extrinsic evidence to give interpretation to a term in a will that is
contrary to what the term plainly means
a. what the reasonable testator would have meant by the use of a particular word
2. Wills are formal documents and are supposed to, and believed to, express the testator’s last wishes
and it would be mischievous to introduce extrinsic evidence (particularly oral declarations) to
change a meaning of a term in the will that is plain.
ii. No reformation
1. Reformation is an equitable remedy that would correct a mistaken term in the will to reflect what
the testator intended the will to say
2. Justification: the court is compelled to interpret the words the testator actually used, not to interpret
the words that the testator is purported to have intended to use
iii. Mahoney v. Grainger, Massachusetts, 1933
1. T gave all her property to her “heirs at law,” thinking that the term meant her cousins would receive
the property. To two other cousins, T gave a general pecuniary devise (gift of a sum of money that
is to come out of the estate). Aunt is closer in table of consanguinity, 3rd degree, where cousins are
4th degree.
2. Mistaken term: “HEIRS” – Mistake made was that testator thought “heirs” meant cousins.
However, the plain meaning is that the aunt, as the only heir at law. There is therefore no remedy

3. Extrinsic evidence? None that would demonstrate that she had intended to give the aunt her estate.
a. Evidence of the Surrounding Circumstances – may be introduced but not to show that the
intention was different. For example, there may be evidence to show that testator had a
large family and that she had given other property or funds to other people.
iv. In re Estate of Smith
1. Exact fit of the term, except that it is a Nevada corporation and it is not a Pinckneyville, Illinois.
The location is merely descriptive of the location of Perry Manor, Inc. at the time of the devise.
The location is disregarded by the court.
b. Personal usage exception
i. If the extrinsic evidence shows that the testator always referred to a person in an idiosyncratic manner, the
evidence is admissible to show that the testator meant someone other than the person with the legal name of
the legatee.
1. Example: T gave Mrs. Moseley a devise of money but the court found that T meant Mrs. Trimble,
who was the wife of a salesman at Moseley’s cigar store who was called Mr. Moseley by T.
c. Patent Ambiguities
i. A patent ambiguity is an ambiguity that appears on the face of the will
1. In some states, extrinsic evidence is not admissible to clarify even a patent ambiguity, and the will
or the devise fails – both gifts are struck because the error cannot be corrected.
2. Increasingly, extrinsic evidence is allowed to aid in interpreting a patent ambiguity
3. Another approach is to construe the language of the will without the aid of extrinsic evidence in a
manner that saves the devise
ii. Example: T devised to A 80 acres out of a farm and to B 140 acres of the same farm. The ambiguity is that
T did not specify which acres were to go to whom. The court found that A and B were intended to be
tenants in common in fractional shares in the farm.
d. Latent Ambiguities
i. A latent ambiguity is an ambiguity that does not appear on the face of the will but manifests itself when the
terms of the will are applied to the testator’s property or designated beneficiaries.
1. Oral declarations of intent to the scrivener are admitted in most jurisdictions in cases of latent
ambiguity
ii. Two types
1. Equivocation: the will clearly describes a person or thing, and two or more persons or things
exactly fit that description.
a. Extrinsic evidence is permitted because the terms of the will are made more specific but
nothing is added thereto
2. Exists when no person or thing exactly fits the description, but two or more persons or things
partially fit
a. Devise to Mr. and Mrs. Wendell Richard Hess residing at 17 Barbara Circle. The couple
divorces and both move out of the home. Mr. Hess remarries Verna. T dies and there is
no one that fits the entire description. The court looks at who would fit the description
when the will was created.
2. Slouching Toward Reformation: Correcting Mistakes without the power to reform wills
a. Chart:

Effect: Effect:
Lack of Volition Mistaken Terms
Cause: Undue Influence, Fraud
Intentional Wrongdoing Duress
(relief granted) (relief granted)
Cause: Lack of Capacity, Mistake
Innocent Acts Insane Delusion
(relief granted) (no relief)

i. Lack of volition: Wills should express the testator’s true wishes that were rationally expressed by the
testator.
1. Regardless of whether the decisions come about by intentional wrongdoing or innocent acts
2. Remedy: the will or term of the will is not given effect due to lack of testamentary intent
ii. Mistaken terms
1. Fraud: intentional wrongdoing, lacks testamentary intent and therefore it would be struck
2. Mistake
a. Under plain meaning rule, no relief is granted
b. Arnheiter v. Arnheiter, New Jersey 1956
i. T devises his property in 304 Harrison Avenue. He, however, never owned 304, he owned 317. The court
strikes the number 304 and permits the devise of 317 Harrison Avenue.
c. Estate of Gibbs
i. The court strikes things it deems to be unnecessary. In this case, the court strikes the address and the middle
initial of the devisee
3. Openly Reforming Wills for Mistake
a. Erickson v. Erickson, Connecticut 1998
i. Plaintiff is Alicia Erickson, the daughter of the deceased. Defendant is Dorothy Erickson, executrix of the
estate of the decedent.
ii. Issue: Whether the trial court should have admitted evidence regarding the decedent’s intent that his will
would not be revoked automatically by his subsequent marriage. Yes.
iii. H: The trial court improperly excluded extrinsic evidence of decedent’s intent. A new trial is ordered.
iv. At trial, the court holds that the fact the will was executed two days before the wedding and gives everything
to the spouse, including making the spouse the guardian of minor children, and executor of the estate, etc.,
the statute (requiring the will anticipate the marriage) has been met.
1. T’s daughter appeals.
v. The appellate court holds the following:
1. The will did not provide for the contingency of subsequent marriage
2. The trial court improperly excluded extrinsic evidence of intention
a. T’s intention in regard to whether the will was intended to survive the marriage is
important to demonstrate that the attorney made a mistake (not the testator)
i. Lawyer says that there is abundant evidence from the terms of the will that it was
intended by the testator that the will survive the marriage
ii. Deathbed counseling – on at least two occasions, T asked the lawyer if the lawyer
was sure that his wife would get the property; attorney in both cases responds
that the will devises the property to the wife
b. Whose mistake is it? The client’s or the attorney’s mistake?? Scrivener’s mistakes are
corrected, not the testator’s
c. Standard of proof – clear and convincing evidence
b. Restatement of Property § 12.1 Reforming Donative Documents to Correct Mistakes
i. A donative document, though unambiguous may be reformed to conform the test to the donor’s intention if
the following are established by clear and convincing evidence:
1. (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the
document; and
2. (2) what the donor’s intention was.
ii. Direct evidence of intention contradicting the plain meaning of the text as well as other evidence of
intention may be considered in determining whether elements (1) and (2) have been established by clear and
convincing evidence.
c. John H. Langbeing, Curing Execution Errors and Mistaken Terms in Wills (Know this)
i. Case rejects the idea that malpractice cases are the way to address the mistakes made in a will. It leaves the
wrongfully distributed property in the hands of the wrongful beneficiary.
ii. Damages are usually not sufficient if the gift is a rare painting or a family heirloom or some other kind of
unique property that is distributed to the wrong person – damages do not make the parties whole.
iii. Lawyer bears the burden of the mistake and those who would have received if the mistake is not remedied
receive a windfall, the lawyer bears the economic burden.
d. Mistakes by scrivener
i. In some cases courts have remedied mistakes by the scrivener
ii. Where there has been an accidental omission by the scrivener or typist, courts have sometimes inserted the
missing words when convinced from the face of the will and extrinsic evidence what missing words are
intended.
e. Gifts by implication
i. Doctrine of Probable Intent – if a contingency for which no provision is made in the will occurs, the court
studies the family circumstances and the plan of testamentary disposition set forth in the will. Then the
court places itself in the position of the testator and decides how the testator probably would have responded
to the contingency had he envisioned the occurrence
ii. Gifts filling a gap in a will may also be implied by the process of construction.
f. Problems with rectifying wills
i. Once courts move away from the words on the face of the will, testators potentially lose the safe harbor of a
written will
ii. Some courts allow reformation for tax purposes but for no other reasons
g. Fleming v. Morrison
i. T wanted to sleep with Fleming. For that purpose he drafted a will conveying all his property to Fleming.
Goodridge, the lawyer was to act as a witness, however T informed Goodridge that the only purpose for
drafting the will was to sleep with Fleming after the lawyer witnessed the will. Goodrigde still witnessed
the will. The two other witnesses did not know of the intent of T.
ii. Court allows extrinsic evidence to show that T did not mean to make the will his last will and testament.
The court essentially makes the scheme work perfectly
iii. The court finds that the will is invalid because there were only two witnesses, instead of the required three,
that correctly witnessed the will. The third, Goodridge, knew that the will was not valid because he knew it
did not reflect he intent of the testator.

Section B. Death of Beneficiary Before Death of Testator


1. Introduction
a. General Rule: If a devisee does not survive the testator, the devise lapses (fails)
i. All gifts made by will are subject to a requirement that the devisee survive the testator, unless the testator
specifies otherwise.
b. Specific rules
i. Specific or general devise
1. Specifically identified property to a specific person.
2. If a specific or general devise lapses, the devise falls into the residue.
3. May be a particular item or a particular sum of money from a particular source or from a general
fund.
ii. Residuary devise
1. If the devise of the entire residue lapses, because the sole residuary devisee or all the residuary
devises predecease the testator, the heirs of the testator take by intestacy
2. No-residue-of-a-residue rule.
a. If a share of the residue lapses, such as when one of the two residuary devisees, at CL the
lapsed residuary share passes by intestacy to the testator’s heirs rather than to the
remaining residuary devisees.
iii. Class gift
1. If the devise is to a class of persons, and one member of the class predeceases the testator, the
surviving members of the class divide the gift.
iv. Void devise
1. Where a devisee is dead at the time the will is executed, or the devisee is a dog or cat or some other
ineligible taker, the devise is void. The same general default rules govern the disposition of void
devises as govern lapsed devises.
c. Estate of Russell
i. Competing interpretations
1. T’s heir claims that the gift to Roxy is void because Roxy is a dog. Therefore, it should pass by
intestacy to T’s heir.
2. Quinn is saying that because the gift is going to him and the dog, Mrs. Russell meant for the gift to
go to him in order to take care of the dog.
ii. Findings
1. Gift lapses because of the no-residue-of-the-residue rule. The appellate court had to conclude that
T, under the plain meaning rule intended for the dog to get half of the estate
2. Why didn’t Quinn argue that the no-residue-of-the-residue rule was not correct?

2. Antilapse Statutes
a. Provide that if a devisee is in a specified relationship to the testator and is survived by issue who survive the
testator, the issue are substituted for the predeceased devisee [Note: in some states, the antilapse statute applies only
if the beneficiary is a child of the testator or if the beneficiary is a grandparent of the testator or in that line, a couple
of states apply the statute to all gifts]
i. An antilapse statute applies to a lapsed devise only if the devisee bears the particular relationship to the
testator specified in statute.
ii. UPC antilapse statute applies only to devises to a grandparent or a lineal descendant of a grandparent.
b. The antilapse statute, which supersedes the common law where applicable, is also a default rule. It applies unless the
testator indicates that it not apply. If the testator manifests an intent that the antilapse statute not apply, and he does
not include an alternative gift when a devisee predeceases the testator, the common law default rule applies.
c. UPC (1969) § 2-605 Antilapse; Deceased Devisee; Class Gifts
i. If a devisee who is a grandparent or a lineal descendant of a grandparent or of the testator is dead at
the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator,
the issue of the deceased devisee who survive the testator by 120 hours take in place of the deceased
devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal
degree then those of more remote degree take by representation. One who would have been a devisee
under a class gift if he had survived the testator is treated as a devisee for purposes of this section
whether his death occurred before or after the execution of the will.
ii. Note: Adopted child is treated as a lineal descendant, stepchildren are not treated as lineal descendant
iii. UPC § 2-603 (1990) version says that the phrase “who survive me” does not require survivorship to take
i.e., the antilapse statute is not overcome by such words. It has only been adopted in a dozen states – has the
effect of redrafting testator’s will. [No survivorship requirement without more.]
1. One way about this result is to specify that the antilapse statute does not apply.
2. What more can one have than “who survive me”?
a. Specify the persons to whom the share would go if a devisee does not survive. [Must be
in the text of the will.]
iv. Note: The antilapse statute is NOT strong enough to overcome testator’s words in the will. The words “who
survive me” qualifies as a presumption overcoming the antilapse statute (which is only a default rule).
d. Allen v. Talley, Texas 1997
i. The devise was to her living brothers and sisters. If the will provides that the devisee must survive in order
to take, the antilapse statute would not take effect. The antilapse statutes would say that it applied to
grandparent or lineal descendants of grandparents of the testator – the brothers and sisters would clearly
apply to save the gift to children of deceased members unless there is an explicit requirement for
survivorship. The problem here is that the language is unclear.
ii. The gift was to a class (brothers and sisters). The language blocks the application of the antilapse statute
e. Jackson v. Schultz. Entire estate is devised to T’s wife before he dies, leaving three children by a previous marriage
as her sole heirs. The antilapse statute does not apply to a spouse when the spouse predeceases the T (because they
are not lineal descendents). Spouses are not descendents of the grandparent of the testator. This is a gift to the
spouse and her heirs and assigns for ever. There are no heirs of the testator so the gift will escheat to the state unless
the court can discover a gift to the children of the deceased spouse. The court first observes that the language to “x
and his heirs” means “to x in fee simple”- and “his heirs” are words of limitations (describing the extent of the
estate). Then the court says that a gift “to X or his heirs” is a substitutional gift. In that case “or his heirs” are said to
be words of purchase. The court says that “and” and “or” are substituted if it is necessary to implement the testator’s
intention. Under the facts and circumstances of the case, T intended to not die intestate therefore “and her heirs and
assigns” means “or her heirs and assigns” and so the children take.
i. Suppose that the wife left a will that gave her residuary estate to the law school. Now there are heirs and
assigns and the words “or heirs or assigns” and we have both. Who takes?
1. Who knows. Deciding that “and” can be replaced by “or” makes the case difficult if other facts are
present.
3. Class Gifts
a. The reason class gifts get particular attention is that the results are so different under class gifts in the common law
than if it is a gift to persons not in a class. It is critical to understand whether a gift is a class gift or not in order to
apply the antilapse statute
b.
c. Dawson v. Yucus
i. Wife wanted the farm to go back to husband’s family upon her death. She named the two nephews, one of
them predeceased the testator. At issue was whether the gift to the nephews Wilson and Burtle was a class
gift., in which case the surviving nephew, Wilson would take Burtle’s share. If no, then Burtle’s share would
lapse, and so would pass to residuary devisees.
ii. H: Not a class gift, so lapse and passes under the residuary clause.
d. In re Moss
i. Daily Telegraph stock in trust to wife and Elizabeth (niece), residue to wife. Wife’s will gives all her
interest to Kingsley. The wife is to receive the income from the trust for life. The trust was then to be
distributed to Elizabeth and the children of Emily. Elizabeth dies, never marries and does not have children.
Five nieces survives the testator.
ii. Issue: whether the share of E.J. Fowler, who had predeceased the testator, lapsed and so fell into the residue
of the estate, or whether instead the remainder in the newspaper stock was a class gift with Fowler and the
children of Emily as the class members
iii. If the gift is specific, Elizabeth’s share passes to the residue and then passes through wife’s estate (to
Kingsley).
1. if it is not a class, how much passed to the residuary? If Elizabeth’s gift lapses and there is not a
class, the gift should be half (1/2) [to Elizabeth and the children of Emily]
iv. By calling the gift to Elizabeth and Emily’s children (nieces) a class gift. A lapsed gift in the class is
divided equally among the survivors of the class. In doing so, the court says that because the persons to
whom the gift goes to are all nieces.
1. the court held that it is 1/6 and 5/6 because one cannot tell how much Elizabeth would get until one
knows how many children of Emily survive.
v. The fraction makes a difference.

Section C. Changes in Property after Execution of a Will


1. Ademption by Extinction (p. 405-11)
a. Specific devises of real and personal property are subject to the doctrine of ademption by extinction. If the
testator devises real or personal property to an heir but then the testator sells the property without changing
the will, the devise fails (because the property is no longer under the ownership of T). It does not apply to
general, demonstrative, or residuary devises.
i. Specific devise – a disposition of a specific item of the testator’s real or personal property
ii. General devise – testator intends to confer a general benefit and not give a particular asset
iii. Demonstrative devise – hybrid gift, a general devise payable from a specific source
iv. Residuary devise – coveys that portion of the testator’s estate not otherwise effectively devised by other
parts of the will
b. Identity Theory – when T dies, the property is gone and the devisee does not get the property. Adeems the gift if it is
not in the estate when T dies.
c. Intent Theory – The gift is adeemed only if the testator intended for the gift to adeem – if it can be established that by
selling the gift, T did not intent to adeem the gift to devisee.
d. Wasserman v. Cohen
i. The court reaffirms the ademption by extinction policy. T in this case placed all her property in a trust and
devised one property to P. T then sold the property before her death. P claims that the doctrine of
ademption by extinction does not preclude her from collecting the value of the property from the trust.
ii. The doctrine of ademption, as traditionally applied to wills, should also apply to the trusts.
1. The court applies the identity theory of ademption.
e. Escape routes courts have used to escape ademption (under identity theory)
i. Classify the devise as general or demonstrative rather than specific.
ii. Classify the inter vivos disposition as a change in form, not substance
1. A corporate merger or reorganization is only a change in form, not substance.
iii. Construe the meaning of the will as of the time of death rather than as of the time of execution
1. When the language is broad enough to cover the new item and the new item was purchased not to
change the estate plan but as a matter of ordinary living (i.e., passing the 1989 Lincoln automobile
instead of the 1984 listed on the will)
2. These cases fall under the doctrine of acts of independent significance.
iv. Create exceptions
1. If the conservator of an incompetent or insane person transfers the item, most cases have held the
legacy not adeemed on the theory that ademption requires a voluntary act of the testator.
f. UPC
i. 1969 UPC Exceptions to the situation when the specific property is not in the testator’s estate. These
include giving the devisee
1. (1) any remaining balance on the purchase price of the specific property sold,
2. (2) any unpaid amount of condemnation award for the property,
3. (3) any unpaid fire or casualty insurance proceeds after the property has been destroyed
4. (4) any property owned by the testator as a result of foreclosing a mortgage devised to the specific
devisee, and
5. (5) the sale price of specifically devised property sold by a conservator.
ii. 1990 UPC
1. Abandons the identity theory and adopts the intent theory. As amended in 1997, it creates a
presumption in favor of ademption
a. the party opposing the ademption (the party claiming the cash value of a specifically
devised item that is not in the testator’s estate) has the burden of proving that ademption is
inconsistent with the testator’s intent.
2. Adds an additional exception for replacement property
iii. §2-606 Nonademption of Specific Devises; Unpaid Proceeds of Sale, Condemnation, or Insurance;
Sale by Conservator or Agent [Maintains the identity theory for the most part, but it is ultimately a blend
of identity and intent theory]
1. (a) A specific devisee has a right to the specifically devised property in the testator’s estate at death
and:
a. (1) any balance of the purchase price, together with any security agreement, owing from a
purchaser to the testator at death by reason of sale of the property;
b. (2) any amount of a condemnation award for the taking of the property unpaid at death;
c. (3) any proceeds unpaid at death on fire or casualty insurance or on other recovery for
injury to the property;
d. (4) property owned by the testator at death and acquired as a result of the foreclosure, or
obtained in lieu of foreclosure, of the security interest for a specifically devised obligation;
e. (5) real or tangible personal property owned by the testator at death which the testator
acquired as a replacement for specifically devised real or tangible personal property; and
f. (6) if not covered by paragraphs (1) through (5), a pecuniary devise equal to the value as
of its date of disposition of other specifically devised property disposed of during the
testator’s lifetime but only to the extent it is established that ademption would be
inconsistent with the testator’s manifested plan of distribution or that at the time the will
was made, the date of disposition or otherwise, the testator did not intend that the devise
adeem.
2. (b) If specifically devised property is sold or mortgaged by a conservator or by an agent within the
authority of a durable power of attorney for an incapacitated principal, or if a condemnation award,
insurance proceeds, or recovery for injury to the property are paid to a conservator or to an agent
acting within the authority of a durable power of attorney for an incapacitated principal, the
specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of
the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
3. (c) The right of a specific devisee under subsection (b) is reduced by any right the devisee has
under subsection (a)…
2. Stock Splits and the Problem of Increase
a. A change in form, not substance. Shares held after a split represent the same proportional ownership of the
corporation as the number of shares held before the split. Therefore, may modern courts have discarded the old
approach in the case of stock splits and have held that, absent a contrary showing of intent, a devisee of stock is
entitled to additional shares received by the testator as a result of a stock split
b. Stock dividends – treated differently than stock splits by some courts. They analogize a stock dividend to a cash
dividend and conclude that the devisee cannot logically be awarded the former when he is denied the latter.
i. Analogy ignores the fact of corporate finance that after a stock dividend, as after a stock split, the testator’s
percentage of ownership remains the same
c. Under UPC and Restatement, stock dividends are treated the same as stock splits: the beneficiary gets them along
with the other shares.
3. Satisfaction of General Pecuniary Bequests
a. Doctrine of Satisfaction or Ademption by Satisfaction
i. Applies when the testator makes a transfer to a devisee after executing the will, during decedent’s lifetime.
If T is a parent of the beneficiary and after execution of the will transfers to the beneficiary property of a
similar nature to that given by the will, there is a rebuttable presumption that the gift is in satisfaction of the
gift made by the will.
ii. Akin to the doctrine of advancements under intestacy law
iii. Applies to general bequests but NOT to specific bequests.
1. May also apply to residuary gifts and to demonstrative gifts, depending on the state.
iv. Some states require that the intention of the testator to adeem by satisfaction must be showing in writing.
(same as UPC 2-609)
1. There is no presumption of satisfaction by a gift to a child.
2. But if there is a writing that expresses an intention that the gift be in satisfaction, then the lifetime
gift is taken into account.
4. Exoneration of Liens
a. When a will makes a specific devise of land, on which there is a mortgage, the question may arise whether the land
devised passes free of the mortgage.
i. In some states, title passes free of the lien. The doctrine used is exoneration of liens.
1. Under this doctrine, when a will makes a specific disposition of real or personal property that is
subject to a mortgage to secure a note on which the testator is personally liable, it is presumed,
absent contrary language in the will, that the testator wanted the debt to be paid out of the residuary
estate.
2. It is unclear, however, whether this presumption accords with the probable intent of the average
testator, and the risk is that the residue will be depleted by exonerating liens.
ii. UPC § 2-607
1. A specific devise passes subject to any mortgage interest existing at the date of death, without right
of exoneration, regardless of a general directive in the will to pay debts.
5. Abatement
a. The problem of abatement arises when the estate has insufficient assets to pay debts as well as all the devises; some
devises must be abated or reduced (operates like bankruptcy)
b. In the absence of any indication in the will as to how devises should abate or be reduced, devises ordinarily abate in
the following order:
i. (1) Intestate property
ii. (2) residuary devises,
iii. (3) general devises, and
iv. (4) specific and demonstrative devises are the last to abate and are reduced pro rata.
c. UPC § 3-902 provides
i. If the testamentary plan would be defeated by the usual order of abatement, the shares of the estate abate as
may be necessary to give effect to the intention of the testator.

CHAPTER 7 RESTRICTIONS ON THE POWER OF DISPOSITION: PROTECTIONS OF THE SPOUSE AND CHILDREN
Section A. Rights of the Surviving Spouse
1. Introduction to Marital Property Systems –
a. REVIEW of INESTACY - The first taker in intestacy is the surviving spouse. The first share is given to surviving
spouse. The fraction or portion of intestate share varies from jdx to jdx, all of the fractions are derived with idea in
mind that the legislature will give surviving spouse the portion of the estate that they think a spouse who wrote a will
would give.
b. The most common of the fractions that goes to intestate survivor is 1/3 if there is a child. If no surviving child, then
½. UPC gives a larger share, 100% to surviving spouse where there are no children or parent, or where all of the
children are also children of the deceased spouse.
c. There is a difference between intestate share and the forced share.
d. Basic marital property systems
i. Separate property or Common law property
1. under the common law husband and wife own separately all property that each acquires (except
those items one spouse has agreed to put into joint ownership with the other)
2. issue: what protection against disinheritance should be given the surviving spouse who works in the
home or works at a lower-paying job?
a. Elective or forced share for the spouse
i. Limited to a share of property acquired with earnings
ii. Community property (8 states)
1. under community property husband and wife own all acquisitions from earnings after marriage in
equal undivided shares
2. The death of one spouse dissolves the community. The deceased spouse owns and has
testamentary power over only his or her one-half community share.
2. Rights of Surviving Spouse to Support
a. Social Security
i. Benefits depend on the year the beneficiary was born. If he elects to receive benefits before full eligibility,
the monthly payments are reduced.
ii. If a worker dies, his or her surviving spouse receives the worker’s whole monthly Social Security
benefits. The worker has no power to transfer the spousal rights benefit to any other person.
1. a divorced ex-spouse of the worker has a right to benefits if the marriage lasted for 10 years or
longer.
iii. Gender equity
1. Divorce is common and 2/3 of it occurs within ten years of marriage – ex-spouse does not get the
SS proceeds
2. Differential treatment of families where one spouse worked in comparison to families in which
both spouses worked
a. If both spouses worked but one is retired and the other still works, upon the death of the
retired spouse, the surviving spouse gets the full monthly payment of SS.
b. If both spouses worked but at the time of death of one of the spouses, both spouses were
retired, the surviving spouse gets only her own Social Security benefit, or the deceased’s
benefit, whichever one is larger—but not both.
iv. Formula. Amount of quarters worked, the amount of earnings taxed, and the age of retirement.
b. Private Pension Plans
i. Governed by ERISA – Employee Retirement Income Security Act of 1974.
ii. Two types
1. Defined Contribution Plan
a. Funded by contributions from both the employer and the employee.
b. At retirement, the employee is entitled to the assets in the fund held in her name, including
any investment returns that have accrued over the years.
2. Defined Benefit Plan
a. Funded by the employer.
b. At retirement, the employee is entitled to a defined benefit i.e., 40 percent of the average
of the employee’s three highest years of annual income.
iii. ERISA Requirements
1. The spouse of an employee must have survivorship rights if the employer predeceases the spouse.
a. Policy. Insures a stream of income to surviving spouses.
b. If the employee spouse survives to retirement age, the pension must be paid as a joint and
survivor annuity to the employee and his or her spouse, unless the nonemployee spouse
consents to some other form of payment of the retirement benefit, such as a lump sum.
c. If the employee dies before retirement and the pension is vested, the surviving spouse is
entitled to a preretirement survivor annuity.
2. ERISA preempts state law
3. Waiver
a. A spouse may waive her rights to benefits under the employee’s pension plan, but ERISA
discourages waivers by strict rules requiring their validity.
b. Requires written consent of the spouse, and one who is not yet a spouse may not consent
(i.e., antenuptial agreements)
c. Workers under the age of 35 cannot effectuate a waiver of spousal benefits.
iv. Superior to claims of other creditors; small in size
c. Homestead
i. Probate Homestead
1. State laws designed to secure the family home to the surviving spouse and minor children, free of
the claims of creditors
2. The surviving spouse has the right to occupy the family home for his or her lifestyle
3. Two approaches
a. (1) the homestead must be established by the decedent during life, usually by filing a
declaration of homestead in some public office; or
b. (2) the probate court has power to set aside real property as a homestead.
4. Amounts
a. Some states have a very low exemption which provides little protection to the surviving
spouse
b. UPC §2-402 recommends $15,000.
c. In other states, the homestead exception is substantial and may exempt the family home
regardless of the value.
5. The decedent has no power to dispose of a homestead so as to deprive the surviving spouse of
statutory rights therein.
a. The right to occupy the homestead is given in addition to any other rights the surviving
spouse has in the decedent’s estate.
6. Superior to claims of other creditors; small in size
d. Personal Property Set-Aside
i. The right of the surviving spouse (and sometimes minor children) to have set aside certain tangible personal
property of the decedent up to a certain value.
1. UPC § 2-403 sets the limit at $10,000.
ii. The property usually includes household furniture and clothing, but may also include a car and farm
animals.
iii. The set-aside is usually subject to several conditions and limitations, but if these are met, the decedent
usually has no power to deprive the surviving spouse of the exempt items.
iv. Superior to claims of other creditors; small in size
e. Family Allowance
i. Every state has a statute authorizing the probate court to award a family allowance for maintenance and
support of the surviving spouse (and often the dependent children).
ii. The allowance may be limited by statute to a fixed period, or it may continue thereafter while the will is
being contested or for the entire period of administration.
iii. Note: the allowance is in addition to whatever other interests pass to the surviving spouse.
iv. Varies by state
1. in some states, the maximum allowance that can be awarded if fixed by statute.
2. in other states, a reasonable allowance tied to the spouse’s standard of living is permitted.
3. UPC § 2-404 allows a reasonable allowance, which cannot continue beyond one year if the estate is
inadequate to pay creditors
v. Maintenance of the decedent’s spouse and dependent children is not allowed after the estate is closed.
vi. Trend abroad:
1. The state grants the court discretion to override the terms of the decedent’s will and to distribute
some or all of the estate to the decedent’s family and other dependents if the court determines that
they deserve a larger share.
vii. A dollar amount providing a source of support money during the period of time that the probate is ongoing.
f. Dower and Curtesy
i. Dower – the widow’s right in all land of which her deceased husband had been seised during marriage and
which was inheritable by the issue of husband and wife.
1. Interest: Life estate in one-third of her husband’s qualifying land.
2. Attaches the moment the husband acquires title to land or upon marriage, whichever is later.
a. Thereafter, the husband cannot sell the land free and clear of the wife’s dower interest.
b. No purchaser can cut off the wife’s dower without consent.
3. It remains inchoate until the husband’s death, when it becomes possessory.
4. Right as viewed today: signatures of both spouses is a practical requirement to the sale of one
spouse’s land.
a. Abolished in most states. It exists in only four jurisdictions.
ii. Curtesy – the husband had a support interest in his wife’s land.
1. Features
a. (1) the husband did not acquire curtesy unless children were born of the marriage, and
b. (2) the husband was given a life estate in the entire parcel, not merely in one-third.
2. Right as viewed today: label given to the support interest of the husband, which is identical to the
wife’s support interest.
3. Rights of Surviving Spouse to a Share of Decedent’s Property
a. The Elective Share and its Rationale
i. Analysis
1. Who can elect?
2. What is the election amount?
a. Typically, 1/3
3. What is the estate against which the spouse can elect?
a. Most states, the probate estate – non probate transfers to other parties,
b. How have courts addressed the problem?
i. Illusory test – a transfer that for all practical purposes, the decedent spouse
retained ownership
ii. Intent to defraud
iii. Present donative intent
ii. Overview
1. Apply only in separate property or common law property jurisdictions
a. In community property states, the spouses have a 50% undivided interest in all earnings of
each other.
b. Election the surviving spouse has whether or not the decedent died with a will
2. Traditional statute
a. (1) The spouse can take under the decedent’s will, or
b. (2) The spouse can renounce the will and take a fractional share of the decedent’s estate.
3. Policy justifications
a. Partnership model of marriage
i. The surviving spouse contributed to the decedent’s acquisition of wealth and
deserves to have a portion of it.
b. Support model of marriage
i. The estate should provide the surviving spouse with adequate support. If spouse
dies before requesting her elective share, then the elective share should not be
granted to her estate.
4. Tension between policy justifications
a. The elective share (implementation)
i. PT – militates toward awarding the surviving spouse one-half of the decedent’s
property acquired during marriage
ii. ST – justifies a smaller share but would apply it to all decedent’s property
b. Exclusion of W by will, W dies before exercising her right to election
i. PT – W’s personal representative should be allowed to renounce H’s will and
take a forced share, passing the share to W’s heirs or devisees.
ii. ST – W no longer needs support after death so the property would pass to H’s
heirs and devisees.
1. UPC follows this view.
c. Can the elective share be satisfied with a life interest in property held in trust?
i. PT – no.
ii. ST – yes.
5. Size of Elective Share
a. Most states give a fixed fractional share (1/3) of decedent’s estate regardless of the length
of the marriage
b. 1990 UPC – the surviving spouse receives a sliding scale percentage of the elective share
amount, based upon the duration of marriage.
i. 3% after one year, growing to 50% after 15 years of marriage.
ii. A sliding scale or accrual elective share also deals more equitably with second
marriages among the elderly.
6. Note: The elective share is usually for a widow because women tend to outlive men.
iii. Note: The Estate Tax Marital Deduction and the Dependency of Women
1. The changes in the federal estate tax law is that today the following transfers qualify for the marital
deduction:
a. (a) H transfers property outright or in fee simple to W;
b. (b) H creates a trust giving W income for life and a power to appoint the trust principal at
death to whomever she pleases (a life estate coupled with a general power of
appointment);
c. (c) H creates a trust giving W income for life (a QTIP trust).
i. Surviving spouse has a right to the income from the property for life but does not
have power of appointment.
1. goes back to the old support notion.
2. Theory: spouses ought to be encouraged to provide for each other in their wills.
iv. In re Estate of Cross, 664 N.E.2d 905 (Ohio 1996)
1. H dies testate leaving all his property to his son, to the exclusion of W. W is incapacitated, has
Alzheimer’s disease and lives in a nursing home paid by Medicaid. W was unable to elect against
the will. The probate court appointed a commissioner to make recommendations as to whether W
should elect against the will. The probate court found that she should against the will. The appeals
court reversed. The commissioner appeals on behalf of W (since deceased).
2. Issue. Whether the probate court abused its discretion in electing for decedent’s surviving spouse,
who depended upon Medicaid benefits for her support and care, to take against the will? No.
3. RULE
a. Where the surviving spouse is under a legal disability, the probate court may elect for the
surviving spouse to take against the will only if it finds, after taking into consideration the
other available resources and the age, probable life expectancy, physical and mental
condition, and present and reasonably anticipated future needs of the surviving spouse,
that the election to take is necessary to provide adequate support for the surviving spouse
during his life expectancy.
i. More than a mathematical consideration
b. Medicaid problem
i. If a person has resources including property owned separately by the person, his
share of family property, and property devised to him from a parent or spouse,
and he decides to not use them, the person becomes ineligible for benefits.
c. If W did not elect against H’s will, she would receive no income and would be deemed
ineligible for benefits for failing to avail herself of potential income.
v. Incapacity of surviving spouse
1. If the surviving spouse is incompetent, a guardian of the spouse can elect against the decedent’s
will if it is in the best interests of the spouse, with approval of the probate court.
a. Minority rule. The guardian should elect to take against the will if it is to the surviving
spouse’s economic benefit, calculated mathematically.
b. Majority rule. All the surrounding facts and circumstances should be taken into
consideration by the probate court. Also, the guardian is allowed to take into account the
preservation of the decedent’s estate plan and whether the surviving spouse would have
wanted to abide by her dead spouse’s will.
2. UPC § 2-203 (1969) The probate court, acting for an incompetent could order election against the
person’s will only after finding that exercise is necessary to provide adequate support for the
protected person during his probable life expectancy. (elective share is going to surviving spouse)
a. 1990 UPC § 2-212 provides that if a conservator or guardian elects the elective share, the
portion of the elective share that exceeds what the decedent spouse provided for the
survivor must be placed in a custodial trust for the benefit of the surviving spouse.
i. At the time of the surviving spouse’s death, the trustee must transfer the trust
property to the residuary devisees under the will of the predeceased spouse in
order to conserve the estate plan.
vi. In re Estate of Cooper
1. T died testate leaving everything to petitioner as a specific and residuary legatee, with the
exception of certain real estate (over 80% of the value of the estate), which was left to a former
homosexual lover of T. Petitioner claims that he is entitled to exercise a right of election against
decedent’s will.
2. Issue. Whether the survivor of a homosexual relationship is entitled to a right of election against
T’s will. No.
3. Holding. A survivor of a homosexual relationship, alleged to be a spousal relationship, was not
entitled to a right of election against the decedent’s will.
b. Property Subject to the Elective Share
i. Overview
1. The original elective share statutes gave the surviving spouse a fractional share of the decedent’s
estate, which implicitly meant the probate estate.
2. Should non probate transfers also be included in the estate
ii. (1) Judicial Responses to whether nonprobate transfers may be reached by the elective share
1. Sullivan v. Burken (Mass 1984)
a. Facts. P is the widow of testator. She seeks a determination that assets held in an inter
vivos revocable trust created by her husband during the marriage should be considered as
part of the estate in determining that share. His will poured-over into the trust. The
testator stated in his will that he intentionally neglected to make any provision for P. Ds
are coexecutors of the will and beneficiaries of the trust.
b. PH. Probate court rejected the widow’s claim.
c. P’s claims: (1) Trust assets are part of the estate or (2) trust was an invalid testamentary
disposition.
d. Court’s findings:
i. Trust is not an invalid testamentary disposition simply because the settler
retained a broad power to modify or revoke the trust, the right to receive income,
and the right to invade principal during his life.
ii. Are the trust assets part of the estate?
1. Old rule: the elective share does not extend to personal property that has
been conveyed by the husband in his lifetime and does not form part of
his estate at his death.
2. New rule: Assets of inter vivos trusts created during the marriage by the
deceased spouse over which he or she alone had a general power of
appointment, exercisable by deed or by will, are included in the meaning
of “estate” and therefore, the spouse is entitled to take part of those
assets through the elective share.
iii. The new rule will only apply to inter vivos trusts executed after the date of the
decision. P in this case has no remedy.
e. Requirements
i. Trust must be created during the marriage
ii. General power of appointment
iii. Power to revoke
2. Bongaards v. Millen (Mass 2003)
a. Wife dies leaving her husband out of her will. W had a life tenant interest in a trust
established by her mother. W had limited, testamentary power of appointment over the
remainder and during her life she could have terminated the trust and had the corpus of the
trust paid to her. W never terminated the trust and appointed her sister to have the
remainder. H sues to reach the trust through the elective.
b. The court holds that the trust property is not subject to P’s elective share for the single
reason that the trust was created by a third party (W’s mother). The rule in Sullivan
applies only to assets of a trust created during the marriage by the deceased spouse
i. The court refuses to extend the reach of the elective share into a deceased
spouse’s property. Sullivan only closed a loophole through which spouses were
able to evade the elective share. The statute should not be expanded to frustrate
the intent of a third party who is a stranger to the marriage.
ii. A third party has no obligation to support someone else’s spouse, and property
owned by a third party has never been part of someone else’s spouse’s elective
share estate.
c. The other piece of property was Totten (savings account) trust to the estate created by
Jean.
i. Terms are that Jean has access to the Totten trust and has no obligation to
account to anyone for the money. The money at her death goes to the person
named on the bank card (Nina). Does George’s election against the will reach
the Totten trust?
1. Nina is not a joint tenant.
2. Under the terms of the account, Nina gets the property only if George’s
claim does not get it first.
a. The surviving spouse’s right of election can beat anyone else.
3. Yes. It was created during the marriage, W had the power of
appointment and the power to revoke. George’s claim does reach the
Totten trust
3. Cases illustrate the hopeful reach of the elective share: reach into non-probate assets of the
decedent.
4. Other tests
a. Illusory Transfer test
i. An illusory revocable trust is not invalid but it does count as part of D’s assets
subject to the elective share
ii. The trustee may have to contribute some of the trust assets to make up the
elective share
iii. Key: Amount of control retained by decedent spouse
1. look at it at the time when the account was established
b. Intent to Defraud
i. Issue. Whether the decedent spouse intended to defraud his surviving spouse of
her elective share
ii. Subjective intent
iii. Evidence of intent
1. The control retained by transferor
2. The amount of time between transfer and death
3. The degree to which the surviving spouse is left without an interest in
the decedent’s property or other means of support
c. Present Donative Intent
i. Issue. Whether the decedent had a present donative intent to transfer a present
interest in the property. This test focuses not on what the transferor retained, but
on whether the transferor intended to make a present gift.
d. In some states, such as Connecticut and Ohio, revocable trusts and other nonprobate
transfers are not subject to the elective share.
e. Which law applies when decedent lived in one state and owned property in another?
i. Rule: the law of the decedent’s domicile governs the right to take an elective
share of property located in another state. (UPC 2-202)
ii. Other states apply the standard conflict of laws rule that the law of the state
where the real property is located governs the elective share in such real property.
iii. (2) Statutory Schemes
1. There is more difference here than in any other area of the law.
2. Many state legislatures have enacted statutes providing objective criteria for determining what
nonprobate transfers are subject to the elective share. They favor a clear list of non probate
transfers that are added to the probate estate to constitute a net estate or an elective estate against
which the surviving spouse may elect to take his or her statutory share.
3. Types
a. Net estate
i. Replaces the illusory transfer test
ii. NY Statute
1. Gives the surviving spouse $50,000 or one-third of decedent’s net
estate, whichever is greater, plus a personal property set aside.
2. The net estate includes the following nonprobate transfers
a. Gifts causa mortis
b. Gifts made within one year before death, except gifts < $11,000
per person
c. Savings account (Totten) trusts
d. Joint bank accounts, to the extent of D’s contribution
e. Joint tenancies and tenancies by the entireties, to the extent of
D’s contribution
f. Property payable on death to a person other than D
g. Lifetime transfers in which D retained possession or life
income or a power to revoke or a power to consume, invade, or
dispose of the principal
h. Pension plans or the like
i. Other property which D had general power of appointment
enabling him to appoint the property to whomever he pleases.
3. The amount of the elective share is reduced by deducting the value of
any interest, other than a life estate, which passes from D to the
surviving spouse by intestacy, by will, or by will substitute.
b. Elective estate
i. All property includible in D’s gross estate under the federal estate tax, whether or
not D files an estate tax return.
1. If a nonprobate transfer is taxable at death, the surviving spouse can
reach it.
2. Inclusion of all things D has and gave away during lifetime
iv. (3) The Uniform Probate Code
1. (1969) Augmented Estate – the probate estate augmented with certain nonprobate transfers –
KNOW THIS FOR EXAM
a. The surviving spouse is entitled to an elective share of one-third of the augmented estate.
b. Includes the following nonprobate and inter vivos transfers made without consideration at
any time DURING THE MARRIAGE
i. Any transfer under which D retains the right to possession or income from the
property; (date of death value)
ii. Any transfer which D can revoke or invade or dispose of the principal for his
own benefit;
iii. Any transfer in joint tenancy with someone other than the spouse;
iv. Any transfer made within two years before death exceeding $3,000 per donee per
year (now the Federal gift max amount exempt is $11,000, still $3K now);
v. Property given to the surviving spouse during life, including a life estate in a
trust and property received by the spouse at death derived from D, such as
insurance or pensions.
c. Expressly excludes life insurance payable to a person other than the surviving spouse in
that it is not ordinarily purchased as a way of depleting the probate estate and avoiding the
elective share of the spouse.
d. Where does the money come from to fund the elective share?
i. (1) Take out property she has already received.
ii. (2) The rest of the elective share comes from the net probate estate
iii. (3) The beneficiaries of the probate state have their share reduced pro rata.
c. Augmented Estate Example (class hand-out): (the 1969 version analysis)
i. Probate Estate - $800K
ii. Add: Blackacre added back at date of death value, $100K
iii. $100,000 cash in trust – Add, where decedent can revoke
iv. Joint tenancy with brother – Add $50K back
v. $15K cash to Sally – Add back $12K
vi. AT&T stock – Add back $200K at date of death value
vii. Life insurance policy payable to W – Add back $100K – only add life insurance into the augmented estate if
payable to wife, if policy on decedent’s death to other person, you DON’T add back
viii. During the marriage W received $1.25 mill from father’s estate – Not relevant in 1969 UPC
1. Augmented Estate: $1,362,000 X 1/3 (share of estate) = $454,000
2. How do we fund $454K? First: property to surviving spouse – Stock and life insurance total
$300K - $154 left to distributed from
a. Second, Net probate estate $800,000 - $154K = $646K
b. Entire $646K will go to son and daughter, they will share amount
ix. She must decide if $300K life estate is worth as much or more than $154K cash now. How old is she?
d. 1990 UPC –
i. Fractional proportion is eliminated, sliding scale
1. Here, she can receive up to 50%
ii. Add into augmented estate, the value of surviving spouse’s estate on decedent’s date of death.
1. $1.5 mill gift from her father makes estate worth: $2.862 million
2. 50% = $1.431 million
iii. How do you fund $1.431 million?
1. Subtract her half of estate $1.5 mill, so 0.
2. The wealthier spouse survived, so elective share produces 0.
3. (1990) Closer to the result of a community property system
a. Basic concept: add up all the property of both spouses and split it according to a
percentage based on the length of the marriage.
b. Includes in the augmented estate many transfers made before marriage, as well as transfers
made during marriage, where D retained substantial control of the property.
i. Includes property or powers received from others. (Mimics the IRS code).
c. Theory: To implement the partnership theory by increasing the entitlement of a surviving
spouse in a long-term marriage in cases in which the marital assets were
disproportionately titled in D’s name.
d. How is the augmented estate computed?
i. Determine the elective share percentage
1. under a schedule: 3% after one year of marriage, growing to 50% after
15 years of marriage
ii. Determine the value of the augmented estate. Add up the following
1. value of D’s net probate estate
2. value of D’s nonprobate transfers to others, consisting of will-substitute-
type intervivos transfers made by D to others than the surviving spouse
3. value of decedent’s nonprobate transfers to the surviving spouse,
consisting of will-substitute-type inter vivos transfers made by D to the
surviving spouse
4. value of the surviving spouse’s net assets at D’s death, plus the
surviving spouse’s nonprobate transfers to others
iii. Determine the “elective share amount
1. multiply the augmented estate by the elective share percentage.
iv. Note: Must the surviving spouse accept a Life Estate
1. Once the elective share is determined, when the surviving spouse elects against the will, she is
usually credited with the value of all interests given her by the will. If the amount of the bequests
to the surviving spouse does not satisfy the elective share, the difference must be made up either by
pro rata contributions from all other beneficiaries (majority rule) or from the residuary state
(minority rule).
2. If the living spouse is left with a life estate, must she accept the life estate or its value in partial
satisfaction of her elective share?
a. 1969, 1990 UPC – the surviving spouse who rejects the life estate is charged an amount
equal to one-half the total value of the property subject to the life estate.
i. The surviving spouse is thus forced to take the life estate in order to cause as
little distortion in D’s estate plan as possible.
b. 1993 UPC – provides that a life estate renounced by the surviving spouse is not charged
against her elective share.
c. Two sates offer only a life estate as the elective share (Connecticut and Rhode Island)
i. A surviving spouse can take under the will or elect to take a life estate as the
forced share.
e. Waiver
i. Overview
1. A spouse can waiver her rights to the elective share through a premarital agreement.
a. Uniform Premarital Agreement Act – recognizes the enforceability of premarital
agreements. Enacted in over half the states.
b. Every separate property state recognizes the validity of premarital agreements, enforcing
waiver of the right of election.
ii. UPC § 2-213 Waiver of Right to Elect and of Other Rights
1. (a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead
allowance, exempt property, and family allowance , or any of them, may be waived, wholly or
partially, before or after marriage, by a written contract, agreement, or waiver signed by the
surviving spouse.
2. (b) A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:
a. (1) he or she did not execute the waiver voluntarily; or
b. (2) the waiver was unconscionable when it was executed and, before execution of the
waiver, he or she:
i. (i) was not provided a fair and reasonable disclosure of the property or financial
obligations of the decedent;
ii. (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of
the property or financial obligations of the decedent beyond the disclosure
provided; and
iii. (iii) did not have, or reasonably could not have had, an adequate knowledge of
the property or financial obligations of the decedent.
3. (c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
4. (d) Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the
property or estate of a present or prospective spouse or a complete property settlement entered into
after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead
allowance, exempt property, and family allowance by each spouse in the property of the other and a
renunciation by each of all benefits that would otherwise pass to him or her from the other by
intestate succession or by virtue of any will executed before the waiver or property settlement.
iii. In re Estate of Garbade (NY 1995)
1. Court is very harsh on surviving spouse who now claims she was inadequately advised. Court says
tough luck
iv. In re Griff (NY 1998)
1. Court takes more of a nuanced view and sends it back to determine if the terms were too harsh and
if spouse received effective counsel.

4. Rights of a Surviving Spouse in Community Property


a. Basic Information
i. Ten states are either community property or allow the election of community property in the distribution of
marital assets (Louisiana, Texas, New Mexico, Arizona, California, Nevada, Washington, Idaho, Wisconsin,
Alaska)
ii. Husband and wife own the earnings and acquisitions from earnings of both spouses during marriage in
undivided equal shares.
1. whatever is bought with earnings is community property
2. all property that is not community property is the separate property of one spouse or the other, or in
the case of a tenancy in common or a joint tenancy, both.
3. Separate property
a. Property acquired before marriage
b. Property acquired during marriage by gift or inheritance
4. Income from separate property
a. Idaho, Louisiana, Texas – becomes community property
b. Other states – retains its separate character.
5. Rules re: property acquired before marriage with payments after marriage
a. Inception-of-title rule. If purchased before the marriage then it remains separate property.
b. Pro rata share rule – divide the proceeds between separate and community property
according to the proportion of payments paid.
6. By agreement, separate property may become community property or vice-versa.
7. Upon the death of one spouse, the deceased spouse can dispose of his or her half of the community
assets. The surviving spouse owns the other half, which is not subject to testamentary disposition
by the deceased spouse.
8. Property management
a. I.e., sale, leasing, or mortgaging the property or subjecting the property to creditors.
b. Each state has statutes on this matter
i. Texas. W has the sole management power over her earnings kept separate and H
over his. If the earnings are commingled, they are subject to the joint
management of the spouses.
ii. California. Either H or W, acting alone, as the power to manage community
property. Ordinarily, statutes require both spouses to join in transfers or
mortgages of community real property.
c. In exercising management power, one spouse may sell community property to a purchaser
for a valuable consideration, but a spouse cannot freely give community property.
i. States give various remedies to the nondonor spouse in case of a gift to a third
party.
b. Putting the Survivor to an Election
i. “Widow’s Election”
1. Involves a will executed by the husband devising all the community property in trust to pay the
income to his wife for life, with remainder to others on the wife’s death, and requiring the wife to
elect between surrendering her half of the community property and taking under H’s will.
a. If the widow wants to share in H’s trust, she must surrender her CP.
b. Creates, at the death of spouse, one trust of all the CP paying the widow all the income for
her life. [If the widow chooses the CP, she forfeits the life estate in H’s property]
2. Estate and gift tax advantages
a. Widow made an exchange for consideration, receiving a life estat in H’s half of the CP in
exchange for transferring a remainder interest in her half of the CP
b. Generally not recommended by estate planners.
ii. Alternative: Plan by H and W to transfer all the CP into a revocable trust, paying income to H & H for their
lives and for the life of the survivor, remainder to their children or others.
1. It becomes irrevocable at the death of one spouse.
5. Migrating Couples and Multistate Property Holdings
a. Conflict of Laws rules
i. (1) The law of the situs controls problems related to land.
ii. (2) The law of the marital domicile at the time that personal property is acquired controls the
characterization of the property (separate or community)
iii. (3) The law of marital domicile at the death of one spouse controls the survivor’s marital rights.
iv. Note. Although the state of the situs has the power to control its land, it may choose to apply the law of the
marital domicile.
b. Moving from a Separate Property State to a Community Property State
i. Major problem is in this case. A couple moves from Utah to Arizona. The property is all his because it
retains its ownership. He dies. There is no elective share provision and the will gives everything to a third
party. What can the widow do?
ii. Response.
1. Legislation operates in the reverse of CP-CL.
2. 4 states (of 8) (Ca, La, Wa, Id.)
a. New class of property: quasi-community property – property brought into the state which
is not CP (because it was not acquired in CP state). Property which, when acquired, if it
had been acquired in a CP state, is treated as if it is CP. The surviving spouse gets half of
it.
b. The problem is that only some of the states (either CL or CP) have addressed this problem
of legislation.
c. Moving from a Community Property State to a Separate Property State
i. Rule. Property retains its ownership from the time it was acquired. The surviving spouse then gets to elect
against the decedent’s share (1/2 of the 1/2). This is to the benefit of the surviving spouse.
ii. Response.
1. Under the statute, the CP is treated as CP and the surviving spouse gets half. But, the surviving
spouse does not get an elective share on the CP brought into the CL state.
6. Spouse Omitted from Premarital will
a. Estate of Shannon
i. Lila married decedent Russell in 1986. H executed a will in 1974 giving his entire estate to his daughter,
Beatrice, or to his grandson Donald, if Beatrice was no longer alive. H passed away in 1988. Beatrice
became executrix of the will. Lila contested the will arguing that she was a pretermitted spouse and
therefore, she was entitled to take under the will under California law.
ii. PH. The probate court found in favor of Beatrice. Lila passed away and her son assumed the case.
iii. Analysis. This court reverses the probate court’s finding because Beatrice failed to rebut the “strong
statutory presumption of revocation of the will as to the omitted spouse based upon public policy.”
1. Beatrice could have rebutted the presumption in one of the following three bases, as outlined by the
California statute:
a. (1) T’s failure to provide for the spouse in the will was intentional and that intention
appears from the will
b. (2) T provided for the spouse by transfer outside the will in lieu of surviving spouse taking
under it
c. (3) Surviving spouse waived her rights to share in the estate
2. Lila gets ½ of the deceased’s Community Property, quasi community property and separate
property. An intestate share of deceased’s property
b. UPC § 2-301 ENTITLEMENT OF SPOUSE; PREMARITAL WILL
i. (a) If a testator’s surviving spouse married the testator after the testator executed his or her will, the
surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate
he would have received if the testator had died intestate as to that portion of the testator’s estate, if any, that
is neither devised to a child of the testator who was born before the testator married the surviving spouse
and who is not a child of the surviving spouse nor devised to a descendant of such a child or passes under
sections 2-603 or 2-604 to such a child or to a descendant of such a child, unless:
1. (1) it appears from the will or other evidence that the will was made in contemplation of the
testator’s marriage to the surviving spouse;
2. (2) the will expresses the intention that it is to be effective notwithstanding any subsequent
marriage; or
3. (3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be
in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred
from the amount of the transfer or other evidence.
ii. (b) In satisfying the share provided by this section, devises made by the will to the testator’s surviving
spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born
before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or
substitute gift under sections 2-603 or 2-604 to a descendant of such a child, abate as provided in section 3-
902.
1. Pretermitted share of the portion of the property which is not devised to a child or children of the
deceased spouse from a prior marriage
iii. Note. A spouse omitted from a will made BEFORE marriage is not able to reach NONPROBATE
ASSETS; her share is SOLELY of the PROBATE ESTATE. If the surviving spouse is richer than the
decedent spouse, the surviving spouse has no forced share BUT a richer surviving spouse omitted from a
premarital will can take an intestate share.

Section B. Rights of Issue Omitted from the Will


1. Protection from Intentional Omission
a. The Domestic Approach
i. A child or other descendant has no statutory protection against intentional disinheritance by a parent
(EXCEPT in Louisiana)
ii. However, disinheriting children, unless the parent does so in favor of a surviving spouse, is not favored by
the courts. Many courts will use construction theories to rectify the disinheritance.
1. Disinheriting a child will most likely bring a will contest suit.
iii. Louisiana
1. Legitime – forced share for children.
a. Protects against the disinheritance of children under 23, the mentally infirm, and the
disabled. Until 1995, it extended to all children.
2. Provision for disinheriting a child for “just cause”:
a. the child has raised his hand to strike a parent, or has actually struck a parent; but a mere
threat is not sufficient;
b. The child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury;
c. The child, being a minor, has married without the consent of the parent;
d. The child, after attaining the age of majority has failed to communicate with the parent
without just cause for a period of two years. . . .
e. The cause for disinheriting a child must have existed at the time of the will’s execution.
b. A look Abroad: Family Maintenance Statutes
i. Discretionary system – courts have the power to order distributions from the estate to the decedent’s
dependents based on their need and prevailing societal views of the morality of the decedent’s estate plan.
1. D’s property may be used to support those who were dependent upon D during lifetime. Including
a spouse, a former spouse who has not remarried, children, and others who were being maintained
by D.
2. Spouse is entitled to a provision “as would be reasonable in all the circumstances for a husband or
wife to receive, whether or not that provision is required for his or her maintenance.
3. Other eligible dependents are entitled to a provision “as it would be reasonable in all the
circumstances of the case for the applicant to receive for his maintenance.”
ii. Lambeff v. Farmers Co-Operative Executors & Trustees Ltd. (Australia)
1. P is the daughter of decedent. Decedent divorced P’s mother and left her without any support. D
then remarried. He left his estate, under a will, to his two sons by his de facto wife. P claims a
share of D’s estate.
2. The court analyzes the relationship between P and D. Furthermore, the court also looks at the sons
and what they are doing, including how much money they make and what the inheritance means to
them.
3. The court finds that because the daughter had attempted to make contact with the father,
unsuccessfully, that she is entitled to $20,000. Although her life is good and she has a career and
an income, it may have been better had her father supported her.
2. Protection from Unintentional Omission
a. Azcunce v. Estate of Azcunce (Florida 1991)
i. Issue. Whether a child who is born after the execution of her father’s will but before the execution of the
codicil to the said will is entitled to take a statutory share of her father’s estate when the will and the codicils
fail to provide for such child and all the other statutory requirements for pretermitted-child status are
otherwise satisfied. No.
1. The draft of the will, not signed, provided for Patricia
ii. Holding. The subject codicil republishes the original will, and therefore, the testator’s child who is living at
the time the codicil is executed (Patricia) is not a pretermitted child within the meaning of the statute.
iii. P’s arguments.
1. The will and codicils are ambiguous and therefore, the court should have accepted parol evidence
to show that T intended to provide for her.
a. The documents are not ambiguous on their face.
2. The draftsman made a mistake and therefore the will should be voided.
a. Draftman’s error is not a basis for voiding a will under Florida law.
iv. Patricia and the estate sued the attorney for damages.
1. The question before the court was whether Patricia and/or the estate have standing to bring the
suit.
a. The court found that Patricia did not have standing because, although privity of contract is
not required, she was not an intended third-party beneficiary (limited to beneficiaries on
the face of the will.
b. The estate always has standing, however, the damages are limited to attorney’s fees, etc.
The damage would not be calculated as to what Patricia lost, but it would be calculated as
to what the client lost when the attorney made a mistake.
i. Would there be a case for saying that the family was a client, and thereby,
Patricia would have standing?
b. Rules
i. Majority Rule
1. Privity of contract or
a. Testator’s personal representative has standing to sue because the estate is the successor in
interest to the testator.
2. Intended beneficiaries, either
a. Clear from the face of the will, or
b. By demonstrable competent evidence that he/she is an intended beneficiary.
ii. Minority Rule.
1. Privity of contract.
iii. UPC § 2-302 Omitted Children
1. (a) Except as provided in subsection (b), if a testator fails to provide in his will for any of his
children born or adopted after the execution of the will, the omitted after—born or after-adopted
child receives a share in the estate as follows:
a. (1) If the testator had no child living when he executed the will, an omitted after-born or
after-adopted child receives a share in the estate equal in value to that which the child
would have received had the testator died intestate, unless the will devised all or
substantially all of the estate to the other parent of the omitted child and that other parent
survives the testator and is entitled to take under the will.
b. (2) If the testator had one or more children living when he executed the will, and the will
devised property or an interest in property to one or more of the then-living children, an
omitted after-born or after-adopted child is entitled to share in the testator’s estate as
follows:
i. (i) The portion of the testator’s estate in which the omitted after-born or after-
adopted child is entitled to share is limited to devises made to the testator’s then-
living children under the will.
ii. (ii) The omitted after-born or after-adopted child is entitled to receive the share of
the testator’s estate, as limited in subparagraph (i), that the child would have
received had the testator included all omitted after-born and after-adopted
children with the children to whom devises were made under the will and had
given an equal share of the estate to each child.
iii. (iii) To the extent feasible, the interest granted an omitted after-born or after-
adopted child under this section must be of the same character, whether equitable
or legal, present or future, as that devised to the testator’s then-living children
under the will.
iv. (iv) In satisfying a share provided by this paragraph, devises to the testator’s
children who were living when the will was executed abate ratably. In abating
the devises of the then-living children, the court shall preserve to the maximum
extent possible the character of the testamentary plan adopted by the testator.
2. (b) Neither subsection (a)(1) nor subsection (a)(2) applies if:
a. (1) It appears from the will that the omission was intentional; or
b. (2) the testator provided for the omitted after-born or after-adopted child by transfer
outside the will and the intent that the transfer be in lieu of a testamentary provision is
shown by the testator’s statements or is reasonably inferred from the amount of the
transfer or other evidence.
3. (c) If at the time of execution of the will the testator fails to provide in his will for a living child
solely because h believes the child to be dead, the child is entitled to share in the estate as if the
child were an omitted after-born or after-adopted child.
4. (d) In satisfying a share provided by subsection (a)(1), devises made by the will abate under section
3-902.
iv. Classifications of pretermitted child statutes
1. (1)
a. Protect only children born after the execution of the will
b. Protect children alive when the will was executed as well as after borns
2. (2)
a. Missouri Type
i. The statute usually is drawn to benefit the children not named or provided for in
the will
1. it must appear from the will itself that omission of the child or other heir
was intentional
2. Extrinsic evidence of intent is not admissible
b. Massachusetts Type
i. The child takes unless it appears that such omission was intentional and not
occasioned by any mistake.
1. Extrinsic evidence is admitted to show both the presence or absence of
intent to disinherit
c. In re Estate of Laura (N.H. 1997)
i. Cecelia and Neil, who are not named in the will, claim a portion of the estate through the pretermitted
statute. They are barred because Neil Jr., their ancestor, was named and was disinherited. When a person
writes a will that disinherits a child, children of the disinherited ancestor are barred from recovery under the
pretermitted child statute.
ii. Issue. When T, in his will, specifically disinherits a child, whether the disinheritance includes the child’s
issue or whether the child’s issue become pretermitted heirs.
iii. Rule. When a testator’s child has been named, referred to, or is a devisee or legatee under the will, the
child’s issue cannot invoke the statute even if the issue are neither named, referred to, nor devisees or
legatees under the will.
1. Statute covers children and children’s issue not provided for in the will.
a. Every child born after the decease of the testator, and every child or issue of a child of the
deceased not named or referred to in his will, and who is not a devisee or legatee, shall be
entitled to the same portion of the estate, real and personal, as he would be if the deceased
were intestate.
d. Estate of Treloar (N.H. 2004)
i. Issue. Whether, under Estate of Laura, an indirect reference to a predeceased child in T’s will is sufficient
to preclude a grandchild’s claim as a pretermitted heir. No.
ii. Because neither Evelyn nor her children were mentioned in the last will of T, the grandchildren are
pretermitted grandchildren and thus entitled to a share of T’s estate.
e.

CHAPTER 9 BUILDING FLEXIBILITY INTO TRUSTS: POWERS OF APPOINTMENT

Section A. Introduction
1. Types of Powers
2. Does the Appointive Property Belong to the Donor or the Donee?
a. Irwin Union Bank & Trust Co. v. Long
b. Note: Tax Considerations for Powers

Section B. Creation of a Power of Appointment


1. Intent to Create a Power
2. Powers to Consume
a. Sterner v. Nelson

Section C. Release of a Power of Appointment


1. Seidel v. Werner

Section D. Exercise of a Power of Appointment


1. Exercise by Residuary Clause in Donee’s Will
a. Beals v. State Street Bank & Trust Co.
2. Limitations on Exercise of a Special Power
3. Fraud on a Special Power
4. Ineffective Exercise of a Power
a. Allocation of Assets
b. Capture

Section E. Failure to Exercise a Power of Appointment


1. Loring v. Marshall