TRUSTS & ESTATES

GENERAL NOTES
• Locke: what belongs to the parents is the natural right of their children; natural right to inherit
(THIS WAS ON THE TEST).
• Old English: “last will and testament”
o Will: disposed of real property
o Testament: disposed of personal property
o Person dying testate devises real property to devisees and bequeaths personal property to
legatess
• Heirs at Law: those who would take property in the case of intestacy.
• Standing to Contest Will: only those named in will or who would take by intestacy can contest.
• If no will is probated w/i 3 years, the presumption of intestacy is conclusive.
• Reasons to have a will besides devising money:
o To elect an executor (personal rep) and give him more power than intestacy allows.
o To establish a plan for children/elect guardian.
• Will is always revocable until dead unless testator lack testamentary capacity.
• OVERRIDING PRINCIPLE OF INTENT
o REST 3rd Prop §10.1: Donor’s Intention Determines Meaning of Donative Document
 The controlling consideration in determining the meaning of a donative document is
the donor’s intention.
 The donor’s intention is given effect to the maximum extent allowed by law.
• Reasons for Estate Planning:
o To secure property for beneficiaries.
o To provide for transfer of those assets at least expensive tax cost.
o To ensure that descendants receive property the the most useful form for them.
• Strict construction should NOT be given to a statute when it thwarts the intent of the testator
(Minary v. Citizens Fidelity Bank).
• If a gift fails for whatever reason, it goes to residuary if there is a residuary; if no residuary then
failed gift passes through intestate succession.

PROBATE
• Testate: die with a will
o Have an executor
o Primary responsibility is to prove the will
• Intestate: die without a will and your estate will be divided based on intestacy statute
o Have an administrator
• Probate occurs in 2 cases: (1) Decedent had will and probate property, or (2) intestacy.
o It judicially occurs where the decedent was domiciled
• Probate Property: property that passes through probate under decedent’s will or by intestacy.
o Passes by will/intestacy, may require court proceeding w/ appointment of a personal
representative to settle the probate estate.
• Nonprobate Property: property passing outside of probate under instrument other than a will.
 o No court proceeding: just passes in accordance w/ terms of the instrument.
o Most property passed at death is nonprobate.
 Ex) joint tenancy, life insurance, POD contracts (pensions, IRAs), trusts created prior
to death.
o Property held in a testamentary trust created under the decedent’s will passes through probate
o Property put in an inter vivos trust during the decedent’s life does not pass through probate
• Purposes of Probate:
o 1) Proves will.
o 2) Provides evidence of transfer of title to new owners (clears title and makes it marketable
again)(clear chain of title)
 CLEARING TITLE WILL BE ESSAY ON EXAM.
o 3) Protects creditors by providing procedure for debt payment.
o 4) Manage/protect decedent’s assets.
o 5) Distributes property to those intended after the decedent’s creditors are paid.
• URICE: Purposes of Probate:
o 1) Locate decedent’s assets
o 2) Satisfy the legitimate claims of the decedent’s creditors
o 3) To clear title and report who the new owner is
o 4) Distribute the decedent’s property in the proportions, manner that the decedent said in the
will or that the legislature declared in the statute for probate distribution
• Personal Representative: a fiduciary who collects decedent’s property, manages property during
administration of estate, processes claims of creditors/tax collectors, and distributes property to
those entitled.
o Appointment of personal representative is first step in probate process.
o Personal representative is called an EXECUTOR when testate decedent names him in the
will.
o When no personal representative is chosen by decedent in will, or if executor is unwilling or
unable to serve, or if decedent dies intestate, then court will name the personal representative
called an ADMINISTRATOR.
 Statutory list of relatives determines who will be administrator.
• Where does probate occur?
o Probate occurs where decedent was domiciled.
o Real property probate occurs where property is located.
o 1 court in each county has jurisdiction over administration of decedents’ estates, which can be
called surrogate’s court, orphan’s court, probate division of district court, or chancery court
(all “probate courts”).
• When does probate occur?
o As soon after death as possible.
o Non-claims statutes are a large reason for rapid, facilitated probate proceedings.
o If no will probated w/i 3 years, presumption of intestacy is conclusive.

PROBATE PROCEDURE
• 1) Opening Probate:
o Begins in primary or domiciliary jurisdiction (where decendent was domiciled).
o Ancillary administration is required in the jurisdiction where real property is located for 2
reasons:
  1) To prove title in the situs state’s recording system.
 2) To subject the out-of-state real property to probate in that area so creditors in that
area may be paid.
 Ancillary can be costly b/c have to hire new attorney and personal rep in that area.
o Then, court issues of letters of testementary (to executor) or letters of administration (to
administrator) authorizing person to act on behalf of estate.
• 2) Formal vs. Informal Probate:
o UPC provides for both Ex Parte Probate (informal probate/in common form) and Notice
Probate (formal probate/in solemn form). Person asking for letters can choose.
o No proceeding can be initiated more than 3 years after the death
 Informal Probate: Personal representative administers estate w/o going back to court
and has broad powers like a trustee to do everything w/o court approval.
• Can only occur if will is uncontested or, in absence of will, if all heirs agree to
informal filing.
• Estate is closed w/ only a sworn statement by personal representative that
everything has been done properly.
• Usually a trusted family member.
• Much cheaper.
• Informal probate is the norm, but an interested party may petition for formal
probate at any time during administration of estate.
 Formal Probate: a litigated judicial determination after notice to interested parties.
• May be used to probate a will, to block an informal proceeding, or to secure a
declaratory judgment of intestacy.
• Formal proceedings become final judgments if not appealed.
• Court supervises all actions of personal representative (inventory, appraisal, debt
payment, attorney fees, etc.) which can be time-consuming and costly.
• 3) Barring Creditors of Decedent:
o Non-claim Statute: all states have statute barring creditors claims w/i specified time period.
 Can either be time period after probate has begun (2-6 months, UPC=4) or time period
after death regardless of probate (1-5 yrs, UPC=1).
o Usually creditors are only notified by newspaper after probate opens.
o USSC has held that DPC requires actual notice to known or reasonably ascertainable
creditors before they are barred by short-term statutes running from commencement of
probate.
o 1-year SoL from decedent’s death is believed to be constitutional even w/o notice.
 Most states have such a statute.
• 4) Closing the Estate:
o Many things must happen before closing estate, even if everyone is amicable.
 Creditors paid, titles cleared, taxes paid, tax returns audited and accepted by tax
authorities, real estate may need to be sold.
 Judicial Approval: court must grant discharge by approving personal rep’s actions to
relieve him of liability unless a SoL runs on cause of action against him.
• Cost of Probate
o Mainly the “high cost of dying” comes from court fees, commission of personal rep,
attorney’s fees, and sometimes appraiser fees, and guardian ad litem fees.
WILL SUBSTITUTES (Discussed in more details later)
• 4 core Will Substitutes (nonprobate system): life insurance, pension accounts, joint accounts
(PODs, bank, brokerage, mutual funds), and revocable trusts.
o No Wills Act formalities are required and avoids probate.
o Revocable Trust: most flexible will substitute b/c donor can draft very precise dispositive
and administrative provisions.
 Created by deed of trust or declaration of trust.
o Imperfect will substitute: joint tenancy (not revocable).

INCAPACITY
• Ordinary Power of Attorney: an agency relationship whereby the agent, called an attorney-in-
fact (not necessarily a lawyer), is given written authorization to act on behalf of the principal only
until the principal is incapacitated (which is no use to planning for incapacity).
• Durable Power of Attorney: continues throughout the incapacity of principal until principal dies.
o Principal can terminate at any time if competent.
o Attorney-in-fact owes fiduciary duties of loyalty, care, and obedience.
o Must be created in writing and some states require witnesses.
• Person and property are both at issue.
• Common law: terminated upon the principal’s incapacity
• Modern law: terminates at the principal’s death

Shaw Family Archives v. CMG Worldwide (A person may not dispose of a property right by will
that she does not own at the time of her death)
• Marilyn Monroe's estate sued the Shaw Family Archives ("SFA"), which owns in copyright most
famous images of Monroe.
• Monroe's estate alleged that SFA violated Monroe's publicity rights under Indiana's Right of
Publicity Act b/c it sold shirts at a store in Indianapolis w/ Monroe's photograph.
• Monroe’s estate alleged that it owned Monroe's publicity rights b/c the residuary clause in
Monroe's will included “all property to which she shall in any way be entitled.”
• SFA argued that Monroe could not grant those publicity rights in her will b/c postmortem publicity
rights didn’t exist at the time of her death so she could not devise what she did not own.
Holding
• Ruling for SFA; at the time of Monroe's death in 1962 postmortem rights of publicity were not
recognized in either N.Y., CA, or IN.
• Under both N.Y. and CA law (the only two states in which Monroe could have been domiciled), a
person may not dispose of by will a property right that she does not own at the time of death.
• B/c Monroe did not own a postmortem right of publicity at the time of her death, she could not
have devised such rights in her will, so Monroe’s estate could not own Monroe's publicity rights.
• Even if a postmortem right of publicity in Monroe's persona could have been created after her
death, both CA’s and IN's right of publicity statutes provide that an individual cannot pass by will a
statutory property right that she did not own at the time of death; rather, such publicity rights could
only be transferred to statutorily specified heirs.
Notes
• Problem: Who would get this right if the court allowed her estate to acquire it after her death?
o Residual clause or her heirs at law? We couldn’t know.
Shapira v. Union National Bank (Public policy does NOT preclude the fulfillment of restrictions
upon marriage as a condition of inheritance, BUT conditional gifts must be constitutional and
reasonable)
• Declaratory judgment: P is asking the court to define the rights of the parties, i.e. what P is entitled
to in the will; court is NOT being asked to make an award
• Shapira brought action to have the part of his father’s will declared void which specified that he
must marry a Jewish girl to get his inheritance.
• Son sued saying will is unconstitutional and contrary to public policy.
• Son argues that the court’s enforcement of the will would be state action limiting marriage which is
protected by the 14th amendment.
Holding
• Will’s restriction is valid; Court is not being asked to enforce any restriction on marriage, but is
being asked to enforce the T’s restriction upon his son’s inheritance.
• Conditioning testamentary gifts on religious belief of beneficiary is impermissible, but
conditioning them on marriage to person of certain religion is permissible.
Notes
• Dicta
o Right to receive property at death is a matter of positive law…it is not a natural right nor one
guaranteed by the U.S. Constitution
o You have property…where is your right to transfer that? To inherit property?
• Incentive Trusts: these types of conditional gifts are usually made in trust nowadays.
• Incentive trusts are increasing in prevalence.
• Gift over: if A doesn’t take it goes to B
o Shapira said that if Daniel didn’t fulfill his condition then it went to the state of Israel
• URICE: Usually, incentive trusts do not fail and are not offensive to public policy.
• To prevent backfire in incentive trusts, settlor should use a discretionary trust w/ a trustee he trusts.
• Should a dead hand be able to control their heirs from the grave?
o Justification: society’s total wealth is usually maximized by permitting individuals to decide
what is best use of their property (rational choices to maximize wealth).
• The bank (D) is the corporate fiduciary/trustee.
• Why did the father choose a bank instead of a family member?
o B/c he wanted full enforcement of his donative intent instead of a lenient family member.
• Reasonableness Test: this was only a partial/reasonable restriction on right to inherit or marry.
o Maddox v. Maddox is an example of an unreasonable restriction b/c there were not enough
eligible people to marry in that case.
 Shapira’s lawyer screwed up by not offering stats of the lack of Jews in the community.

*MEMORIZE*
REST 3rd Prop §10.1: Donor’s Intention Determines Meaning of Donative Document
• The controlling consideration in determining the meaning of a donative document is the donor’s
intention. The donor’s intention is given effect to the maximum extent allowed by law.

PROFESSIONAL RESPONSIBILITY (Duties to intended beneficiaries)

Simpson v. Calivas (Attorney drafting a will has a duty to an intended beneficiary, and an intended
beneficiary has 3rd-party beneficiary status b/c of the foreseeable nature of the damages (no privity
needed); Even an explicit finding of actual intent by a probate court cannot be the basis for collateral
estoppel)
• Simpson, Jr. (P) sued his lawyer who drafted the will of his father for breach of K and negligence
b/c the lawyer, Calivas (D) failed to draft a will which incorporated his actual intent to leave his
land to P in fee simple.
• Will left all real estate to P except for a life estate in their “homestead located at Piscataqua Road”
which was left to P’s stepmother.
o The problem is that “homestead” is ambiguous.
• P and stepmother filed a joint petition in Probate court to determine if “homestead” means just the
house or all the surrounding land as well.
• Probate court took extrinsic evidence after finding “homestead” to be ambiguous and gave the step-
mother all of the real property on the particular road.
• P negotiated w/ step-mother to buy the life estate for $400k, then filed this malpractice action
pleading K action as a 3rd-party beneficiary and negligence.
• Superior court granted SJ on collateral estoppel for lack of duty to P on D’s part and DV for lack of
evidence of breach of K.
Issue
• Does will drafting attorney owe duty of reasonable care to intended beneficiary? YES.
• Does collateral estoppel prevent this beneficiary from bringing a malpractice action against
attorney? NO.
Holding
• Reversed for P; Court looks at other jurisdictions and decides that drafting attorney does owe a
duty to 3rd-party beneficiary due to foreseeability of injury, which is an exception to privity
requirement.
• Court reject’s D’s collateral estoppel argument that Probate court considered all evidence of actual
intent b/c the finding of actual intent in the Probate court was not essential to its judgment.
o Probate court’s task is to determine intent based on writing in the will, not to determine actual
intent, so the Probate court and superior court have different objectives, making collateral
estoppel inappropriate.
Notes
• Extrinsic evidence can be permitted to resolve ambiguity unless it contradicts express writing.
• Probate court has limited jurisdiction: all it was asked to do was interpret express intent, NOT
actual intent.
o Look up this issue in the casenotes.

CONFLICTS OF INTEREST

A v. B (Under NJ rules of professional conduct (RPC), when a law firm that hears information from
outside confidential communication of a H’s ommission which materially affects the H and W’s
reciprocal wills made w/ that firm, and the ommission constitutes a “fraudulent act,” the law firm is
permitted but not required to inform the wife of the ommission notwithstanding any duty of
confidentiality)
• Husband and wife retained Hill Wallack for estate planning, they signed “waivers of conflict of
interest,” and a clerk entered their last names into the system spelled incorrectly.
• The following year, a mother retained same firm for paternity claim, and their info was entered in
correctly so the estate planning and family law departments were not coordinated.
• Hill Wallack found out, notified husband, he did not object to conflicts of interest, retained another
 firm, agreed to paternity test which revealed he’s father, child support negotiation failed.
• Hill Wallack withdrew from representing mother, then told husband they think they have to tell
wife about the child b/c some of her money might go to it.
Issue
• Conflict b/t 2 fundamental obligations of lawyers: duty of confidentiality and the duty to inform
clients of material facts.
Holding
• Hill Wallack is permitted but not required to disclose the illegitimate child to the wife.
• The term “fraudulent act” in RPC1.6(c) encompasses the husband’s deliberate ommission of the
existence of his illegitimate child b/c this information was material to the creation of the parties’
estates.
• Hill Wallack didn’t learn of the illegitimate child through confidential communication w/ husband.
• Also, the conflict of interest waivers by the parties played a role in this decision.
• The illegitimate child here is a contingent residuary beneficiary b/c he is the testator’s issue.
• Under the couples’ reciprocal wills, if wife predeceased husband the child would get her assets.
• RPC 1.6(c): Permits, but does not require, lawyer to reveal confidential info to extent lawyer
reasonably believes necessary “to rectify consequences of client’s…fraudulent act…in furtherance
of which the lawyer’s services had been used.”
Notes
• Reciprocal Will: where husband leaves everything to wife if he predeceases her, and vice versa.
o Most common form of will for husband and wife.
o Also called “Mirror-Image Will” or “Mirror Will.”
o Problem: Surviving spouse might remarry and have another child.
• To solve this, don’t make the gift outright to the surviver; put it in trust for life.
• Issues = Descendants.
• The conflict of interests agreement was poorly drafted in this case.

TAXATION
(Get your vomit bag ready)

WEALTH TRANSFER TAX

• ESTATE TAX
o Based on total value of the decedent’s probate and nonprobate property, reduced by
deductions for the decedent’s debts, transfers to the decedent’s spouse or to charity, and
various costs of administering the estate
o Executor/administrator normally pays estate tax before making final distributions
• INHERITANCE TAX
o Levied on the transferee
o Amount each beneficiary pays depends on value of the property received and on beneficiary’s
relationship with the decedent
• Liability
o Donor has primary liability for paying
o The executor of decedent’s estate has personal liability for payment of the estate tax but is
entitled to reimbursement out of the decedent’s estate
FEDERAL TAX (IN GENERAL)
• Federal tax is a tax on the privilege to transfer property
o Transfers of property above a certain level will likely be taxed by the federal government post
January 1, 2011
• Not every transfer at death is taxed by the federal government
o EXCEPTIONS TO TAXATION:
• Permit unlimited transfers during lifetime or at death between spouses
• There is also unlimited charitable deduction

FEDERAL GIFT TAX

• What is a gift?
o 1) Donative intent
o 2) Delivery
o 3) Acceptance
• Gift is complete when a donor relinquishes control.
• Tax code does not define “gift” but it does measure value of a gift at “Fair Market Value.”
• A gift is made (in either direction) where a spread exists b/t fair market value and price paid.
o Ex) If you sell an item worth $10k (fair market value) for $5k, the difference ($5k) is a gift.
o Ex) If you sell the same item for $20k, a $10k gift has been made to the seller.
o Ex) If one buys a sale item 1/2 off, there is NO gift b/c fair market value changes to sale
price.
• EXCEPTIONS TO GIFT TAX:
o 1) Annual exclusion amount-up to $13,000 per year
o 2) Direct payments made to healthcare providers or educational institutions
• Joint Tenancies
o Unmarried joint tenancy is treated like a tenancy in common for gift tax purposes.
o If A transfers to A & B either as tenancy in common or joint tenancy, tax code treats it as a
tenancy in common if unmarried.
o Remember gift must be completed by relinquishment.
o If A transfers to A & B as joint tenants, has a gift been made? Yes, for 50% of property b/c
A relinquished for 50% of the property.
o If Mother transfers $100k into a bank account to mother and daughter as JTWROS, has a gift
been made?
• NO! b/c the donor has not relinquished anything.
• BUT, a gift has been made if the daughter withdraws money in the amount of that
money.
• If mother gets ticked off, she can spend it all.
• KEY IS RELINQUISHMENT!
• YEARLY ANNUAL EXCLUSION
o Gifts up to $13k per year per donee w/ no gift tax liability.
o Can give $13k per year to 100 people w/o gift tax if you want.
o Gift MUST be a present interest, no future interests.
• This can be a problem w/ CHILDREN who shouldn’t run around w/ a lot of money.
• Congress addressed this by making an exception allowing a very specific trust
 (IRC§2503c).
o To qualify, donor must give trustee the power to expend all the income
and principal on the donee before he reaches 21 AND unexpected
income/principal must pass to donee at 21 or donees estate if he dies.
o If trustee only has power to expend income on donee but not the full
value of the property, then only the value of the income interest qualifies
as a present interest worthy of the exclusion.
o Only the minor can have a beneficial interest in the property.
o Crummey Powers: a provision in an irrevocable or discretionary trust that can convert a
future interest into a present interest (thus qualifying for the annual gift deduction) by giving
the beneficiary a power to withdraw property from the trust.
• This is b/c the power of withdrawal (even one limited to a use w/i a few days) is a
general power of appointment making the donee the owner.
• A Crummey Power gives the trust beneficiaries the right to immediately withdraw their
share of the gift from the trust. This power generally lasts for 30 days from the date of
the gift. If the beneficiary does not withdraw the gift during the 30 day period, the gift
remains in the trust and is available for use as the trustee directs. This is the most
common method to fund an irrevocable insurance trust.
• Ex) If Dad were to make a $39k gift (3 kids, $13k each) to a trust that included
Crummey powers, the trustee would notify each beneficiary/child that they have
a 30 day right to withdraw their 1/3rd share of the gift. The children understand
that if they do not withdraw the gift, the money will be used to pay the premium
on the $2,000,000 life insurance policy that they will ultimately inherit from the
trust. The end result = a $2,000,000 life insurance policy owned outside of
Dad’s taxable estate. He made tax free annual gifts to the trust for the premium
payments w/o incurring any gift taxes.
• NOTES/RECAP
o Federal Gift Tax: tax imposed on transfers of property by gift during the lifetime of the
giver.
o Donor pays the gift tax, not donee, but donee is liable if donor does not pay.
o No gift tax for $13k or less per year per donee (only for present interests; no future interests).
o Crummey Powers: a donor may convert what would otherwise be a future interest into a
present interest by giving a beneficiary of a discretionary trust a power to withdraw property
from the trust.
o No gift tax for tuition and medical expenses paid on behalf of any person if made directly to
the service provider (IRC2503(e).
o Joint Tenancy and Gift Tax: unmarried JTWROS is treated like tenancy in common for gift
tax purposes.

FEDERAL ESTATE TAX

• Tax on the decedent’s estate on the privilege of giving.
• Based on TOTAL value of decedent’s probate and nonprobate property reduced by deductions for
decedent’s debts, transfers to spouse or charity, and estate administration costs.
o Life insurance policy for decedent owned by employer w/ decedent having power to appoint
a beneficiary makes the policy fall w/i the estate tax.
• Executor or administrator pays estate tax before distributing so devisees don’t pay it directly.
 o Executor can be subject to personal liability if he does not pay estate tax.
• FORMULA: compute value of gross estate (all property owned and property over which decedent
had power) and subtract deductions (debts, marital and charitable deduction) to get the taxable
estate, add adjusted taxable gifts to get the tentative estate tax base, apply the graduated tax rate
schedule to get the tentative estate tax, finally subtract any other credits called unified credit or
exemption amount.
o Gross Estate:
 Includes probate estate, spouse’s elective share, entire value of joint tenancy property
if unmarried, annuities and employee death benefits (retirement plans, but not SS),
property where decedent has retained rights or powers, revocable transfers,
reversionary interests, transfers w/i 3 years of death, and value of property over which
decedent has general (not special or limited) powers of appointment (usually in trust).
o Exemption Amount/Exclusion Amount: amount that can be transferred at death w/o paying
federal estate tax (currently up to $3.5 million).
• NOTES
o Joint Tenancy: generally, entire value of unmarried JT property is included in decedent’s
gross estate.
 EXCEPTION: if it can be proved that surviving unmarried joint tenant contributed,
then the decedent’s share he paid for is all that is included in gross estate.
o Life Insurance Policy: included for federal estate tax b/c the right to change the beneficiary is
incidence of ownership so it is part of the gross estate.
o Revocable Transfers: inter vivos revocable trust is brought back into taxable estate at time of
death b/c of the right the decedent retained to amend.
 3 Year Rule: if the trust is made irrevocable (or the right over property is relinquished)
3 years or more prior to decedent’s death it stays outside the taxable estate.
o Reversionary Interests: if decedent maintains reversionary interest in property, it is brought
back into taxable estate ALSO SUBJECT TO 3 YEAR RULE.
o Power of Appointment: property where decedent has GENERAL power of appointment is
included in taxable estate b/c decedent can appoint it back to himself if he wishes under
general power of appointment.
o Executor or administrator pays estate tax before distributing so devisees don’t pay it directly.
 Executor can be subject to personal liability if he does not pay estate tax.

DEDUCTIONS

MARITAL DEDUCTION
• No gift tax or estate tax on unlimited amount of property transferred b/t spouses (other than certain
“terminable interests”) b/c the H and W are 1 unit.
• Based on theory that spouses are 1 economic unit so wealth-transfer tax is inappropriate.
• 5 requirements
o 1) Decedent must have been survived by his/her spouse.
o 2) Surviving spouse must be U.S. citizen or property must pass to a qualified domestic trust.
o 3) Value of the interest deducted must be includible in decedent’s gross estate.
o 4) The interest must pass from the decedent to the surviving spouse.
o 5) The interest must not be a “nondeductible terminable interest” w/i the meaning of
§2056(b) (b/c these are never taxed and anything that qualifies for marital deduction must be
taxed at some point).
  #5 is most commonly litigated and has 5 exceptions.
• 1) Estate trust exception: “to my wife for life, and to her estate when she dies.”
• 2) Limited survivorship exception (where beneficiary must survive decedent by
certain period if the period does not exceed 6 months and the beneficiary does
survive the period) (§2056(b)(3)).
• 3) Life estate plus power of appointment exception if beneficiary has power to
appoint trust corpus to herself or her estate, subject to 4 requirements in
§2056(b)(5).
• 4) Life insurance w/ power of appointment exception.
• 5) Qualified terminable interest property (QTIP) exception (QTIP Trust)
o In QTIP trust, decedent does not have to give surviving spouse a general
power of appointment.
o In QTIP trust, Congress is basically saying you can get around the
“nondeductible terminable interest” restriction on marital deduction if
certain conditions are met:
 Spouse must be entitled to all income for life,
 Trust property must be income producing or the spouse must
have the power to compel the trustee make the property income
producing, AND
 No person can have the power to appoint the property during the
spouse’s lifetime to any person other than the spouse.

CHARITABLE DEDUCTION
• Unlimited deduction if organization receiving gift qualifies under the Code.
• Charitable gifts will save estate taxes b/c the gift is not taxed to your estate.
• Remainders to charity are only subject to deduction (from fed income tax, estate tax, and gift tax) if
it is in an annuity trust, unitrust, or part of a pooled income fund, unless it is a remainder in a
personal residence/farm.

INHERITANCE TAX (on the privilege of taking)

• Tax levied on the inheriting party rather than the decedent’s estate.
o Fairer to devisees than estate tax b/c it accounts for how much each devisee will inherit.

STATE WEALTH TRANSFER TAX

• Economic Growth and Tax Relief Reconciliation Act of 2001replaced the credit for state death
taxes w/ a deduction for state death taxes.
• Politics pay a huge part in state death taxes and it is always changing.

GENERATION-SKIPPING TRANSFER TAX (GST)

• Transfer tax imposed at a rate equal to the highest estate tax rate (currently 45%) on gifts or estate
transfers where the transferred assets pass, or will pass, to recipients 2 or more generations below
the donor, w/o being subject to the imposition of estate tax at the intervening generations.

INTESTACY
• Testate
o Die leaving a will that provides for the disposition of their property
• Intestate
o Die without a will
• Intestacy governs the distribution of an intestate decedent’s probate property
o Governed by the state’s statute of descent and distribution
o Law of the state where the decedent was domiciled at death governs the disposition of
personal property
o Law of the state where the decedent’s real property is located governs the disposition of real
property
o Legislature looks at protection of spouse and of children
• Def: estate plan by default employing default rules when there is no will (over 50% of U.S.).
• Very state specific for intestacy statutes.
• Nemo est haeres viventis = No living person has heirs! ON EXAM
o Important b/c “heirs apparent” have no property interest (just an expectancy).
• No living person has heirs but only heirs apparent who have mere expectancies which cannot be
transferred at law.
o A mere expectancy-a possibility
 Not a legal interest
 Can be defeated by
• Heir apparent’s death prior to death of LP (living person)
• LP’s execution of a valid will (with no partial intestacy) that excludes heir
apparent
• Creditors get paid before beneficiaries.
• Partial Intestacy: where only some of decedent’s property is devised in a will, rest passes through
intestate succession.
• ON EXAM:
o Who are A’s heirs?
 She is a living widow with children B, C, D…C predeceased her
 B has one child, C has two, and D has two
 She has NO HEIRS
o Now A has died…who are her heirs?
 C predeceases but is survived by her husband
• Succession goes vertically, not horizontally so son-in-laws and daughter-in-laws
are not considered heirs
 B, D, F, G
• UPC 2-101: Intestate Estate:
o A) Any part of decedent’s estate not disposed of by will passes by intestate succession to
decedent’s heirs pursuant to this Code.
o B) Decedent’s will may expressly exclude/limit the right of an individual/class to receive
decedent’s property passing by intestate succession.
 If the excluded member/class survives decedent, the excluded member’s share passes
as if that excluded member had disclaimed his intestate share.
• UPC 2-105: No Taker: Intestate estate “escheats” (goes) to the state if there is no taker under the
 UPC 2-102 and 2-103 (below).

UPC 2-102: SHARE OF SURVIVING SPOUSE

• (1) Spouse gets 100% of intestate estate if no descendants or parents survive decedent OR all
descendants are also descendants of surviving spouse and there are no other descendants of
surviving spouse who survive decedent.
• (2) Spouse gets first $300k plus 3/4 of the rest if no descendant survives but a parent survives.
• (3) Spouse gets first $225k plus 1/2 of the rest if all surviving descendants are also descendants of
surviving spouse and surviving spouse has one or more surviving descendants who are NOT
descendants of decedent (i.e. decedent has no kids/grandkids from another marriage but wife
does).
• (4) Spouse gets first $150k plus 1/2 of the rest if one or more of decedent’s surviving descendants
are not descendants of surviving spouse (i.e. decedent has 1+ kids/grandkids from another
marriage).
Notes
• Intent of average decedent is to leave to spouse, NOT siblings.
• How much does spouse take if deceased spouse dies and surviving spouse has 1 son from their
marriage and 1 son from a previous marriage?
o First $225k and half of balance under UPC 2-102(3).
 This is to make sure that there is more for deceased spouse’s child from outside
marriage.
• SS=DS and
o DS is not survived by a parent or descendant
 SS’s share: 100%
• SS=DS and
o All of DS’s descendants are also descendants of SS; SS has no descendants; even if DS’s
parents are living
 SS’s share: 100%
• There is a presumption that the spouse will manage the money in the best interests of the children

SAME-SEX MARRIAGE/DOMESTIC PARTNERS AND INTESTATE SUCCESSION

• States leaning toward intestacy rights in favor of DPs but usually must register as such w/ state.
• “Committed Partner” rights (regardless of DP registry) were proposed as a UPC revision but were
neither adopted nor denounced.
• Defense of Marriage Act: no state shall be required under the Full Faith and Credit Clause to give
effect to a same-sex marriage contracted in another state
o Marriage means only a legal union between one man and one woman
o Deprives same-sex married couples of Social Security tax and welfare benefits

SHARES OF HEIRS OTHER THAN SURVIVING SPOUSE

UPC 2-103:
• A) Rest of estate after spouse provisions passes in the following order.
o 1) to the decedent’s descendants by representation.
o 2) if no surviving descendant, to decedent’s parents equally if both alive, or all to single living
parent.
o 3) if no surviving descendant or parent, to descendants of decedent’s parents (siblings) or either
 of them by representation.
o 4) if no surviving descendant, parent, or descendant of parent (siblings), but decedent is
survived on BOTH the maternal and paternal sides by 1 or more grandparents OR descendants
of grandparents:
 a) 1/2 to decedents paternal grandparents equally if both survive, to the 1 surviving
paternal grandparent if only 1 survives, or to the descendants of the decedent’s paternal
grandparents or either of them if both are deceased, the descendants taking by
representation, and
 b) 1/2 to maternal side in the same way as directly above (UPC 2-103a4a).
o 5) if no surviving descendant, parent, or descendant of parent (siblings) but decedent is
survived by 1 or more grandparents or descendants of grandparents on ONLY 1 SIDE, to
decedent’s relatives on the side w/ 1 or more surviving members in the manner described in
UPC 2-103(4).
• B) If no taker under subsection (a) but decedent has:
o 1) 1 deceased spouse who has 1 or more descendants who survive decedent, the estate or partial
estate passes to that spouse’s descendants (step-children) by representation, OR
o 2) more than 1 deceased spouse who has 1 or more descendants (step-children) who survive
decedent, an equal share of estate or partial estate passes to each set of descendants by
representation.

SHARES OF DESCENDANTS (PAGE 87)

• In all jurisdictions, after spouse’s share (if any) is set aside, children and descendants of deceased
children take remainder.
• If one of several children of decedent dies leaving descendants, the deceased child’s descendants
shall represent the deceased child and descendants shall divide the deceased child’s share amongst
themselves.
o Spouse of deceased child (son/daughter-in-law) takes NOTHING in all jurisdictions.
o Decedent’s grandchildren take nothing if their parent got a share.
• 3 Systems for Shares of Descendants: example for the following systems = A dies intestate w/ no
spouse. A had 2 children (B and C) who both predeceased him. B had 1 child (D), and C had 2
children (E and F), so the only living descendants are D, E, and F (the decedent’s grandchildren).
o Draw in a chart for this example below: p. 87
o Son-in-laws and daughter-in-laws are excluded as intestate successors in virtually all states

• A has two children and three grandchildren; children predecease A and when A dies, how should
the estate be divided between the grandchildren?
o English Per Stirpes:
 1/3 of states follow English/Strict Per Stirpes (“by the stocks”).
 Treats each line of descendants equally.

Procedure: Property is divided into as many shares as there are living children of

designated person who have AND deceased children who have descendants living.
• Children of each deceased descendant represent their deceased parent at the first
generation below designated person and split their deceased parent’s share
equally.
 Above Example = A’s property is divided into 2 shares at the level of A’s children, D
takes B’s 50% by representation, and E and F split C’s 50% by representation (each
receiving a ¼).
 EXAM: no matter how many generations get thrown at you, divide at the first
generation below the decedent and drop it down.
o Modern Per Stirpes:
 1/2 of states follow Modern Per Stirpes (aka Per Capita with Representation).
 Treats equally each line beginning at the closest living generation.
• Any deceased descendant on that level is represented by her descendants using
English Per Stirpes.
 Procedure: First look to see if any children survived decedent.
• If YES, follow English Per Stirpes above.
• If NO, then estate is divided equally (per capita) at first generation in which
there are LIVING takers (usually generation of decedent’s grandchildren)
setting aside a share for each branch where there is a descendant.
• LOOK AT THE LINE WHERE THERE IS SOMEONE ALIVE
o If D, E, and F’s two children are alive…
 D and E gets 1/3 and children of F each get 1/6 (split F’s 1/3
share)
 Above Example = D, E, and F divides A’s estate equally for 33% each (1/3 each).
• If F predeceased A, leaving descendants, F’s descendants would represent F and
split his 33%.
 Basically ignore all generations where no one is alive and drop down until one person is
alive then make equal shares for branches with descendants.
o UPC: Per Capita at Each Generation:
 ~12 states follow this newer, more complicated UPC § 2-106(b) system.
 Treats equally each taker at each generation w/ the other takers at that generation.
 Procedure: Initial division is made at level where one or more descendants are alive
(like modern per stirpes), but 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.
• New Example Required: decedent A has 3 children (B, C, and D), B and C
predeceased A but D survives, B had 1 child (E) and C had 2 children (F and G).
o Draw in example below: p. 89
 • Answer: When A dies intestate, D gets 33% and the remaining 66% is then
divided equally among dead children’s’ descendants so E, F, and G each get 2/9
of A’s intestate estate.
o There is a recalculation after the 1st generational award.

NEGATIVE DISINHERITANCE
• UPC 2-101(b) authorizes a negative will to disinherit a descendant (prevent one from taking an
intestate share).
o Permitted by UPC but rarely justified in use
o Disinherited heir is treated as if he disclaimed his intestate share (as if he predeceased the
intestate).
o Old rule was that the only way to disinherit was to devise entire estate to other persons.
 This was b/c an heir had a natural right to inherit.

SHARES OF ANCESTORS AND COLLATERALS (p.93 very important)

• Ancestors and collaterals do NOT take from intestate decedent who is survived by a descendant.
• In 1/2 of states and UPC, if there is no descendant, then after deducting spouses share the rest is
distributed to decedent’s parents (as explained above in UPC 2-103).
• If decedent has no spouse or parent, heir will be more remote ancestors or collateral kindred.
o Collateral Kindred/Collateral Relevant: all persons related by blood but are neither
descendants nor ancestors (brothers, sisters, aunts, uncles, cousins).
o First-line Collaterals: descendants of decedent’s parents other than the decedent and
decedent’s descendants (ex. brothers and sisters).
o Second-line Collaterals: descendants of decedents’ grandparents other than decedent’s parents
and their descendants (ex. aunts, uncles, first cousins).
• PROCEDURE: ALL Jurisdictions: If decedent is NOT survived by spouse, descendant, or
parent, intestate property passes to brothers/sisters and their descendants.
o Descendants of any deceased brothers/sisters (nephews/nieces) take by representation under the
applicable share system.
• States differ if there are no first-line collaterals; 2 basic schemes for second-line collaterals:
o 1) Parentelic System: (UPC 2-103(5) above and p.74) goes according to the lines closest to the
right of decedent on the table of consanguinity: intestate estate passes 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 (parentela) descended from
an ancestor until an heir is found.
 UPC only goes to 2nd parentelic line (grandparents and their descendants), then looks for
step-children, then escheats to state.
• This avoids laughing heirs.
o 2) Degree-of-Relationship System: intestate estate passes to the closest of kin, counting
degrees of kinship (all 2’s take equally, all 3’s take equally, etc).
 To ascertain degree of relationship of decedent to claimant, count the steps (1 for each
generation) up from decedent to nearest common ancestor of decedent and claimant,
 then you count the steps down to the claimant from the common ancestor.
 Total number of steps = degree of relationship.
• Laughing heirs: people so distantly related to decedent that they suffer no sense of bereavement
and are laughing all the way to the bank.
o UPC 2-103 does not permit inheritance by intestate succession beyond grandparents and their
descendants.
 Eliminates inheritance by more remote relatives traced through great-grandparents, etc.
• Escheat: If intestate leaves no survivors entitled to take, intestate’s property escheats to the state.
• Step children
o UPC and some states
o Stepchildren take as a last resort if there are no surviving grandparents or descendants of
grandparents or more closely related kin
• Half-bloods:
o MAJORITY RULE: half-blood is treated the same as a relative of whole-blood (UPC 2-107).
o Few states: half-blood given a half share (Florida) (filthy mudblood!).
o Few other states: half-blood takes only when there’s no whole-blood relatives of same degree.
o UPC eliminates distinction between half-blood, full-blood, cold-blood

ADOPTED CHILDREN

Hall v. Vallandingham (Inheritance is NOT A NATURAL RIGHT, it is positive law; An adopted

child shall be treated as a natural child of his adopted parents w/ rights to inherit from natural parents
being cut off to avoid dual inheritance; B/c an adopted child has no right to inherit from the estate of
intestate natural parent, it follows that the same child may not inherit through the natural parent by
representation; Basically, if a child is adopted, he cannot inherit from natural parents OR aunts/uncles)
• Earl V. died, survived by his wife Elizabeth and their 4 children.
• 2 years later, Jim Kilgore married Elizabeth and adopted the 4 children.
• 25 years after the adoption, Earl’s brother William V. died childless, unmarried, and intestate w/
his sole heirs being his surviving brother/sisters and their children.
• Earl V.’s 4 natural children noted exceptions, alleging that they were entitled to the distributive
share of their natural uncle’s estate that their natural father would have received had he survived
William.
• Orphan’s Court transmitted the issue to Circuit Court, which determined that Earl V.’s 4 natural
children, b/c of their adoption by their adopted father, were not entitled to inherit from William V.
Issue
• Did trial court err in denying the children the right to inherit through their natural uncle when these
children were adopted by their stepfather after their natural father’s death and natural mother’s
remmariage? NO.
Holding
• MD legislature in 1963 declared that upon adoption, the adopted child shall lose all right of
inheritance from its natural parents and from their natural collateral or lineal relatives.
• Adopted child has all rights/privileges of a natural child regarding adoptive parents, but adoption
doesn’t give children the right to dual inheritance which would put them higher than natural child.
• Once a child is adopted, rights of both natural parents and relatives are terminated.
Notes
• Court/legislature did not consider that the kids had no say in whether they wanted to be adopted.
• REST 3rd PROP § 2.5: Parent and Child Relationship.
o Under Rest. (1)(C) they would have inherited from and through their father had the court
interpreted the statute this way because if they are adopted by a step-parent then they are still
considered a child of the other genetic parent
• Case would be decided differently under UPC’s 2008 revision.
o UPC: looks at if there is a parent-child relationship for intestate succession by, from, and
through the biological parent (2-116, 2-118(a), & 2-119(a)).
• The right to inherit is NOT A NATURAL RIGHT; Only the legislature can give the right.
• Court did not consider that the law CHANGED after the adoption of the children regarding what
they could inherit from their father’s bloodline.
o Urice hates that court said “the legislature giveth, the legislature taketh away.”
• Adoption CANNOT be undone

Doris Duke (Adult Adoption)

• Doris adopted an adult Hare Krishna (Chandi)
• Doris had no genetic children
• Subsequent to the adoption Doris had a falling out with Chandi and tried to exclude her from her
father’s trust in her will
• Chandi sued the trustees of the Duke Trust; trial court ruled against her on the ground that adult
adoptee was not considered a child of the adopting parent when the trust is created by another
Notes:
• Why adopt an adult child?
o Limits contesting of a will…
o Who has standing to contest a will?
 Those who are mentioned in the will and those who would take in the intestacy
statute (Descent and distribution statute) if the estate would not have gone into
probate
 Can be useful for people who have no children or who are in a same sex relationship
to insure certain inheritance rights
 They are also dangerous because they cannot be undone
• She disinherits Chandi: is this allowable? YES!

Minary v. Citizens Fidelity Bank & Trust Co. (Adoption of an adult for purpose of bringing that
person under the provisions of a preexisting testementary instrument, when he clearly was not intended
to be so covered, should NOT be permitted)
• T died leaving a will devising her residuary estate in trust to pay the income to her husband and 3
sons (James, Thomas, Alfred) for their lives, w/ corpus at their deaths to “my then surviving heirs,
according to laws of descent and distribution then in force in KY.”
• Husband died, James died w/o issue, Thomas died w/ 2 children (Thomas, Jr., Amelia, Jr.), Alfred
married Myra (P) and then adopted her as his child 25 years later.
• Trust terminated on Alfred’s death (last to die), Myra claims to be T’s heir by adoption and wants
corpus.
Issue
• Is an adult, who was adopted for sole purpose of making her an heir, entitled to assets as heir? NO.
Holding
• Myra loses!; Although statutes allow adults to be adopted for purposes of becoming an heir exactly
as a natural child and the court has allowed it, such practice is an “act of subterfuge that thwarts the
 intent of the testator and cheats the rightful heirs,” and should not be permitted.”
• An adopted child may inherit from adopted parent, however, whether an adopted child may inherit
from another through an adopted parent causes more difficulty.
• Strict construction should NOT be given to a statute when it thwarts the intent of the testator.
Notes
• Court essentially declares a clear rule that there are exceptions to clear rules.
• T here could have allowed the last of the surviving sons to determine who would be the beneficiary
of the corpus (as a power of appointment).
• T also could have added that no surviving spouse of a life tenant can take the corpus as well.

Equitable Adoption/Virtual Adoption/Adoption by Estoppel

O’Neal v. Wilkes (A relationship less than legal guardian will not give one the authority to enter into
an adoption (or virtual adoption) contract under a literal reading of GA law)
• Hattie O’Neal (P) was born out of wedlock (father never cared for her), raised by her mother until
she died 8 years later, then P’s aunt surrended her when she was 12 to Louise who wanted a
daughter but later realized she could not care for her so Louise gave her to P’s bio father’s sister
Estelle Page for a short time until P was picked up by Cook and his wife who wanted a daughter.
• Cook never statutorily adopted P and P never took Cook’s last name but Cook cared for P until P
married and Cook called P’s children his grandchildren.
• Cook died intestate,Wilkes (D) was appointed admin and did not recognize P’s rights to estate.
• P filed a petition in equity asking court to declare virtual adoption.
• Jury found for P but court entered JNOV for D b/c paternal aunt who allegedly entered into
adoption K w/ Cook had no legal authority to do so.
Issue
• Was there a valid K to adopt P, such that she is entitled to inherit Cook’s estate? NO.
Holding
• No virtual adoption b/c Estelle Page never had legal right to create such a situation.
• 1st essential of an adoption K is that it be made by persons competent to K for child’s disposition.
• Although P’s bio father’s consent was not required for an adoption K due to his lack of relationship
w/ her, P’s paternal aunt ( Estelle Page), as a mere legal custodian, did not have the right to consent
to P’s adoption by Cook.
• After P’s bio mother died, no guardianship or legal custodian petition was ever filed by relatives so
Page cared for P as familial obligation, not legal obligation which would allow consent to adoption.
• SEARS DISSENT: Should be a virtual adoption as this court held in Crawford v. Wilson.
o Equity should enforce K b/c of the child’s full performance over a lifetime of the defective K.
o Estelle Page was the only person who could possibly be in any position to consent to adoption.
o The majority uses a law that was intended to help an adopted child to hurt an adopted child.
Notes
• Virtual Adoption: When equity will enforce an adoption K by decreeing that a child is entitled to
the fruits of a legal adoption even though a literal enforcement of the adoption K is precluded.
• If court granted a virtual adoption, she would inherit as if she were a natural child, but b/c they did
not, she inherited nothing.

POSTHUMOUS CHILDREN
• Child conceived before, but born after, father’s death.
• RULE: Child is treated as “in being” from time of conception, rather than time of birth if it is to the
child’s advantage to do so and the child is born alive.
• Rebuttable presumption: normal gestation period is 280 days.
o If child claims conception was more than 280 days, burden of proof is on the child.
• Uniform Parenting Act §204
o Establishes rebuttable presumption that child born to woman w/i 300 days after death of H is
child of H.
• Important: Posthumous children are always treated as nonmarital children when they are
conceived after the death of the father!

NONMARITAL CHILDREN
• Children born out of wedlock.
• Two things terminate marriage: death and divorce
o Which is why children born after the death of their parent are considered nonmarital, even if it
is through AI
• Modern Rule: all jurisdictions allow child to inherit from mother.
Trimble v. Gordon (USSC held an IL statute denying nonmarital child inheritance rights from the
father unconstitutional on EP grounds; Does not pass intermediate scrutiny; Not fair to try to affect
parents behavior (encouragement of paternity establishment) by punishing the child)
• Most states permit paternity to be established by evidence of the subsequent marriage of the
parents, acknowledgement by the father, adjudication during life of father, or clear and convincing
proof after his death.
• Uniform Parenting Act (UPA)
o If parents don’t marry, parent-child relationship is presumed to exist between father/child if:
 While child is less than 2, father lives in same household as child and openly holds
child out as natural child, OR
 The father acknowledges his paternity in writing that is filed with court or
administrative agency.
• Paternity Testing
o DNA has made it fairer and more accurate.
o Trend is toward allowing it, even if exhumation is required.

REPRODUCTIVE TECHNOLOGY
• Hecht v. Superior Court: Kane devised to his girlfriend 15 vials of his sperm that were on deposit
at a sperm bank; children contested and Court dismissed their claim
• Posthumously conceived child (a child en ventre sa frigidaire) differs from the posthumous child in
that the former is both born and conceived after the death of one or both of the child’s genetic
parents

Woodward v. Commissioner of Social Security (The limited circumstances in which posthumously

conceived children may enjoy the inheritance rights of intestacy exist where the surviving parent or the
child’s other legal representative demonstrates a genetic relationship between the child and the
decedent; must then establish both that the decedent affirmatively consented to posthumous conception
and to the support of any resulting child)
Facts:
• Husband and wife were informed that husband had leukemia after 3 ½ years of marriage
• Since he may become sterile, the husband had semen withdrawn and preserved in a sperm bank
• Husband died and wife was appointed administratix of his estate
• Two years later the wife gave birth to twin girls, which were conceived through artificial
insemination with the husband’s sperm
• Wife applied for Social Security survivor benefits for herself and her children and was rejected b/c
she hadn’t established that the twins were her late husband’s
• Wife argues that by virtue of their genetic connection with the decedent, posthumously conceived
children must always be permitted to enjoy the inheritance rights
• Government argues that because posthumously conceived children are not in being as of the date of
the parent’s death, they are always barred from enjoying such inheritance rights
Issue:
• Should decedent’s children, who are conceived 2 years after their father died through AI, enjoy the
inheritance rights of natural children under Massachusetts’ law of intestate succession? In certain
limited circumstances.
Holding:
• Court looks at policy
o Have conflicting policies and have to bring them into balance
• Intestacy statute implicates three State interests:
1) The best interests of children
a. The Legislature has not acted to narrow the broad statutory class of posthumous
children to restrict posthumously conceived children from taking in intestacy
b. Legislature has supported the assistive reproductive technologies that are the only
means by which these children can come into being
2) The State’s interest in the timely and orderly administration of estates
a. Inheritance rights of posthumously conceived children will reduce the intestate
share available to children born prior to the decedent’s death
b. Non-marital child must obtain judicial determination of paternity
c. One year SOL is not clear because it imposes heavy burden on surviving spouse to
have a child while grieving and that attempts at conception occur quickly
d. Time is not really at issue in this case since the SS benefits does not require
timeliness
3) The reproductive rights of the genetic parent
a. Individuals have protected right to control the use of their gametes
b. Prospective donor parent must clearly and unequivocally consent not only to
posthumous reproduction but also to the support of any resulting child (burden on
surviving spouse to prove this)
c. The mere fact that sperm was preserved does not satisfy the intent requirement of
posthumously reproducing
• The limited circumstances in which posthumously conceived children may enjoy the inheritance
rights of intestacy exist where the surviving parent or the child’s other legal representative
demonstrates a genetic relationship between the child and the decedent
• The survivor or representative must then establish both that the decedent affirmatively consented to
posthumous conception and to the support of any resulting child
• Time limitations may preclude commencing a claim for succession rights on behalf of a
posthumously conceived child
Notes:
• Case of first impression
• UPC §2-120: a posthumously conceived child inherits from the deceased parent if (1) during the
 life the parent consented to posthumous conception in a signed writing or consent is otherwise
proved by clear and convincing evidence, and (2) the child is in utero not later than 36 months or is
born not later than 45 months after the parent’s death
• Rest. 3rd of Prop. §2.5: to inherit from the decedent, a child produced from genetic material of the
decedent by assisted reproductive technology must be born within a reasonable time after the
decedent’s death in circumstances indicating that the decedent would have approved of the child’s
right to inherit. A clear case would be that of a child produced by artificial insemination of the
decedent’s widow with his frozen sperm

ADVANCEMENT (still in intestacy section)

• Def: a gift of money or property made by a person while alive to his or her child or other legally
recognized heir, the value of which the person intends to be deducted from the child’s or heir's
eventual share in the estate after the giver's death.
• Old Common Law Rule: any lifetime gift by decedent constituted an advancement and heir had
burden of proving decedent’s intent was otherwise.
o If advancement goes to child who then predeceases decedent, that amount is deducted from
the’s predeceasing child’s heirs if other children of decedent survive.
o Advancements are brought into hotchpot:
 Ex) Decedent had no spouse and 3 kids, estate is worth $50k, daughter got a $10k
advancement.
• The $10k advancement is added to the $50k to make a $60k estate.
• Then divide by 3 and include the advancement in daughter’s share so daughter
gets $10k and other 2 get $20k.
 Ex) If the advancement in the previous example was a $40k car to daughter, then
daughter would stay out of hotchpot and would not have to give a portion back; the
$50k estate would be distributed solely to the other 2 children.
• This is changed by UPC 2-109c.
• MODERN RULE
o Problems w/ proving donor intent and retracing gifts (administrative issues) caused many states
and UPC to reverse the CL rule.
o UPC 2-109:
 a) A gift during decedent’s life is only considered an advancement if a writing by the
decedent or the heir indicates the intent of “advancement” OR that the gift should be
taken into account in distribution of estate.
 b) Advancement property is valued as of time heir came into the property or the time of
the decedent’s death: whichever comes first.
 c) If heir receiving property predeceases decedent, the property is NOT taken into
account in distributing estate unless decedent’s writing holds otherwise.
o Loans:
 Is a loan an advancement?
• Probably turns on whether there was a loan document, what it said, etc.

GUARDIANSHIP AND CONSERVATORSHIP OF MINORS (SEE CHART)

• 2 issues upon intestacy when natural parents die leaving minor children:
• 1) Guardian of the Person:
o Guardian is responsible for child’s custody and care.
 o If one parent is still alive, he/she becomes natural guardian.
o If both parents die and will does not designate a guardian, court will appoint one from among
the nearest relatives.
o T w/ minor child should designate a guardian and an alternate in a will.
o Guardianship lasts until majority, adoption, or death.
o Guardianship is governed by UPC 5-201.
• 2) Property Management Options:
o Another reason for parent w/ a minor to write a will is to deal w/ management of property.
o Guardian has no authority to deal w/ child’s property.
o If no will, court will appoint a guardian of property or conservator.
o 4 options for property management:
 Guardianship of the Property
• Burdensome, time-consuming, expensive, and should be avoided (like probate).
• Guardian preserves the minor’s property and delivers it to him at age 18.
• Guardian does NOT have title to property and cannot change any investment by
sale, lease, or mortgage w/o court approval.
• Usually, only the income of the property can be used to support the minor.
 Conservatorship
• A more “trust-like” arrangement where conservator has “title as trustee” and
investment powers like a trustee.
o Conservator therefore has fiduciary duties.
• Conservator has far more flexible powers than guardian of property.
• Court appointment and supervision still required.
• Usually only 1 trip to courthouse per year for accounting is necessary.
o In most cases, only 2 trips to court: when he is appointed and when he is
finished.
• Terminates when child reaches majority or dies.
 Custodianship
• Under UTMA (adopted in some form in every state) property may be transferred
to a person (including the donor) as custodian for benefit of the minor.
• Devise/gift is made “to X as custodian for (minor’s name).”
• Custodian has right to manage and reinvest property but has all fiduciary duties.
• NOT under court supervision for any accounting, unlike guardian and
conservator, but interested party may request accounting.
 Trusts (BEST)
• Most flexible of all; donor tailors everything to his desire.
• Can postpone when minor receives anything until any age, unlike guardianship
(18) and conservatorship (18 or 21).
• Many wills have a minor trust provision saying “if my wife and I die before child
reaches majority, a trust shall be created and held by a trustee until the minor
reaches majority…”
HOMICIDE

In re Estate of Mahoney (In VT, although legal title to decedent’s property passes to slayer of
decedent, equity holds the slayer to be a constructive trustee for the heirs or next of kin of decedent;
Doctrine of Constructive Trustee invoked to prevent slayer from profiting from his crime, but not as an
added penalty)
• W killed her H and was convicted of manslaughter.
• H left no issue and was survived by his W, father, and mother.
• H died intestate and his father was appointed administrator of his $3,900 estate.
• Probate Court entered judgment for residue of H’s estate to his parents and W appealed.
• At this time, VT had no statute addressing the inheritance rights of a slayer of the decedent.
Issue
• May a widow convicted of manslaughter for killing husband inherit from his estate? YES, but...
Holding
• W inherits only legal title of equitable constructive trust.
• In VT, anything less than $8k goes completely to surviving spouse and no law against slayer of
spouse inheriting.
• States that have no law against killers taking from whom they kill by descent do 1 of 3 things:
o 1) Can inherit regardless of killing.
o 2) Legal title will not pass to slayer b/c of equitable principle that one should not profit from
their own fraud or crime.
o 3) Legal title passes to slayer but equity holds him to be a constructive trustee for the heirs or
next of kin of descendant.
• Court follows 3rd rule: parents get everything but as beneficiaries of constructive trust.
• Doctrine of Constructive Trust comes in b/c slayer should not be permitted to improve her position
by killing, but should not be compelled to surrender property to which she would have been
entitled if there had been no killing (stupid reasoning).
• Probate court did not have authority to create the constructive trust but the court of chancery did.
o All a probate court can do is say who takes, but it is up to a court of general jurisdiction to
determine what happens to the estate.
Notes
• Constructive Trust: NOT a trust: an equitable remedy by operation of law or by construction of
the court which, when 1 party has been wrongfully deprived of some benefit, a court may impose
upon the present holder, which requires him to hold the property for the benefit of the other party.
o Title passes but that taker, based on equitable principles, would create unjust enrichment so
that person will only take title in order to pass that title to heirs
• Why does court here go through these motions of passing legal title to slayer first instead of just
passing it to whom the constructive trust beneficiaries are?
o Court says to give her what she is owed but do not let her benefit from it.
 Urice thinks this is terribly stupid.
• Difference b/t murder and manslaughter was big here.

DISCLAIMER
• Def: when heir or devisee declines to take property.
• Allows for post-mortem estate planning.
• Traditional Common Law: cannot disclaim, can only renounce (refuse to keep inheritance so that
legal title goes from decedent to refusing heir to next intestate successor).
• MODERN LAW:
o Most states enacted legislation that heirs AND beneficiaries may disclaim intestate share OR
devise w/o ever having title to the property and w/o needing to transfer title away (UPC 2-
1105&1106).
  Disclaimant is treated as if he died before decedent died or before distribution.
 “Renounce” and “disclaim” are now interchangeable terms.
 For beneficiaries, acceptance of gift is a requirement so disclaimer is clearly an option.
o Disclaimer relates back (takes effect) for all purposes to the date of decedent’s death.
 This is important b/c a valid disclaimer means heir never owned it for creditor purposes.
o Most state statutes require disclaimer w/i 9 months but UPC and 1/3 of states do not.
o Today, the terms “renounce” and “disclaim” are interchangeable.
o Most commonly done for 2 purposes:
 1) Reduce Taxes:
• O  A, A disclaims  property goes to A’s daughter at lower tax rate.
 2) To Keep Property from Creditors:
• O  A, A disclaims  creditors cannot reach O’s estate which goes to A’s
daughter.
• Bankruptcy and Disclaimer:
o If debtor disclaims before bankruptcy filed, courts respect the relation
back (to date of decedent’s death) and allow disclaimer.
o If debtor disclaims after bankruptcy filed, court usually holds disclaimer
ineffective under federal bankruptcy law.
 Minority: insolvent debtor who hasn’t yet filed for bankruptcy
cannot disclaim.
• Drye v. U.S.:
o Drye’s mother died intestate leaving him all of her $233k estate but Drye
had a $325k tax bill. IRS filed tax liens against Drye’s “property and
rights to property” under state law. Drye disclaimed mother’s estate; it
passed to his daughter. Daughter used estate to fund a spendthrift trust
(protected from creditors of beneficiaries) naming herself and her parents
as beneficiaries.
o Holding: USSC: Ginsburg did not allow the disclaimer to defeat the tax
liens b/c Drye exercised dominion over the property and had the power
to channel the estate’s assets such that it constitutes his “property or
rights to property.”
o Crafty Disclaimer Example:
 O has 2 children (A and B), A has 4 children and B dies w/ 1 child (C). When O dies
w/o a spouse, A would get 1/2 and C would get 1/2 under any type of distribution.
 BUT, A can disclaim and his children will get a total of 4/5 (1/5 each) instead of A just
getting 1/2.

SIMULTANEOUS DEATH
• Main question: When person dies simultaneously w/ heir, does the heir succeed to the property?
o Cases usually involve intestacy and spouses.
• Uniform Simultaneous Death Act (USDA):
o Holds that if there is “no sufficient evidence” of the order of deaths, the beneficiary is
deemed to have predeceased the donor; thus neither inherits from the other.
 120 Hour Rule: Revision-UPC 2-104 & 2-2-702: an heir who fails to survive by 120
hours (5 days) by clear and convincing evidence is deemed to have predeceased the
decedent.
 • Created to define what “sufficient evidence” of order of deaths is under USDA.
• Also, it is a doctrine of judicial efficiency.
• Also, helps to carry out donor intent.
o Joint Tenancy/Community Property/T by the E: if A and B have any of these property
interests and die simultaneously  1/2 is distributed as if A survived and 1/2 as if B
survived.

Janus v. Tarasewicz (Survivorship is a fact which must be proven by a preponderance of the evidence
by the party whose claim depends on survivorship; The diagnosis of death must be made in accordance
w/ usual and customary standards of medical practice)
• Stanley and Theresa Janus both took deadly cyanide-laced tylenol, Stanley’s date of death was
September 29th and Theresa’s was October 1st.
• Stanley had life insurance policy which went to his wife if he predeceased her, or to his mother if
she predeceased him.
• Life insurance company concluded that Theresa survived Stanley and paid proceeds to Theresa’s
father, the administrator of her estate.
• Stanley’s mother (P), brought a declaratory judgment action against insurance company and the
administrators of Stanley’s and Theresa’s estates, claiming the proceeds of the life insurance policy
as the contingent beneficiary of the policy.
• Lower court held that Theresa survived Stanley but wouldn’t say how much longer she survived.
• Stanley’s mother and administrator of Stanley’s estate appeal, arguing there is not sufficient
evidence to prove that both victims did not suffer brain death prior to September 29th.
Issue
• Was there sufficient evidence to establish that Theresa survived her husband? YES.
Holding
• Survivorship is a fact which must be proven by a preponderance of the evidence by the party
whose claim depends on survivorship.
o Lay witness testimony of positive signs of life in one body and the absense in another
suffices.
o For medical professional testimony, the diagnosis of death must be made in accordance w/
usual and customary standards of medical practice.
• Lower court’s finding of sufficient evidence of survivorship was not against the manifest weight of
the evidence.
• Usual and customary standards were used in the diagnoses of the 2 deaths.
Notes
• NOW LOOK TO USDA AND UPC.

WILLS
• Will:
o Valid will has 2 requirements.
 1) Decedent’s mental state.
• 1) Decedent’s testamentary intent
• 2) Testamentary capacity
o Made up of 2 things:
  1) Age
• Must be 18.
 2) Mental Capacity at the time the will is executed
• Freedom of disposition
 2) Will formalities.
• Will is a written instrument in which a testator states the disposition of his her property at the time
of death, that person may also and usually does appoint a personal representative and guardians if
there are minors involved
• When is a will effective?
o A will is ambulatory and is not effective until death

WILLS: Capacity and Contests

• Mental Capacity Requirements (REST 3rd Property)§8.1b:
o 18 years of age.
o Capable of knowing and understanding in a general way:
 1) The nature and extent of his property.
 2) The natural objects of his bounty (children/descendants).
 3) The disposition that he is making of that property, and:
 4) Capable of relating these elements to one another and forming an orderly desire
regarding the disposition of the property.
o Test is capability; NOT actual knowledge.
 Testator does not have to be of average intelligence.
o Lucid Interval: a time where one w/ dementia or another type of incapacity can make a valid
will due to a moment of clarity.
o Testamentary capacity requires reason, but it does not have to be reasonable.
o Need mental capacity to revoke a will as well as to make a will.
• Evidentiary Burden:
o Majority Rule: general presumption that a will is valid.
 Once proponent adduces prima facie evidence of due execution, party contesting the
will on lack of capacity grounds has the burden of persuasion by preponderance of
evidence that there was no capacity (REST 3rd of Property)(Wilson v. Lane)(Breeden v.
Stone).
• Exceptions: even if there is testamentary capacity, a will or portion of will can still be invalidated
from insane delusions, undue influence, fraud, tortious interference w/ an expectancy (all discussed
later).
• Professional Responsibility:
o A lawyer may not draft a will for a person the lawyer believes to be incompetent but lawyer
can rely on his own judgment of client’s capacity.
• Capacity Thresholds
o Lifetime gifts have the highest standard for capacity (b/c you care more about property while
you are alive), then wills, then marriage.
o Rest. 3rd Prop. § 8.1(c): to make an irrevocable lifetime gift, not only must one have the
capacity to make a will, but one must also be capable of understanding the effect that the gift
may have on the future financial security of the donor and of anyone who may be dependent
on the donor
CAPACITY
Burden of proof
• Majority: burden is on the opponent
 Strong presumption that testators have mental capacity (Wilson v. Lane)
 Minority: burden is on the proponent (Washburn)

Estate of Wright
• “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.”

In re Estate of Washburn (There is a rebuttable presumption of due execution (capacity to execute a

will), but once that presumption is rebutted, party seeking a determination of capacity must prove
capacity by preponderance of evidence)…minority rule
• Lower court held that testatrix (Washburn) lacked testamentary capacity to execute a will and
Barbara Remick (respondent), her caretaker/companion and principal beneficiary in her final will
appeals.
• Testatrix made 3 wills over the years:
o 1st will sent a few gifts to others then gave her home and estate residue to her sister or in
default thereof to her niece Catherine Colonna (petitioner).
o 2nd will sent some small gifts to several people, then $5k to her caretaker/companion
(respondent), and the rest to her niece (petitioner).
o 3rd will sent $5k to niece (petitioner) and the residue, home, and personal estate to caretaker
(respondent).
• Petitioner challenged the testamentary capacity during making of 3rd will at Probate hearing
presenting medical testimony of Alzheimer’s and court found there was no testamentary capacity
due to Alzheimer’s disease at the time of execution.
• Respondent asserts 2 arguments:
o 1) Evidence of lack of capacity was insufficient overcome rebuttable presumption of due
execution of the will (rebuttable presumption that everyone is sane).
o 2) No reasonable jury could find that testatrix lacked testamentary capacity.
Holding
• Affirmed; Testatrix did not have testamentary capacity to execute a will.
• Medical testimony that Alzheimer’s could have affected testatrix’s behavior and lay witness
testimony of forgetfulness was sufficient to rebut presumption of due execution (sanity/capacity).
• B/c the presumption of due execution was rebutted, respondent had to prove capacity by a
preponderance of evidence and she could not.
• Also considerable that the wills just weeks apart had vastly different provisions.
Notes
• Testatrix: female testator.

Wilson v. Lane (Very Low Burden for Capacity: The accumulation of a large amount of evidence
(from doctors, experts, friends, etc.) which might suggest incapacity does not necessarily dictate that T
was incapable of forming a rational desire as to the disposition of her property)
• Challenge to testamentary capacity, County Superior Court jury found that testatrix lacked
testamentary capacity, but court granted JNOV.
• Testator had sixteen blood-relative beneficiaries and her caretaker as her beneficiary
o Caretaker is also appointed personal representative/executor of the will
• Caveators challenged testatrix’s capacity by showing she was eccentric, aged, and peculiar.
• Caveators offered evidence of false calls to fire dept, strange fears, trouble dressing and bathing, a
guardianship petition filed for testatrix a few months after her will was executed, testimony of an
expert witness, and a letter written by testatrix’s physician.
Holding
• Affirmed; Testatrix had testamentary capacity.
• The law does not withhold the right to make a will from the aged, the feeble, the weak-minded, the
capricious, or the notionate if she has sufficient intellect to enable her to have a decided and
rational desire as to the deposition of her property.
• Eccentric habits and absurd beliefs do not establish testamentary incapacity.
• None of the above evidence was sufficient to show that testatrix was incapable of forming a
rational desire as to the disposition of her property.
• Drafting attorney had much confidence in testatrix’s competency as did friends of testatrix.
• Carley Dissent: Totality of the evidence supports jury finding of lack of capacity even if each
piece of evidence independently is insufficient to find lack of capacity.
Notes
• Simply b/c individual demonstrates severe eccentricities w/ a strange estate disposition, that does
not mean he lacks testamentary capacity.

INSANE DELUSION
• Def: a persistent false conception of reality not susceptible to correction by presenting T w/ rational
evidence to the contrary (as opposed to “mistake”).
• T may have sufficient capacity to execute a will but be suffering from an insane delusion which
can cause lack of testamentary capacity.
• Most cases involve a false belief about a member of T’s family.
• 2 Factors: (1) Whether insane delusion exists, and (2) Whether delusions caused the unnatural
disposition.
o (1) Insane Delusion
 Majority Rule: a delusion is insane even if there is some factual basis for the delusional
beliefs if a rational person could not have drawn the conclusion.
 Minority: if any factual basis for the belief (delusion) then not deemed insane.
o (2) Causation
 Will stands if insane delusion did not affect dispositions.
 Much of the litigation for insane delusions centers around CAUSATION.
 Majority Rule: even if insane delusion and unnatural disposition, no presumption of
causation and contestant has burden of proving causation that insane delusions
materially affected the disposition in the will.
 Minority Rule: presume causation if (1) insane delusion, and (2) unnatural disposition.

In re Strittmater (A will should not be admitted to probate if it is proved that the testator suffered
from insane delusions at the time of its execution)
• Strittmater lived a normal and content childhood w/ her parents until they died in 1928.
• Strittmater then spoke badly about her late parents, joined the National Women’s Party, became an
ardent feminist, engaged in peculiar conduct, such as smashing a clock, killing a pet kitten, and
using vile language; at other times, she acted quite normally and reasonably.
• One month before her death, Strittmater executed a will leaving everything to NWP (P).
• Her only surviving relatives, some cousins (D) whom she rarely saw, contested the will on the
ground that Strittmater has been insane when she executed the instrument.
• In the opinion of her doctor, Strittmater had suffered from paranoia and a split personality.
• The court Master, though acknowledging the decedent’s morbid aversion to men to a neurotic
extreme, held that the will should be admitted to probate.
Issue
• May the will of a party who was insane at the time of its execution be admitted to probate? NO.
Holding
• A will should not be admitted to probate if the testator was insane at the time of its execution.
• Testatrix apparently had an insane hatred of men.
• The paranoia was well advanced by the time she executed her will.
• It was evidently her mental illness, especially her insane delusions about men, caused her to leave
her estate to the National Women’s Party.
• Since Strittmater’s will was the product of her insanity, the order of admitting the instrument to
probate was properly set aside.
Notes
• Here, there was insane delusion and causation so the entire will was set aside.
• Testatrix’s beliefs are qualitative judgments rather than a facts, which might dictate that they are
not insane delusions.

Breeden v. Stone (In order for insane delusions to invalidate a will, the delusions must materially
affect the disposition in the will, and here they did not; The 2 tests for “sound mind,” the Cunningham
Test and the Insane Delusion Test, must BOTH be applied to determine if testator had a sound mind
capable of testamentary capacity)
• T was involved in a hit-and-run that killed other driver, then killed himself 2 days later.
• When police arrived at suicide scene, they found handwritten will stating everything he owns
should go to Sydney Stone.
• D offered handwritten document for probate as the holographic will of decedent.
• P (testator’s father, brother, and sister) alleged lack of testamentary capacity.
• Probate court admitted holographic will to probate in ’96 b/c P did not prove by preponderance of
evidence that testator was not of sound mind when he executed the latest will.
Holding
• Affirmed for proponent; The insane delusions in this case did not materially affect the
disposition in the will.
• Probate court correctly applied the 2 independent tests for testementary capacity to find that
testator was of sound mind when he executed the holographic will.
• 2 tests for what constitutes sound mind:
o 1) Cunningham Test: applies in cases of general lack of capacity due to a number of reasons
(senile, general insanity, physical infirmity, etc).
 Mental capacity to make a will requires 5 things:
• (1) That testator understands the nature of his act.
 • (2) The he knows the extent of his property.
• (3) The he understands the proposed testamentary disposition.
• (4) That he knows the natural objects of his bounty.
• (5) The will represents his wishes.
o 2) Insane Delusion Test: if an insane delution affects the contested disposition in the will.
 Most often used in cases of paranoia or monomania.
• These 2 tests are not mutually exclusive; both MUST be applied, as the Probate court did.
o For capacity, all Cunningham factors must be present and all insane delusions that materially
affect disposition must be absent.
o Can challenge capacity on either test.
• Testator was suffering from insane delusions but they did not materially affect the disposition in
the will, which makes the insane delusions irrelevant.
Notes
• Dead Man’s Statute:
o Minority Rule: testimony by an interested party of a decedent’s oral statement in support of a
claim against decedent’s estate is prohibited.
 Protects estate from false claims b/c decedent cannot refute the testimony.

UNDUE INFLUENCE
• Overcoming of the testator’s free will by a wrongdoer
o A wrongdoer’s actions have overcome a testator’s free will, meaning that the will does not
fully express accurately the intent of the individual but reflects the intent of the wrongdoer
• REST 3rd Property §8.3:
o a) Donative transfer invalid to extent it was procured by undue influence, duress, or fraud.
o b) 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 donor to make a donative
transfer that he would not have otherwise made.
• Essentially taking advantage of age, inexperience, dependence, or physical or mental weakness.
• Can be found by court/judge is 2 things:
o Wrongdoer overcomes free will of testator.
o Unnatural disposition.
• MAJORITY RULE: (REST 3rd Property 8.3) finding of UI requires Confidential Relationship
AND Suspicious Circumstances.
o Confidential Relationship:
 Def: reliant relationship w/ special trust and confidence w/ potential for abuse.
 1) Whether reliant relationship exists is a question of fact.
 2) Confidential Relationships PER SE = Principal/agent, doctor/patient, attorney/client.
• Can include fiduciary, friend, family, etc.
 3) Dominant relationship
o Suspicious Circumstances:
 Some jurisdictions require only a showing that influencer procured the will.
 Some jurisdictions require both (1) weakened intellect of abused and (2) bulk of estate
going to influencer both required (Estate of Lakatosh).
 Some jurisdictions draw from the non-exhaustive list of suspicious circumstances in
REST 3rd Property 8.3. (PG. 185).
• Evidentiary Burden:
o When proponent of will proves due execution (easy initial burden), contestant claiming UI
has burden of proof to show confidential relationship AND procurement or suspicious
circumstances.
 When presumption of UI is triggered, burden shifts back to proponent to rebut
presumption.
• Proponent can then rebut this presumption (in some jurisdictions) by presenting
clear and convincing evidence of good faith w/ grantor acting freely and
voluntarily (Jackson v. Shrader).
o Reason: person benefiting from confidential relationship can take
precautions to ensure proof of fair transactions and is in best position to
justify transactions.
• 4 General Indications of UI
o 1) Donor was susceptible to UI.
o 2) Wrongdoer had opportunity to exert UI.
o 3) Wrongdoer had a disposition to exert UI.
o 4) Result appeared to be effect of UI.
• Extrinsic Evidence: Extrinsic evidence is allowed to meet the burden of proving a will was
induced by UI, fraud, and duress.
• Circumstantial Evidence: in absence of direct evidence of UI, circumstantial evidence can raise
an inference of UI.
• Bequests to Attorneys and UI:
o Majority: presumption of UI when attorney-drafter receives a legacy unless he is family.
o CA: invalidates any donative transfer to a lawyer who drafts the instrument unless related by
blood or marriage to testator.
 Exception if an independent attorney attaches a “Certificate of Independent Review.”
• Mediation: preferred method of resolving will disputes.
o Eliminates higher litigation costs.
o Lessens unwanted publicity.
o Leaves more family members speaking to each other.
• California Care Custodian:
o CA invalidates any donative transfer to a “care custodian” of donor.
o Very high burden to validate such a transfer in CA, which requires an independent lawyer
who signs a statutory “certificate of independent review.”
o Transfers to care custodians in most jurisdiction often result in rebuttable presumption of UI.
• Strategies for Avoiding Will Contest:
o Client can write, in client’s handwriting, a letter to the lawyer setting forth disposition intent.
o Lawyer should arrange a video discussion w/ testator setting forth disposition intent.
o Hold a family meeting explaining disposition to family.
o Get a professional examination of testator’s capacity immediately before will execution.
o No-contest clause where allowed.
o Set up an inter vivos TRUST w/ an institutional trustee to create course of dealing evidence
of competence and absence of influence (although UI can still be asserted w/ a trust).
o Inter vivos gifts so testator can testify to intent.
o Donor could write a check to possible contestants the day they execute the will so when
contestant cashes it, proponent can vigorously cross-examine contestant as to why he cashed
 a check written by an incompetent donor.
o Try to ADOPT the devisee.
o Buy life insurance policy w/ devisee as beneficiary.
o Open joint account.
• REMEDIES:
o UI will can either be invalidates or a constructive trust can be imposed on the donee for
others’ benefit (also true for fraud and duress).

Estate of Lakatosh (When proponent of will proves due execution, contestant claiming UI has burden
of proof which can be shifted by showing clear and convincing evidence (1) that there was
confidential relationship, (2) that person enjoying the relationship got bulk of estate, and (3) that
decedent’s intellect was weakened)
• T was in her 70s when she was befriended by Roger, who assisted her, drove her around, and
became her only substantial contact.
• A few months after they met, Roger suggested that T give him power of attorney, T executed the
power of attorney and a new will leaving all but $1k of her $268k estate to Roger, who was not
present at the execution.
• Drafting attorney was Roger’s 2nd cousin, to whom Roger had referred T for unrelated work.
• Roger made several conversions of T’s money, T revoked power of attorney, and died 5 years later.
Holding
• Affirmed; T’s will is revoked due to UI.
• The burden of disproving UI shifted to Roger (see above rule in red), so Roger needed to
demonstrate absence of UI by clear and convincing evidence and Roger failed to meet this burden.
• When Roger became attorney-in-fact, a per se confidential relationship was born, plus Roger got
bulk of estate, and Rose suffered from weakened intellect.
• Constructive Trust imposed by court (equitable remedy [not a trust] to avoid unjust enrichment)
was imposed on Roger.

In re Kaufmann’s Will (Low Standard for Finding UI: A dominant/subservient relationship b/t
beneficiary/testator respectively, coupled w/ a confidential relationship and a bulk of the estate going
to person exerting influence, can create presumption of UI; Lack of marriage is huge in UI cases)
• T, multimillionaire, met financial advisor Walter, they became friends, roommates, and perhaps
lovers.
• T made Walter an office in their apartment and entrusted him will all financial assets.
• T died unexpectedly while still living w/ Walter.
• T executed a will w/ a NY law firm giving almost everything to Walter which contained a “coming
out of the closet at death” letter to his family.
• T also included a letter granting Walter exclusive power over his corporeal remains as if Walter
were his nearest relative.
• T’s brother Joel contested T’s will on UI grounds.
Holding
• Will invalid for UI as will was an end result of “insidious influence on a weak-willed,
inexperienced man.”
• UI came before 1951 and tainted all gifts to Walter.
• The “coming out” letter was cogent evidence of T’s complete domination by Walter.
• There was a long history of dominance and subservience b/t the couple mixed w/ the confidential
 relationship as Walter made all financial and business decisions.
Notes
• Lack of marriage played a huge role in this decision although court does not mention it.

Lipper v. Weslow (Very High Standard for Finding UI / Minority View: In order to invalidate will
based on UI, there must be proof of facts showing a plan of testamentary disposition by another as the
will of the testator; Minority: Confidential relationship and suspicious circumstances not enough for
UI)
• T executed a will at 81, in excellent physical and mental condition.
• Her lawyer and son Frank Lipper (D1) drafted the will leaving everything to her 2 children from
her 2nd marriage (Frank (D1) and Irene (D2)).
• The will expressly disinherited T’s 3 grandchildren from her 1st marriage (their father died).
• Grandchildren sued to set aside will for UI.
• Evidence at trial showed that drafter Frank bore malice against deceased half-brother, lived next
door to mother and had a key, and did not read the will he drafted to his mother before she signed.
• Will mentioned that T disinherited grandchildren b/c they were cold and distant for several years.
• Evidence at trial showed that grandchildren sent cards and flowers to decedent more than was let
on in the will, but disinterested witnesses testified that T expressed desire not to leave anything to
grandchildren before and after she executed the will.
• TC jury verdict found UI and the will was set aside.
Issue
• Will proof of confidential relationship, an opportunity, and a motive for UI be sufficient to
establish UI to invalidate a will? NO (minority holding).
Holding
• Reversed for Ds; Will valid.
• To invalidate a will for UI, must be proof of facts showing a plan of testamentary disposition of
another as the will of the T.
• In other words, test for UI = whether such control was exercised over T as to overcome her free
will and to substitute the will of another causing T to do what she would not have done.
• Grandchildren contestants must prove that D Frank substituted his mind and will for that of his
mother, which they could not do.
Notes
• This is a MINORITY holding b/c most states will hold there is a presumption of UI b/c of the
confidential relationship and suspicious circumstances.
o Suspicious circumstances being the disinheritance of grandchildren from a deceased child.
o Judge here seems to require direct evidence of UI rather than mere circumstantial evidence.
• No-Contest Clause (aka in terrorem): clause in a will providing that a beneficiary who contests
the will shall receive nothing or a token amount.
o Good b/c it avoids frivolous litigation among interested parties.
o Bad b/c it discourages findings of lack of capacity or undue influence.
o Majority Rule: (UPC and REST 3rd Property): enforce no-contest clause unless there is
probable cause for the contest.
• FL and IN do not enforce no-contest clauses at all.
• Public policy reason: you want people to come forward if they believe that they have
cause to challenge a will on the basis of undue influence

Delapp v. Pratt
• Court found UI exerted by T’s son who accompanied T to drafting attorney, had power-of-attorney,
and will favored son against other siblings.

FRAUD
• Fraud: where T is deceived by a deliberate misrepresentation and does that which he would not
have done had the misrepresentation not been made.
o 2 Requirements: Must be INTENT to deceive and PURPORSE of influencing testamentary
disposition.
o Problem: it’s VERY hard to tell what T would have done if he knew the true facts.
• Provision(s) in will procured by fraud is invalidated and remainder will stand unless fraud
permeates the entire will or portions invalidated by fraud are inseparable from rest of will.
• A fraud-induced will can sometimes be probated w/ court’s equitable powers creating Constructive
Trust on beneficiary to remedy unjust enrichment.
• 2 Types:
o Fraud in the Inducement:
• When misrepresentation causes T to execute or revoke a will, to refrain from executing
or revoking a will, or to include provisions in wrongdoer’s favor.
• Basically just a lie that affects the will.
• Ex) Heir 1 tells T not to leave property to Heir 2 b/c Heir 1 will give it to Heir 2
herself but Heir 1 has no intention of ever doing so.
o Fraud in the Execution:
• When a person intentionally misrepresents the contents of the instrument signed by T
which does not carry out T’s intent.
• Ex) T w/ bad eyesight asks wrongdoer to bring her prepared will to her to sign,
which is not T’s intended will and wrongdoer knows it.
• Ex) Wrongdoer pretends to destroy a will that T wishes to destroy.
• FRAUD vs. UI:
o UI: there is a substituted judgment (testator’s judgment is substituted for wrongdoer’s
judgment).
• Testator’s free will has been overcome
o Fraud: there is no substituted judgment: T is doing what he wants after being misled.
• Testator’s free will is in tact
• Extrinsic Evidence: Extrinsic evidence is allowed to meet the burden of proving a will was
induced by UI, fraud, and duress.

Puckett v. Krida
• Nurses Krida and Reeves were hired to care for T after hospitalization for Alzheimer’s and T’s
condition improved under their care.
• Nurses isolated T from her family and friends and LIED (fraud) to T by saying her relatives were
wasting her money and wanted her in a nursing home.
• COA set aside will favoring nurses as product of fraud, holding that nurses had confidential
relationship w/ testator for 2 reasons, each being sufficient on its own.
o 1) Their status as nurses.
o 2) Krida’s status as T’s attorney-in-fact under power of attorney.
• This confidential relationship, when coupled w/ encouragement of false beliefs (lying) was enough
 to raise presumption of fraud and UI which the nurses could not rebut.
Notes
• This court conflates fraud and UI which we should NOT do on exam.
o In fraud, independent judgment is being exercised based on misrepresentation, while there is
a substitute in judgment in UI.

DURESS
• Duress: when 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 (REST 3rd
Property 8.3c).
o Basically, when UI becomes overtly coercive.
o Commonly just UI w/ threats of physical violence.
o Law invalidates transfers compelled by duress.
• Extrinsic Evidence: Extrinsic evidence is allowed to meet the burden of proving a will was
induced by UI, fraud, and duress.

Latham v. Father Divine (Where a devisee under an already executed will prevents T by duress from
revoking the will in favor of another, a contructive trust (equitable remedy) should imposed on the
devisee for the benefit of the intended devisee)
• T died leaving a will that gave most of her estate to Father Devine (D), a charismatic religious
leader who the media described as a con man.
• The will was probated and the property was distributed.
• P, the T’s cousin, sued Father Devine (D) seeking a Constructive Trust on him.
• P argues that after T made her will, she expressed her desire to revoke it and make a new one
leaving P most of the estate and that attorneys did draft such a will but T was prevented from
executing the new will b/c of false representation, UI, and physical force by Ds.
• Also, before T’s death, T again expressed desire to change will but D then conspired to kill her and
did so by surgical operation by a doctor engaged by Father Devine (D) w/o consent of T’s relatives.
Holding
• P wins; A constructive trust should be imposed on D for property to benefit intended devisee (P).
• Under REST of Law of Restitution, where devisee under will already executed prevents T by
fraud, duress, or UI from revoking the will, that devisee should hold the property in constructive
trust (equitable remedy which prevents unjust enrichment) for the benefit of intended devisee.
Notes
• If this were a challenge BEFORE probate instead of after, then the will would not have been
admitted to probate and she would have died intestate.

WILLS: Formalities and Forms

• Reasons for Will Formalities:
o PERC:
 Protective Function
• By gathering witnesses together at once, protects T from UI and duress.
  Evidentiary Function
• Creates evidence that disposition accurately represents T’s intentions.
 Ritual
• Ritual function impresses upon T that what they are doing is very serious.
 Channeling Function
• Wills are like a quarter: it’s easy to determine what is a quarter b/c they all have
the same markings and size.
• 3 Most Basic Formalities:
o 1) Writing
o 2) Signature by Testator
o 3) Attestation by Witnesses
• WILLS ACT 1837
o No will shall be valid unless it shall be in writing and executed in manner hereinafter
mentioned…it shall be signed at the foot or end thereof by the testator, or by some other
person in his presence and by his direction; and such signature shall be made or acknowledged
by the testator in the presence of two or more witnesses present at the same time, and such
witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of
attestation shall be necessary
• UPC 2-502: Execution; Witnessed or Notarized Wills; Holographic Wills
o a) Witnessed or Notarized Wills. Except in (b), a will must be…
 1) In writing;
 2) Signed by testator or in testator’s name or by some other individual in testator’s
conscious presence and by testator’s direction; AND
 3) Either:
• A) Signed by at least 2 individuals, each of whom signed w/i a reasonable time
after the individuals witnessed either the signing of will as described in (2) or the
testator’s acknowledgement of that signature or acknowledgement of the will; OR
• B) Acknowledged by the testator before a notary public or other individual
authorized by law to take acknowledgements.
o b) Holographic Wills: A will that does not comply w/ (A) is valid as a holographic will,
whether or not witnessed, if the signature and material portions of document are in
testator’s handwriting.
o c) Extrinsic Evidence: intent that a document constitutes 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.
o UPC here is very lenient and does away w/ both presence requirements so failure to comply w/
these low standards should be fatal to will.
• Attested Will: a will that has been witnessed.
• Attestation clause: recites that the will was duly executed
• Order of Signing:
o REST 3rd Property 3.1: Generally testator must sign will before witnesses attest, but exact
order is not important if they all sign as part of a single/continuous transaction.
o Witness must sign w/i a reasonable amount of time after witnessing.
• “Presence” Requirement/Will Formality:
o Witnesses no longer must sign in presence of testator or other witnesses under UPC 2-
502(a).
 o Line of Sight Test: (some states) testator does not actually have to see witnesses sign but he
must be able to see witnesses if he were to look (or try to see them).
o Conscious Presence Test: (some states) witness is in presence of testator if the testator,
through sight, hearing, or general consciousness of events, comprehends that the witness is in
the act of signing.
• Interested Witnesses:
o Common Law: interested witness cannot be a witness and the entire will fails, then…
o Purging Statute: keep witness as competent witness but that interested witness’s share fails
(purged), then…
o MODERN LAW: UPC 2-505: interested witness may serve as an attesting witness and can
take under the will.
 No longer a problem at all.
• “Signature” Requirement:
o Majority Rule: a distinctive identifying mark acknowledged by testator will suffice.
o “Father” was sufficient in Kimmel’s Estate.
o Signature is important because it indicates finality
 Signifies the moment when the testator acknowledges the will as his own
• Wills Other Than on Paper:
o Will does not need to be on paper as long as it is a reasonably permanent record.
o UPC is purposely unspecific regarding video recording wills satisfying “document or writing”
sufficient for a will under the harmless error rule, which allows defectively executed
document to be admitted to probate w/ clear and convincing evidence of intent for document
to be a will.
o Electronic Wills/Computer Files:
 Nevada enacted law allowing electronic will if there is a single original and a way of
determining if original has been altered.
• This would not satisfy writing or signature requirements but might pass under
harmless error rule or substantial compliance rule.

In re Groffman (Old English Case: Under Wills Act, overriding principle (testator’s intent) is NOT
enough to validate a will which does not comply w/ form/witness requirements)
• Law in place is the English Wills Act of 1837, which requires subscription (signed at foot) by T or
someone under T’s direction, and must witnessed by 2+ witnesses present at same time AND in
presence of T.
• T executed a will and died 3 years later, wife challenged will.
• Wife claims T and both witnesses were not present together when decedent signed as required by
statute (this requirement has since been abolished by UPC 2-502).
• Will as it stands gives estate to wife, daughter, and a daughter from decedent’s first marriage.
• If will were declared invalid, wife would get everything in intestacy.
• Statute allows T to either acknowledge his prior signature or sign in front of 2 witnesses both
present at the same time, which did not happen.
Holding
• Court struck down will even though court believed it was T’s intended will.
• There was no acknowledgement or signature by T in presence of 2 or more witnesses present at the
same time.
Notes
• Most formalities lacking here are abandoned under UPC but this case just shows rigidly.

Stevens v. Casdorph (T’s signature on a will must be in the presence of 2 competent witnesses, both
of whom acknowledge T’s signature in the presence of each other; Mere intent to execute a will
(overriding principle of intent) is NOT enough w/o proper form)
• The Casdorphs (D) took Haskell to local bank to execute his will.
• After signing will in presence of a bank employee, that employee took the will to 2 more
employees, who both signed as witnesses w/o seeing Haskell sign will or speaking w/ him at all.
• After Haskell died, leaving bulk of estate to Casdorphs (D), his nieces (P) objected to will as
improperly executed.
• Circuit court granted SJ for D b/c under the Wade exception of substantial compliance.
o Wade stands for proposition that if a witness acknowledges his signature on a will in the
physical presence of the other subscribing witness and the T, then the will is valid.
 (But here in Stevens, none of this happened).
Issue
• Is a will validly executed when neither of 2 attesting witnesses actually saw T sign will or spoke to
him about it? NO.
Holding
• Affirmed; Will is void; Mere intent to execute a will is not enough.
• By state statute, T’s “signature shall be made or the will acknowledged by him in the presence of at
least 2 competent witnesses, present at the same time, and such witnesses shall subscribe the will in
the presence of the T, and of each other (unlike UPC).
• Here, T did not execute will in front of witnesses, nor did he communicate w/ witnesses to
acknowledge the signature.
• Further, witnesses were not present at the same time as each other.
• Workman Dissent:
o Wade stands for a broader substantial compliance that should be followed.
o Law should NOT place form over substance w/ complete disregard to T’s intent.
o Each case should be judged on its own facts w/o strict application of restrictions that may lead
to an inequitable result.
o Statute here was designed to prevent fraud and UI, not to overcome reliable evidence of intent.
Notes
• Options for the court in this case
o 1) Probate
o 2) Formalities
o 3) Substantial Compliance
• Attestation Clause: a provision at the end of a will where the witnesses certify that the will has
been executed before them, stating that the instrument has been completed in the manner required
by law in the presence of the witness who places his signature in the designated space.
o Gives rise to presumption of due execution although not required not required by any state.
• URICE: thinks that the old rule requiring both witnesses to be together is worthless b/c both
witnesses can be in on the fraud together just as easily as independently.

Estate of Morea (Favors Testamentary Intent!: Overriding Principle of Testamentary Intent:

Statutes restricting form of will should be construed to carry out INTENT OF TESTATOR and
legislature to avoid inequitable and unintended results)
• T executed an uncontested will where 2 takers were also attesting witnesses.
• Issue is whether T’s friend and devisee George must forfeit his bequest as void b/c he was an
attesting witness and T’s son, who was also an attesting witness, was to receive less than his
statutory share.
• NY statute holds that witness who is also a devisee is a competent witness but his share is void
unless there are, at the time of execution and attestation, at least 2 other attesting witnesses who
receive no beneficial disposition under the will.
o This is b/c witness who is beneficiary in will might give false testimony to support their
interests.
• This “conclusive presumption” is NOT the law under UPC and most states.
Holding
• George does NOT have to forfeit his share under the will.
• This court adopts the policy that laws are to be construed to carry out legislative intent and avoid
injustice and hardship.
• The requirement of at least 2 witnesses who have nothing to gain by the admission of the will to
probate is satisfied here b/c of the 3rd witness who is not in the will and the son who is actually
affected adversely by the will.
Notes
• Purging Statute: law makes an interested witness to a will a competent witness (instead of
rendering him incompetent b/c he is interested) but voids his bequest.
• Actual holding is a MINORITY view b/c mostly judges find the conflict of interests too great to
allow any interested party to be a witness to a will.
o HOWEVER, now under UPC 2-505, there is no rule against interested witnesses and anyone
may witness regardless of their status as a beneficiary under the will: neither the will nor their
share will be void.

Pavlinko and Snide go together; Same facts, different holding!

In re Pavlinko’s Estate (A will mistakenly signed by someone other than the T is NOT valid; Will
must be signed by T)
• Vasil Pavlinko and his wife, Hellen, hired an attorney to draw up their wills.
• In the wills they left everything to each other and, in the event that one predeceased the other, to
various other people.
• Vasil and Hellen signed each other’s wills by mistake.
• Helen died first but her will was not probated.
• Following Vasil’s death, Hellen’s brother (who was residuary legatee of her will which was signed
by Vasil) offered the will signed by Vasil for probate.
• Probate was refused and Hellen’s brother appealed.
Issue
• When a H signs a W’s will and a W signs a H’s will and one of the wills is taken to probate
following the death of both H and W, can the will be probated? NO.
Holding
• Affirmed; the will was a nullity.
• Court gives strict interpretation of Wills Act of 1947 that requires T’s signature.
• Will Act becomes meaningless once the courts ignore, alter, or make exceptions to it that
could lead to fraudulent claims that the Wills Act successfully bars.
• Musmanno’s Dissent: The residuary clause should stand after looking w/i the 8 corners of both the
wills.
Notes
• Had Hellen’s will been presented when she died, Vasil could have cured the problem by executing
a new will.
• Courts don’t like to fix mistakes in wills!

In re Snide (Liberal Reading of Statute/INTENT: Under narrow circumstances, a will can be validated
through reliable evidence of a valid testamentary scheme, although formalistic requirements are
lacking)
• Harvey and Rose Snide executed identical wills and each accidentally signed the will of the other.
• After Harvey’s death, Rose petitioned to reform Harvey’s will and have it admitted to probate.
• 2 of the couple’s children, who were over 18, consented to the reformed will w/o objection, but a
guardian ad litem representing the couple’s other minor child refused to concede to the validity of
the will b/c intestate succession was the only means by which the minor child receive anything.
• Surrogate Court reformed the will and sent to probate, App. Div. reversed.
Issue
• Same issue as last case (Pavlinko).
Holding
• Reversed; will should be probated.
• Although Harvey had no intent to execute the will he actually signed, testamentary intent does not
attach to the specific document signed so long as the T intended to execute a will.
• Harvey’s actions clearly evinced a valid testamentary scheme, which he carried out as required by
statute.
• There is no evidence of fraud, and dismissal of T’s intent would result in unjust consequences.
• Court did NOT look at the will in terms of intent to execute the document, but intent to
execute the disposition.
Notes
• Very narrow holding.
• Guardian Ad Litem: guardian (lawyer) appointed by court to represent a minor/incapacitated.

SUBSTANTIAL COMPLIANCE vs. HARMFUL ERROR

• Substantial compliance deals more w/ purposes of the will formalities while harmless error deals
purely w/ T’s intent.
• JOHN LANGBEIN:
o Architect of both substantial compliance and harmless error in the U.S.
 After proposing substantial compliance in a law review article, Langbein observed that
the substantial compliance doctrine is a sort of near-miss standard that does not give
utmost focus to T’s intent.
• Therefore, Langbein proposed the harmless error rule that was adopted by UPC 2-
503.

SUBSTANTIAL COMPLIANCE
• Def: Where court deems a defectively executed will as being in accord w/ statutory formalities if
the defective execution nonetheless fulfills the PURPOSES of those formalities.
o When there is substantial compliance for the purposes of the formalities.
 o Standard: clear and convincing evidence that the purposes of the Wills Act are being
accomplished (court is respecting formalities!) then the will will be admitted to probate

In re Will of Ranney (A will may be admitted to probate so long as it substantially complies w/ the
applicable statutory requirements and formalities)
• Will was signed by 2 witnesses but the witnesses mistakenly signed only on the attached self-
proving affidavit, not on the will itself.
• T was asked by attorney if the document was intended to be his will which he replied “yes.”
Issue
• Should a will that includes the signature of 2 witnesses mistakenly signed on an attached self-
proving affidavit, but not the will itself, be admitted to probate? YES.
Holding
• Purposes of Wills Act requirements have been substantially complied with.
Notes
• IMPORTANT CASE!!! P. 253
• Attestation demonstrates due execution
o If there is a contest, the witnesses will be called into court and questioned
• Self-Proving Affidavit: an affidavit signed by witnesses and attached to a will whose purpose is to
show proof that the T was of sound mind and under no duress at the time he signed the will.
o Presents sworn testimony as to what has occurred so that witness would not have to go
to court if there were to be a contest

HARMLESS ERROR
• UPC 2-503: Harmless Error
o Although document was NOT executed in compliance w/ 2-502, it is treated as if it had been
if proponent of document establishes by CLEAR AND CONVINCING EVIDENCE that
decedent INTENDED the document to constitute (1) decedent’s will, (2) a partial or
complete revocation of the will, (3) an alteration to will, or (4) a partial/complete revival of
his formerly revoked will or a formerly revoked portion of the will.
 More subjective

In re Estate of Hall (Although a will generally requires 2 attesting witnesses, a document may be
validated w/ clear and convincing evidence that decedent intended the document to be his will)
• Jim dies survived by wife and 2 daughters from 1st marriage.
• In ’84, Jim executed original will and 13 years later he and his current wife decided to execute a
Joint Will, their attorney drafted and met w/ them to discuss it.
• Jim and wife substantially agreed w/ it and desired only minor changes but asked if the draft could
stand until the final version arrived, and Jim and wife signed, lawyer notarized, no other witnesses.
• Later that day, Jim asked wife to tear up the original will, which the wife did, then Jim dies and
wife seeks informal probate of the Joint Will.
• 1 of the daughters objected to the probate and sought to formally probate the original will.
Issue
• Is a document signed before a notary public w/o 2 attesting witnesses a valid and enforceable will
if so intended by signatory? YES.
Holding
• Affirmed; Joint will should be admitted to probate.
• If clear and convincing evidence establishes that T intended the document to be his will, it is
 enforceable although not attested to by independent witnesses.
• Although the will was not in final form, Jim and wife intended to validate the draft joint will.
• Under harmless error doctrine, the key element is INTENT.
Notes
• Under UPC 2-502, notary is sufficient w/o needing harmless error rule.

NOTARIZED WILL
• UPC 2-502 (Equivalent to Wills Act)
o (a) provides that a formal will that is in writing and signed by testator may be either attested
by 2 witnesses or…
 (3)…(B) acknowledged by the testator before a notary public or other individual
authorized by law to take acknowledgements.

In re Will of Ferree
• This will WOULD have been admitted to probate under UPC b/c witnesses can be substituted a
notary…
• Will was signed by T and notarized but no witnesses.
• Will is not admitted to probate b/c it did not substantially comply w/ formalities.
• Another court might find substantial compliance here under Ranney.

HOLOGRAPHIC WILL
• Def: a testamentary document written by the T’s own hand, signed by T, but not witnessed.
o This is often the only means a T has for showing testamentary intent.
• Authorized by UPC 2-502(b) if signed by T and material portions in T’s handwriting.
• UPC authorizes a signature and notarization in place of witnesses

Kimmel’s Estate (An informal letter to a family member can be a valid holographic will, as can a
variety of other types of documents)
• Kimmel writes a letter and mails it to his sons George and Irvin and dies that afternoon.
• The letter stated that T wanted to give some valuable papers to his sons and says that the letter may
help them out.
• The letter was handwritten by T and signed at the bottom with the word “father.”
• His sons received the letter after his death.
Issue
• Can a letter containing some testamentary provisions be probated as a valid holographic will?
YES.
• Is the letter testamentary in character? YES.
• Does “father” constitute a signature for a holographic will? YES.
Holding
• Will is valid; Although the informal nature of letter is significant, its importance decreases the
more it looks testamentary in nature.
• Other types of documents that have been held to be valid wills are deeds, checks, notes, and
agreements.
• The contingent nature of the letter (“if enny thing hapens”) strongly supports the testamentary
nature of the letter; it is hard to understand what else the letter could have meant.
• The “father” signature is effective for the Wills Act if it was intended to be for testamentary
purposes and this was the case here.

In re Estate of Kuralt (Extreme Leniency Toward Formalities! When a document evinces a

PRESENT testamentary intent, the court will honor the T’s intent as a holographic will or codicil)
• In 1989, T who was married, gave mistress (P) a holographic will giving her Montana property.
• In 1994, T executed formal will that included no mention of Montana property to mistress and
leaves everything to his wife and kids.
• In 1997, T sold part of the property to mistress basically paid for w/ his own money, and they
arranged for a 2nd transaction for the remainder of the property.
• Before 2nd transaction, T became ill and when admitted to the hospital, he sent mistress a letter
saying (“I’ll have lawyer make sure you INHERIT the rest of the Montana property”) but he died
before making the arrangements.
• Mistress sought to admit the letter into probate as a holographic codicil to his will.
• DC refused to admit letter b/c it was only future intent and granted SJ to the estate (D).
• Montana SC reversed and remanded for issues of fact.
• On remand, DC letter was valid codicil and entered judgment for Shannon, estate appealed.
Issue
• Did the 1997 letter to mistress (P) demonstrate a present testamentary intent to modify the terms of
the 1994 will, thus making it a holographic codicil? YES.
Holding
• Affirmed; The 1997 letter was a holographic codicil to the 1994 will.
• The use of the term “inherit” demonstrated his present intent to provide for mistress in his will.
• Factual record (EXTRINSIC EVIDENCE allowed under UPC 2-502) supports view that T
intended to transfer Montana property to mistress.
Notes
• The T’s facing imminent death makes these types of letters more likely to be considered
PRESENT testamentary intent.
• URICE: Kuralt on his death bed probably would NOT have said that his letter was intended to be a
codicil, even though it was probably his intent to transfer the property.
o This is where URICE thinks the Montana SC fucked up.
o Where do you draw the line w/ leniency on the formalities?
• Questions to Consider (b/c this case blurs the lines!!)
o What about a letter from T to T’s lawyer to draft a will in accordance w/ stated disposition?
o What about a videotape of T stating his testamentary disposition w/ no signature?
• Problem is it is clearly intent but the holographic will writing is not present.
o Credible evidence by a group of friends to whom T stated his testamentary plan??
• Mistress went to sue for ancillary probate in Montana b/c venue for probate of real property is
where the real property is located.
• EXTRINSIC EVIDENCE: UPC 2-502: Extrinsic evidence may be used to establish if there is
testamentary intent in a document which should constitute a will or codicil, including holographic
wills and portions of the documents that are not in the testator’s handwriting.

STATUTORY FORM WILLS AS HOLOGRAPHS

• Can we allow statutory “form wills” (templates) to be holographic (thus not needing attestation)
 even if it is only partially hand written?
o UPC now requires 2 things for such circumstances:
 1) Signature.
 2) Material portions must be in testator’s handwriting.
 HOWEVER, UPC permits use of extrinsic evidence to determine testamentary capacity,
including incorporating portions which are not in T’s handwriting to prove intent for
document to be T’s will.

Estate of Gonzalez (When a “Form Will” is presented for probate as a holographic will (no
witnesses), the preprinted portions of the Form Will can be incorporated into the holographic will to
draw testamentary context and should not be ignored by court if they were not ignored by T)
• T executed a Form Will w/ a large section being in his handwriting in presence of his brother and
brother’s wife.
• T had 2 of the forms, he filled out and signed 1 as a rough draft, and had the brother and brother’s
wife sign the other blank copy which he intended to fill in more neatly later and sign.
• T died before he could fill in the other will.
• Proponent wants this admitted as a holographic will.
• Witnesses offered the evidence of what happened.
Holding
• Admitted as a valid holographic will even though it is only partially handwritten.
• Courts have dealt with this situation in 1 of 2 ways:
o 1) Look at the preprinted portions to determine the context of the handwritten words.
 AZ SC says testamentary intent is easy to determine by looking at preprinted portion.
o 2) Look at the handwritten words alone and determine if there is testamentary intent.
• Court agrees w/ 1st method and says the preprinted portions can be incorporated into holographic
will where the trial court finds testamentary intent considering all evidence.
• Preprinted portions should not be ignored by court since they were not ignored by T.
Notes
• UPC 2-502(c) on extrinsic evidence specifically allows portions not handwritten in holographic
wills to be admitted to prove that the document constitutes T’s intended will.

REVOCATION OF WILLS
• 2 Requirements to Revoke:
o 1) Revocatory Intent
o 2) Revocatory Act
• UPC 2-507: Revocation by Writing or Act:
o Will or any part thereof is revoked:
 (1) By executing subsequent will that revokes expressly or by inconsistency, OR
 (2) By revocatory act on the will if T performed act w/ intent of revoking or if someone
else performed the act in T’s conscious presence and by T’s direction.
• Revocatory Acts: burning, tearing, cancelling, obliterating, or destroying will or
any part of it whether or not all words are unaffected.
• Factual determination is required to establish there was intent to revoke w/ the act.
o Accidental burning, etc. does NOT revoke.
• Will is ambulatory document: it is subject to modification or revocation by T during lifetime.
• All states permit revocation 2 ways:
o 1) By subsequent writing executed w/ testamentary formalities.
o 2) By physical act such as destroying, obliterating, or burning the will.
• Oral revocation, w/o more, is inoperative in ALL states and will is admitted to probate.
• PRESUMPTION OF REVOCATION
o Will last known to have been in possession of T but not found after T’S death: presumption
arise that T revoked
• UPC §2-503: HARMLESS ERROR (P. 258)
o Explicitly applies to revocation of a will…
o You don’t get harmless error if you could get the same result through other means
o REMEMBER: these are CURATIVE doctrines
• HYPO: P. 287
o Subsequent revocation of a codicil, unless the T expressly intended that it be a revocation of
the underlying will, is NOT revocation of the underlying will…a codicil is merely a
subsequent instrument to the underlying will
o Revocation of will also revokes a codicil to that will UNLESS there is evidence that T intended
that the codicil function independently
• REVOKING BY INCONSISTENCY:
o Modern View:
 Complete Disposition: subsequent will that does not expressly revoke prior will but
makes a complete disposition presumptively replaces prior will.
 Partial Disposition: if subsequent will does not expressly revoke and is only a partial
disposition, it is treated as a valid codicil and property not disposed of is disposed of in
accordance w/ prior will.
• Codicil: UPC 2-507(b)-(d) a testamentary instrument that supplements rather than
replaces a previous will.
• Revocation by Operation of Law
o In some cases, such as upon final divorce decree, wills of spouse become invalid.
REVOCATION OF CODICIL
• Revoking the codicil does NOT revoke the underlying will but revoking the underlying will
revokes the codicil.

Harrison v. Bird (If evidence establishes that a person had possession of her will prior to her death,
but the will is not found among her personal effects after her death, a presumption arises that she
destroyed will w/ intent to revoke the will and thereby revoked all duplicates)
• In 1989, T executed a will making Katherine (P) her main beneficiary.
• T’s attorney retained the will and a duplicate was given to T.
• In 1991, T called attorney and said she wanted to revoke the will, so attorney tore it into 4 pieces
and sent it to T w/ a letter telling her what had been done and stating “you are now w/o a will.”
• T died later that year and the letter from the attorney was found but not the 4 pieces of the will.
• Probate court did not admit a will and proceeded to intestacy.
• Katherine (P) objected and filed a document purporting to be the duplicate of T’s will.
• TC ruled that the attorney revocation was invalid but since the pieces of the destroyed will were
not found after T’s death, there arose a presumption that T revoked the will herself and probate of
the duplicate was denied; P appealed.
Issue
• Can revocation of a will be presumed when a person’s will is not found among her personal effects
after death? YES.
Holding
• Rebuttable presumption that T destroyed will if it is known to be in her possession at time of death
but it is never found.
• Further, if T destroys the copy of the will in her possession, a rebuttable presumption arises that
she has revoked her will AND ALL DUPLICATES even though a duplicate exists that is not in her
possession.
o However, this presumption of revocation is rebuttable and the burden of rebutting the
presumption is on the proponent of the will
Notes
• UPC requires that if someone else destroys will under testator’s direction, it must be done in
“conscious presence” of the T.
o But the main revocation here came from the absence of the pieces of the will.
• Harmless error would have helped in this case because there is clear and convincing evidence of
an intent to revoke
• Letter of Administration: a formal document issued by a probate court that appoints a certain
person to be the administrator of an estate, usually when there is no valid will and estate will pass
through intestacy.

Thompson v. Royall (If written words are to be used to revoke a will sufficient for
CANCELLATION ACT w/ intent to revoke, the words must be so placed as to physically affect the
written portion; merely writing on blank parts of the paper is not enough; But, writing and signature
could be a holographic codicil)
• T executed a will in 1932, and 11 days later added a codicil, and 4 days after that she decided that
the will should be destroyed.
• At attorney’s suggestion, T did not physically destroy will but saved it to reference if a new will
was to be written.
• On the back of both the will and codicil, lawyer wrote and she signed: “Null and void and to be
only held by H.P. Brittain instead of being destroyed as a memorandum for another will if I desire
to make same.”
• T died that year leaving $200k; some beneficiaries of will attempted to probate it.
• Jury found instruments were T’s will on the issue devisavit vel non (whether will is valid).
Issue
• Is writing words of cancellation on back of a will sufficient to truly affect a revocation? NO.
Holding
• Will valid; Revocation invalid.
• UPC 2-507 does not allow for mere words of cancellation to revoke.
• The words on the will were not wholly in T’s handwriting and no witness signatures are present.
o To revoke duly executed will, proof of 2 things required are (1) the required specified ACT
(burning, cutting, canceling, etc.), and (2) the required INTENT to revoke.
 Proof of intent to revoke is present but NOT one of the specified required acts.
• Only contention for valid revocation is that the words constitute “physically cancelling” under the
statute (and UPC).
• HIGH BURDEN FOR CANCELLATION: Cancellation act requires lines, marks, or erasures
across the written parts of document or physical defacement or mutilation of the writing itself w/
 intent to revoke.
• If all of the words written on the will were written by T herself, then it could have been
construed as a holographic codicil (always be thinking holographic codicil and Kuralt).
Notes
• Harmless Error: this would be a valid revocation under harmless error rule of UPC 2-503 b/c there
was probably clear and convincing evidence of intent to revoke.
• Warner v. Warner and other following cases allowed writing of “this will is hereby cancelled and
annulled” to suffice for cancellation, but Thompson court rejected the line of cases.
• Always look for “sufficient defacement” for the act of “cancellation.”

DEPENDENT RELATIVE REVOCATION

• Doctrine of Dependent Relative Revocation: if T purports to revoke his will upon a mistaken
assumption of law or fact (i.e. that some other estate plan would take effect), the revocation is
ineffective if T would not have revoked his will had he known the truth (REST 3rd Property 4.3).
o Reasoning: true revocatory intent is lacking if revocation is based on mistake.
o Ex) T destroys old will thinking new will is valid when it is not, court will probate old will if
it thinks T would not have revoked if he knew of new will’s invalidity.
o This is a doctrine of presumptive intent, not actual intent.
o Under UPC 2-507, DRR is a law of second best and it’s suppose to come as close as it can to
T’s intent. A precondition for DRR is the T’s intent. Under the UPC with Harmless Error, if
there is clear and convincing evidence of what T wanted, you can generally achieve what T
wanted.

REVIVAL
• UPC 2-509: Revival of Revoked Will
o A) If will #2 wholly revokes #1, revocation of #2 by physical act does NOT revive #1 unless
it is evident under circumstances or T’s contemporaneous declarations that T intended the
revocation of #2 to revive #1.
 This was not followed in Alburn, which used DRR to revive 2nd will.
o B) If will #2 revokes will #1 only in part (codicil), then the revocation of will #2 by a
physical act revives the provisions of #1 unless contrary to T’s intent.
o C) Will #1 that was revoked by #2 is not revived by #3 unless #3 makes it clear that testator
intended the revival of will #1.

REVOCATION BY OPERATION OF LAW

• Majority: Divorce revokes testamentary provisions in will to former spouse.
o UPC 2-804 expands principle to apply also to:
 (1) Nonprobate transfers.
 (2) Relatives of former spouse.
• Assumes that ex-spouse will not want to bequest to family of former spouse.

LaCroix v. Senecal (The Doctrine of Dependent Relative Revocation sustains a revoked gift if a T
cancels/destroys a will w/ a present intention of making a new one immediately as a substitute and the
new will is not made or, if made, fails of effect; Would just be harmless error if it were available)
• T executed a will naming LaCroix (P) as her sole heir and leaving 1/2 of the residue of her estate to
her nephew and other 1/2 to Senecal (D).
• After that, T executed a codicil revoking the residuary clause and replacing it exactly except
replacing nephew’s nickname w/ his given name.
• Senecal’s (D) husband witnessed the signing of the codicil but under CT law, husband is an
interested and thus void witness.
Issue
• Was the gift to Senecal (D) void as a result of her husband’s witnessing of the codicil’s execution,
even when the only change to the original will intended by the T was to clarify the identity of the
other residual beneficiary? NO.
Holding
• Doctrine of Dependent Relative Revocation applies and D’s gift is not void.
• When a gift under these types of circumstances fails, the law will presume that T would prefer
original will over intestacy.
• Evidence of T’s true intent is crucial.
• Clear here that purpose of codicil was only to clarify, not to alter.
Notes
• Here, D’s share would have been purged under the purging statute.
• What if the new residuary clause changed more than just the nickname but changed to 90%-10%
instead of 50-50?
o With no harmless error rule in effect it would be very difficult to enforce the 90-10 split given
the formality defect.

Estate of Alburn (Doctrine of Dependent Relative Revocation applies to the unusual situation in
which testator revokes/destroys a later will under the mistaken belief that by doing so he is reinstating
a prior will; DRR revives the 2nd will BUT UPC 2-509(a) would seem to revive Will #1)
• T lived in CA until her husband died, then moved to the Midwest.
• She lived in Milwaukee w/ a grandniece for a while then moved in with a brother in Illinois, then
on to Ft. Atkinson to live w/ another brother.
• While in Milwaukee, she executed a will that was given to attorney for safekeeping.
• When she moved to Illinois, she executed another will w/ a revocation clause (thus revoking
Milwaukee will) making a slightly different disposition of her property.
• Neither will left more than 1/10 to a sibling; most went to friend Olsen and sister-in-law Lulu.
• When T moved to Ft. Atkinson, she destroyed the second (Illinois) will tearing it up.
• T made statements to brother’s wife that by doing this she meant to revive Milwaukee will.
• After T died, T’s sister Adele (P) sought to have T declared to have died intestate.
• Both wills were offered for probate and TC applied Doctrine of Dependent Relative Revocation.
Issue
• When a 2nd will is revoked w/ the intent of reviving the 1st will (that was technically revoked by
the 2nd will), should the 1st will be given effect? NO but 2nd will should be revived under DRR.
Holding
• Affirmed; 2nd will should be probated.
• 1st will cannot be revived b/c of the revocation clause in the 2nd will so this is all the court could do
under WI law which does not allow for revival.
o Under UPC 2-509(a), court could have revived the 1st will as T intended but WI law got in the
way.
• Only question under review is whether TC’s finding that T revoked the 2nd will under mistaken
belief that she was thereby reinstating the 1st will is against the great weight and clear
preponderance of the evidence.
o It is NOT so TC must be affirmed.
• Testimony that T expressed her desire to reinstate 1st will by destroying 2nd will was huge.
• The huge difference b/t disposition in the wills and intestacy was important here.
Notes
• UPC 2-509(a) on revival would have revived Will #1 here but WI law is different.
• Extrinsic evidence that T wanted 1st will revived:
o 1) Testimony of brother’s wife to that effect.
o 2) The fact that she did not make another will.
o 3) The fact that the 1st will duplicate was still w/ the attorney.
• WILL REVIVAL P. 304
o Majority: Will #2 revokes #1 at law when #2 is executed.
o Common Law and Minority: Will #1 is not revoked unless will #2 is effective at death.
o UPC 2-509: Three circumstances…
 First: a will that is wholly revoked by physical act
• UPC sec 2-509(a) If will #2 (the revoking instrument) wholly revokes #1,
revocation of #2 by physical act does NOT revive #1 unless the proponent of #1
has evidence that the decedent INTENDED the revocation of #2 to revive #1
 Second: a will that is partially revoked by physical act
• UPC § 2-509(b): if #2 revokes #1 only in part, then the revocation of #2 by a
physical act revives the provisions of #1 (unless contrary to T’s intent)
 Third: a will that is revoked by yet another will
• UPC § 2-509(c): #1 is not revived by #3 unless #3 makes it clear that T
intended the revival of #1

WILLS COMPONENTS
• Core Question: What components (documents) can constitute part of the testamentary scheme.
• Problem is that wills are usually written on more than 1 piece of paper.
o Must every page of a will be signed and attested?

1) INTEGRATION REST. 3rd Prop 3.5:

• Other writings/pages/documents are treated as part of a will if the pages/writings are:
o (1) PRESENT when the will was executed, AND
o (2) INTENDED to be part of the will.
• Usually not a problem unless there are multiple loose papers.
• Extrinsic evidence is admissible (i.e. stapled, sentence carries over to next page, etc)

2) REPUBLICATION BY CODICIL REST. 3rd Prop. 3.4

• A will is treated as if it were executed when its most recent codicil was executed, 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
 o A will is treated as re-executed as of the date of the codicil
• The codicil must be valid and must be attested to by two witnesses
• Republication applies only to a prior validly executed will, whereas incorporation by
reference can apply to incorporate into a will language or instruments that have never been
validly executed

3) INCORPORATION BY REFERENCE: UPC 2-510

• A separate writing may be incorporated by reference into a will or codicil if:
o 1) The writing is ALREADY IN EXISTENCE when the will (or codicil) is executed.
o 2) The will manifests INTENT to incorporate the writing by reference, AND
o 3) The will DESCRIBES THE WRITING SUFFICIENTLY to permit its identification.
• REST 3rd Prop. 3.6: A writing that is not valid as a will but is in existence when a will is executed
may be incorporated by reference into the will if the will manifests an intent to incorporate the
writing and the writing to be incorporated is identified with reasonable certainty
• Basically, all documents pre-existing at time of will execution (or codicil) are incorporated into the
will when will expresses intent to incorporate and sufficiently describes the writing.
• Main difference here is writing does not have to be present w/ will (can be at T’s home).
• UPC 2-513: advantage is to include all of the other small tangible items that are not explicitly
disposed of in the will but that the T still wishes to have inherited
• UPC except for money, tangible personal property under the UPC, testator’s are given the option of
having a running list at home of their personal objects and the option to go back and amend their
will as the list grows

Clark v. Greenhalge (A will may incorporate by reference any document not so executed and
witnessed if (1) the document was in existence at time will was executed, and (2) the document is
identified by clear and satisfactory proof as the paper referred to in the will; LENIENT
INCORPORATON BY REFERENCE CASE b/c the document to be incorporated was NOT
sufficiently described)
• T executed will in 1977 where all property went to cousin except for items “as I may designate by
a memorandum left by me in accordance w/ my known wishes.”
• T owned a large oil painting worth $1800 which hung in her home.
• Back in 1972, cousin helped T draft the document entitled “MEMORANDUM” which made 49
specific bequests, none involving the painting.
• T also kept a notebook (separate from memorandum) in her drawer in which she made notations
including “Farm picture to P” probably in Feb. 1980 based on testimony.
• T also told nurses and P that she planned on giving the painting to P, her neighbor.
• In May 1980, T made 2 uneventful codicils to the 1977 will (republication).
• Cousin got the notebook after T’s death and made all distributions in it but the painting.
• Most of the $2 million estate went to cousin, P sued for the painting, TC ruled for P.
• Main issue was whether the quote about the memorandum from the 1977 will incorporates by
reference the notebook.
• D argues that the notebook cannot be considered a “memorandum” w/i the meaning of the 1977
will clause b/c it is not identified as such and the clause specifically mentions “a (singular)
memorandum” thereby excluding the additional notebook.
Issue
• Can specific written bequests of personal property contained in a notebook that was maintained by
a T be incorporated by reference into the terms of that person’s will? YES.
Holding
• Affirmed; Written bequest of painting going to P was proper.
• Such a literal interpretation of the 1977 will clause (allowing only a labelled “memorandum” to be
incorporated by reference) is not appropriate b/c the cardinal rule in will interpretation is INTENT.
• Circumstances and language in the notebook conveys clear testamentary intent in notebook.
• Notebook was in existence on dates T executed the codicils to her will which effectively
republished her will, as required to incorporate by reference.
Notes
• Harmless error clear and convincing evidence standard would probably be met here for the
notebook as well b/c the notebook was obviously evinced present testamentary intent.
• D’s bad faith played a large part in court’s decision.
• QUESTIONS P. 315
o 1) Suppose that the entry in the notebook would have been made after the 1980 codicils.
Could it have been given effect? Could it have been given effect under UPC 2-503 or the
substantial compliance doctrine? Under UPC 2-513?
 2-503: Under standard incorporation by reference doctrine, if it had been made after
1980 but before she died in 1986 then it would NOT be given effect
 Harmless error: it could possibly be given effect under the curative doctrines if you
have clear and convincing evidence of what the T wanted…it is not a slam dunk
 Under 2-513: it could be given effect because the temporal requirement doe not exist in
2-513 and it meets the tangible personal property requirement (it is not money)

3) SEPARATE WRITING IDENTIFYING DEVISE OF CERTAIN TYPES OF

TANGIBLE PERSONAL PROPERTY: UPC 2-513
• 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 disposed of by will,
other than money.
• To be admissible as evidence of the intended disposition, the writing must be SIGNED by T and
must describe the items and devisees w/ 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 execution of the will; it may be altered by testator after its preparation;
and it may be writing that has no significance apart from its effect on the dispositions made by the
will.
Notes
• In CA, no single item passed by separate writing can be in excess of $5k.
• Separate writing may order sale of tangible personal property w/ proceeds to be distributed to
legatees (Moor).

4) DOCTRINE OF REPUBLICATION BY CODICIL

• REST 3rd Property 3.4: Will’s execution date is that of the execution of its most recent codicil,
whether or not codicil expressly republishes the prior will, unless this would be inconsistent w/
testator’s intent

EVENTS OF INDEPENDENT SIGNIFICANCE: UPC 2-512

• Permits a T to effectively change his beneficiaries or disposition of his property w/o changing his
will, if acts or events changing the disposition have some significance beyond avoiding the
requirements of the will (making them nontestamentary acts).
o Ex) “$100 to all people who are employed by me at my death.”
 Must be determined that T really wanted change in employees thus making it
nontestamentary.
o Ex) “The car I drive at my death goes to my nephew.”
 Must be determined that T really wanted the car upgrade for himself thus making it
nontestamentary.
 If the act that changes the nephew’s gift has no significant attempt but to change the
gift, the court is likely to find the codicil invalid since it does not comply with will
formalities
• UPC 2-512: 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 T’s death. The execution or revocation of another
individual’s will is such an event.
o Ex) T leaves “car I own at my death to nephew,” and 2 years later upgrades from a Honda to
a Porsche and dies the next day, the gift remains valid b/c T probably bought the car for her
own upgrade purposes (nontestamentary act), not w/ intent to alter disposition.
 If it is found that the purpose of buying the car was ONLY to alter the disposition, then
the gift is void and the Porsche passes to the residuary.
 Proving independent significance is very difficult although extrinsic evidence is
allowed.
 Purpose of requiring independent significance is to prevent circumvention of the wills
formalities thereby preventing UI and fraud.
 URICE:
• Thinks that in a “contents of my home” clause, cash and stock certificates in the
house would not fall w/i the doctrine of acts of independent significance: too
close to trying to game the system.
• Everything in a “contents of my safe deposit box” is usually upheld under acts
of independent significance b/c fraud is less likely in such cases: hard to gain
access to the box.
• P. 324 EXAMPLES
o T bequeaths the “contents of my house” to A. in T’s house, are a variety of belongings, as
well as a safe containing stock certificates and cash. Does A take these items?
 URICE: there’s no question that the common belongings are in the doctrine independent
significance but we’re moving outside the doctrine as far as the contents of the safe
because he’s able to remove cash in and out of the safe, changing what A will get
o T bequeaths “the contents of the right-hand drawer of my desk” to A. in the drawer at T’s
death are a savings passbook, certificate of shares, and a diamond ring. Does A take these
items?
 Here, again the T is able to change the contents that are in the drawer but it is more
specific than saying “house”
 URICE: there is such an opportunity for fraud here and we need to know more about
T’s behavior, whereas in the first case, there is a safe and it will be hard for the
beneficiary to enter into the safe and change what is in it
o T bequeaths the contents of my safe deposit box in Security Bank to B and the contents of my
 sage deposit box in First National Bank to C. do B and C take the items found in the boxes?
 Here we take out the element of fraud because T is the only one with access to the safe
deposit box. However, no one knows what the T is doing when he goes to the safe
deposit box and he is able to shift items around changing the disposition of what the
beneficiaries receive.
o In 2000, Sarah executes her will devising the residue of her estate to any charitable trust
established by the will and testament of her brother, Barney. In 2001 Barney executes his
will, devising his property to the Barney Educational Trust, a charitable trust established by
his will. In 2008, Barney dies. In 2009 Sarah dies. Is the Barney Educational Trust entitled to
the residue of Sarah’s estate?
 This is a valid gift because the ultimate recipient is determined by her brother’s choice
and it is unlikely that her brother’s choice is going to be determined in any other way
than what he wants, and she is willing to leave it up to her brother. The brother’s choice
has independent significance and he is not going to choose a charity merely to affect
where his sister’s money goes.
 She has given her brother a special power of appointment to choose where her money is
going to go
o T’s will provides: “I have put in my safe deposit box shares of stock in several envelopes.
Each envelope has on it the name of the person I desire to receive the stock contained in the
envelope.” At T’s death, several envelopes are found with the name of a person written on the
envelope. Inside each is a stock certificate. Do others persons take the stock in the envelopes
bearing their names?
 URICE does not find any independent significance here…but you could make them
valid through incorporation by reference

CONSTRUCTION OF WILLS
AMBIGUOUS LANGUAGE

• CONSTRUCTION
o The application of well known rules
• REFORMATION
o The process by which a court corrects an innocent mistake
o UPC 2-805
 The court may reform the terms of a governing instrument, even if unambiguous, to
conform to the terms to the transferor’s intention if it is proved by clear and convincing
evidence that the transferor’s intent and the terms of the governing instrument were
affected by a mistake of fact or law, whether in expression or inducement.
• COMMON LAW:
o Very hesitant to allow EE b/c they did not want to affect the T’s safe harbor from courts
varying words on the face of the will.
o Distinction b/t patent and latent ambiguity (but now merged b/c too hard to distinguish).
 Patent Ambiguity: ambiguity that appears on the face of the will.
• Common Law = NO extrinsic evidence to clarify patent ambiguity and the gift
fails  goes to residuary or partial intestacy if there is no residuary.
 Latent Ambiguity: ambiguity that manifests itself only when the terms of the will are
applied to T’s property or designated beneficiaries.
• Two types:
o 1) Equivocation: when two or more persons or things fit the description
in the will; insufficiently describes takers/gifts; multiple takers/gifts (ex:
a devise to my niece Alicia, when in fact T has two nieces named Alicia)
 CL = Extrinsic evidence was allowed to clarify.
 Personal usage exception: 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 T mean someone
other than the person with the legal name of the legatee
o 2) Where the description in the will does not exactly fit any person or
thing (more common than equivocation)
• MODERN APPROACH:
o Evidence which varies terms of a will is generally barred.
 2 traditional rules operate in tandem to preclude such evidence:
• 1) Plain Meaning/No Extrinsic Evidence Rule: extrinsic evidence may be
admitted to resolve some ambiguities, but the plain meaning of the words of the
will cannot be disturbed by evidence that another meaning was intended.
• 2) No Reformation Rule: reformation (equitable remedy which would correct a
mistaken term in will to reflect what T meant to say) is NOT allowed.
o HOWEVER, let in EE to resolve latent and patent ambiguities if words are reasonably
susceptible to more than one interpretation.
 It is too hard distinguish the 2 types of ambiguities so they have merged.

MISTAKE
• TRADITIONAL COMMON LAW
o No extrinsic evidence or reformation if will is unambiguous on its face (Mahoney v.
Grainger).
• MODERN VIEW:
o Openly reform wills for mistake or ommission by T or scrivener.
o UPC 2-805: The court may reform the terms of a governing instrument, even if
unambiguous, to conform to the terms to the transferor’s intention if it is proved by clear and
convincing evidence that the transferor’s intent and the terms of the governing instrument
were affected by a mistake of fact or law, whether in expression or inducement.
o REST Prop. Wills 12.1: court may reform will to conform text to donor’s intent if it is
established by clear and convincing evidence (1) that a mistake of fact or law (in expression
or inducement) affected the specific terms in document, and (2) what donor’s intent was.
o Reasons to Reform Mistaken Will
 Carry out donor’s intent to maximum extend allowable by law (REST).
 Prevent unjust enrichment.
 Provide a remedy other than attorney malpractice, which fails as a remedy for many
reasons:
• Mistake is not always lawyer’s fault.
• Many lawyers are uninsured or underinsured.
 • Many sentimental valuable involved which damages cannot amount to.
o 2 Types of Mistakes:
 T’s mistake
 Scrivener’s mistake (Erickson)
o JOHN LANGBEIN:
 Langbein had a problem w/ no reformation rule b/c strict compliance with legal
requirements that were meant to be intent-serving led to intent-defeating results.

TRADITIONAL “NO REFORMATION” EXAMPLE

Mahoney v. Grainger (When the instrument has been proved and allowed as a will, oral testimony as
to the meaning and purpose of a T in using the language must be rigidly excluded)
• 10 days before T’s death she sent for an attorney to draft a will in which she gave general legacies
in considerable sums to 2 of her 1st cousins w/ a residuary clause that read “all the rest and residue
of my estate I give to my heirs at law living at the time of my decease absolutely, to be divided
among them equally, share and share alike.”
• T’s attorney testified that T said (orally) that she “had 25 first cousins…let them share it equally.”
• TC ruled that T had 1 heir at law (her aunt/closest heir) and her statements were inadmissible to
prove that she meant for all first cousins to share b/c there was no latent ambiguity in the will
which would permit the statements to prove testamentary intention.
• First cousins appealed to try to get the statements admitted to prove they should be in the will.
Issue
• May extrinsic evidence be presented to try to prove the T’s intent in a will provision? NO.
Holding
• Affirmed; Statements may not be admitted.
• There is no doubt as to the meaning of “heirs at law” in a will.
• Duly executed will must be accepted as final expression of intent under Statute of Wills.
• Oral testimony of meaning and purpose of a will must be rigidly excluded when there is no doubt
as to property to be bequeathed and identity of beneficiaries; will must stand as written.
Notes
• Court takes “no extrinsic evidence rule” very seriously here b/c there is plain language.

EXAMPLE OF CORRECTING MISTAKES W/O THE POWER TO REFORM WILLS

Arnheiter v. Arnheiter (A court has no power to correct or reform a will or change any of the
language therein by substituting or adding words, but may disregard obviously mistaken references
when necessary; “We can’t reform but here we’ll reform”)
• T directed that her 1/2 undivided interest in 304 Harrison Ave be sold w/ proceeds used to create
separate trusts for the benefit of 2 nieces.
• However, T did not own any interest in 304 Harrison Ave at the time of her death or at time will
was drafted but she owned 317 Harrison Ave and never had any other property on Harrison Ave.
• T’s executor (P) petitioned to have the obvious mistake corrected and the will changed.
Issue
• May the court change the language of a will when an obvious mistake is detected after death? NO.
Holding
• Judgment for P; Court cannot correct/reform will BUT mere erroneous description does not vitiate.
• The “304” reference was erroneous so it is rejected which just leaves Harrison Ave property to be
 sold and disposed of, and since T only owns 1 piece of property on Harrison Ave, the court orders
the sale and disposition as T intended w/o reforming will.
Notes
• Court’s Ultimate Theory Here: “Mere erroneous description does not vitiate.”

EXAMPLES OF OPEN REFORMATION OF WILL MISTAKE

• Estate of Lord: SC of Maine reformed scrivener’s mistake of using words “trust” and “trustee”
instead of the proper “estate” and “personal representative.”
• Estate of Herceg: Unintentional ommission from computer error leaving out beneficiary of
residuary clause was filled in w/ extrinsic evidence of prior wills and attorney’s testimony.

Erickson v. Erickson (LIBERALIZATION OF EXTRINSIC EVIDENCE: If BOTH (1) scrivener’s

error and (2) its effect on T’s intent are established by clear and convincing evidence, then that
mistake can be reformed, and extrinsic evidence can be introduced to meet the clear and convincing
evidentiary burden; Here, court reforms a will that is unambiguous on its face)
• T executed a will in Sept. 1988 while he had 3 daughters and was unmarried.
• T married Dorothy (D) 2 days later then died in Feb. 1996.
• Statute provided that “if, after making a will, T marries, and no provision has been made in the will
for such contingency, such marriage revokes the will.”
• T’s daughter (P) contests will, files motion in limine to exclude all extrinsic evidence of T’s intent.
• Daughter argues that to void the will, all court needs to see is will, marriage and death certificates.
• The extrinsic evidence of T’s intent consists of the drafting attorney’s testimony that no revocation
upon marriage was mentioned and it’s obvious T was going to marry D based on will provisions.
• Drafting attorney also wants to testify that T called right before death to make sure everything was
going to D wife.
• TC granted motion in limine but affirmed probate court’s admission of will b/c the will provided
for the contingency of marriage.
Issue
• Should evidence of a scrivener’s mistake be admissible to establish T’s true intent? YES.
Holding
• Reversed/remanded for new trial; Extrinsic evidence (attorney testimony) shall be admitted.
• The will did NOT provide for the contingency of the subsequent marriage of T and the will would
have been revoked by the marriage, BUT…
• Court holds that extrinsic evidence of a mistake by a scrivener should be permitted.
• If BOTH (1) scrivener’s error and (2) its effect on T’s intent are established by clear and
convincing evidence, they will be sufficient to establish the contingency required by statute to keep
the marriage from revoking the will (reformation allowed).
Notes
• Reasononing: Extrinsic evidence is allowed to prove a will was executed in reliance on erroneous
beliefs induced by UI, fraud, and duress cases and there is no policy difference b/t that and
mistake.
• H should have said “I explicitly state that this will should stand regardless of marriage or the
statute which revokes will upon marriage.”
• Contingency: something that is likely but not certain to happen.
• This case is confined to scrivener’s error but UPC (above) allows reformation for T’s mistake too.

Estate of Gibbs (Court shall correct minor mistakes as if they were ambiguities; Fine details of
identification in a will are so common as to permit extrinsic evidence)
• Robert J. Krause claimed T’s estate which was supposed to go to Robert W. Krause but there was
an error in the will.
Holding
• WI SC acknowledged traditional rule against reformation and the fact that there was no ambiguity
which would be required to allow extrinsic evidence, but court corrected the mistake nonetheless.
• Middle initial, street address, etc. are highly susceptible to mistake and should not be accorded
such sanctity as to frustrate clearly demonstrable intent.

Fleming v. Morrison (For a will to be valid, the animus testandi (intent to make a will) must exist
when will is signed or acknowledged in presence of the 3 necessary witnesses and when will is
attested/subscribed by the 3 necessary witnesses)
• T wanted to sleep w/ Mary so he induced her to do so by creating a fake will leaving everything to
Mary, drafting attorney signed as 1st witness, then before last 2 of 3 witnesses signed, T told
attorney it was “a fake made for a purpose.”
• T then took will to 2 other witnesses to sign w/o telling them it was a fake.
Holding
• Will invalid on basis of the extrinsic evidence.
• Proponent of the will has failed to prove the necessary animus testandi.
• Fact that T told drafting attorney that it was a fake is fatal to the will b/c there must be testamentary
intent to make a valid will.

LAPSE AND DEATH OF BENEFICIARY BEFORE DEATH

OF TESTATOR
• Generally, devisee must survive the T or else the devise lapses (fails).
• COMMON LAW LAPSE RULES:
o Specific/General Devise: fell into the residue at common law.
o Residuary Devise: No residue of the residue!; Residue turned to intestacy at common law.
 Ex): if 1 of 2 residuary devisees predeceased T, surviving residuary did NOT get both
residual shares but the predeceasing devisee’s share went to intestacy.
 This was changed by UPC 2-604(b) to allow residue of the residue.
o Class Gift: surviving members of the class split gift regardless of 1 member’s predecease.
o Demonstrable Gift: (gift of property payable from a specific source i.e. cash from account or
stock certificates from my safe): probably went to residue.
o Void Devise: if devisee was dead at time of will execution or is a dog, void devise is treated
same as lapsed devise and see above categories.
• MODERN LAPSE RULES
o Antilapse Statutes: most jurisdictions now have antilapse statutes which, under certain
circumstances, substitute another beneficiary for the predeceased devisee.

Estate of Russell (A void devise (devise to dog) in the form of a residuary clause remains undisposed
of by the will and that void portion passes to heir-at-law by intestacy even if there is another residuary
devisee who will still collect his portion under residuary clause: NO RESIDUE OF THE RESIDUE)
• T left valid holographic will on a card, and front of card left all real and personal property to
 Chester Quinn (D, friend) and Roxy Russell (T’s dog which died after will execution but before T).
• The back side of the card bequested $10 gold piece and diamonds to Georgia Russell (P, niece,
only heir-at-law).
• In petition for determination of heirship, niece alleged that a dog can’t take by will so the 1/2 of
residue to the dog is void and she should take it as T’s sole heir-at-law.
• Quinn introduced evidence of his relationship w/ T, a note to Quinn saying niece should not have a
penny, and a quitclaim deed to show that T intended not to die intestate.
• Niece moved to strike all of Quinn’s extrinsic evidence, motion was denied, and TC found that
Quinn should have everything but the gold and diamonds bequeathed to niece, Quinn was to care
for the dog, and there was no lapse in devise b/c the devisee was a dog.
Issue
• Does a void gift to a residuary beneficiary cause the property of that void devise to pass by
intestacy? YES.
Holding
• Reversed; Niece gets the other half by intestacy b/c the 1/2 residuary devise to the dog was void b/c
CA has a “no residue of the residue” rule.
• No words of the will indicate that the provisions for the dog were merely precatory in nature.
• CA SC on Extrinsic Evidence: let in extrinsic evidence to determine if terms in a will are
reasonably susceptible to the meaning of the party offering the evidence.
o If not, then exclude the EE.
o Plain Meaning Rule applied here: Will was not reasonably susceptible to Quinn’s
interpretation so extrinsic evidence of his interpretation should be excluded.
Notes
• Here, there was a “no residue of the residue” rule in place which is why 100% of the residue didn’t
go to Quinn after the dog’s share was void.
o UPC 2-604(b) does away w/ the no residue of the residue rule and Quinn would have gotten
100%.

ANTILAPSE STATUTES (LOOK AT POWERPOINT)

• Antilapse statutes do not prevent a lapse, but they substitute other beneficiaries (usually
descendants) for the dead beneficiary if certain requirements are met.
o Typical Application: if a devisee is of a specified relationship to the T (UPC =
grandparent or grandparent’s descendants) and is survived by descendants who survive
the T, the devisee’s descendants are substituted for the predeceased devisee.
• These statutes change the common law by giving the predeceased devisee’s gift to that devisee’s
descendants unless T provides otherwise.
• SCOPE: antilapse statute only applies if the devisee bears the particular relationship to T specified
by statute (i.e. descendants of T, descendants of T’s parents, or (UPC) descendants of T’s
grandparents).
• Operates on PRESUMED INTENT to give to devisee’s descendant rather than for gift to lapse.
o If T expressly provides otherwise in case of predeceasing devisee, the statutes won’t apply.
• Antilapse statute ignores common law and looks at intent…allows for the taking by someone who
is related to the testator, instead of automatically putting it back to the residuary
o Problematic because wouldn’t necessarily want it to go to say a nephew or niece over a
 husband or wife
o Statutes say that if this gift is given to someone within a certain degree of relation to the
testator, it is presumed that the testator will want the gift to remain in the family if the named
beneficiary does not survive
 Substitutes a taker for the descendant if there is not one named in the will
• PROCEDURE:
o 1st Step: Who is the beneficiary: someone within the scope of “anti-lapse” statute?
 Make sure the relationship is close enough b/t T and devisee to make sure descendant
falls w/i the terms of antilapse statute.
o 2nd Step: When did B die-before will (=”void bequest” under common law) or after will (but
before T dies)
 Look at when beneficiary died: if before the will was executed, the gift might be void
in minority of states (depends if antilapse statute applies to void gifts: usually does).
o 3rd Step: Did qualifying B leave takers?
 Make sure dead devisee left eligible takers.
th
o 4 Step: What does the will say?
 Does will include survivorship language which overrides antilapse statute?
• EXAMPLE
o T dies leaving everything (residuary) to children A and B, but B predeceases T and has a
child C.
o Common Law: No Residue of Residue: B’s share lapses  intestacy  half of lapsed share
to each of both A and C  End Result = A gets 3/4, C gets 1/4.
o Common Law WITHOUT a “no residue of residue rule/UPC 2-604(b): A gets 100%, C gets
nothing.
o Antilapse Statute Jurisdiction: C takes B’s share so A and C split T’s estate 50/50.
• UPC 2-605: Antilapse; Deceased Devisee; Class Gifts
o If devisee who is a grandparent or a lineal descendant of a grandparent (2nd line of collaterals)
of the T is dead at time of execution of will, fails to survive T, or is treated as if he
predeceased T, the issue of the deceased devisee who survive T by 120 hours take in place of
deceased devisee and if they are all of the same degree of kinship to devisee they take
equally, but if of unequal degree then those of more remote degree take by representation.
o Stepchildren and step-devisees apply.
o One who would have been a devisee under a class gift if he had survived the T is treated as a
devisee for purposes of this section whether his death occurred before or after the execution
of the will.

Ruotolo v. Tietjen (MINORITY RULE: B/c antilapse statutes are remedial, they are to be given very
liberal construction and in order for a T to avoid antilapse statute, he must unequivocally express that
intent or provide an alternate bequest; The words “if she survives me” alone are not enough to negate
antilapse function)
• T executed will leaving 1/2 of residue to his step-daughter “Hazel Brennan if she survives me” and
Hazel died 17 days before T died.
• Antilapse Statute held: “when a devisee, being a…stepchild of T dies before him, and no provision
has been made in the will for such contingency, the issue of the devisee shall take devisee’s share.”
• T’s daughter sought to take stepdaughter’s share under the statute.
• TC held that T’s use of the term “if she survives me” provided for the contingency that
 stepdaughter might not survive him thus precluding the antilapse statute.
Issue
• Does the antilapse statute apply despite the “if she survives me” language? YES.
Holding
• Reversed; The antilapse statute should apply and stepdaughter’s descendant takes the share.
• Antilapse statute is remedial in nature and thus shall receive a very liberal construction.
• The words “if she survives me” alone are not enough to constitute a “provision” in the will for a
contingency of the death of the devisee which would be required in order to negate the antilapse
function.
• In order for a T to avoid application of the antilapse statute, he must unequivocally express that
intent or provide an alternate bequest.
• REASON: Court says the “if she survives me” language is BOILER PLATE, thrown in by the
lawyer w/o T actually understanding the implications.
Notes
• MAJORITY RULE (IMPORTANT!): words of survivorship DO demonstrate sufficient intent to
avoid antilapse statute.
• But, UPC 2-603(b)(3) AND REST 5.5 is in line w/ the minority and this case.
• In this case, to avoid the antilapse statute, T should have assigned a “gift-over” or named an
alternate taker.

CLASS GIFTS
• What is a class?
o Central question is whether T was “group-minded.”
o Was there a class label? (i.e. children, employees, etc.)
o Gift to beneficiaries who form a natural class but are described by their individual names may
be deemed a class if court finds that to be intent of T after admitting EXTRINSIC
EVIDENCE.
• REST 3rd Prop. 13.1 & 13.2: Class Gifts
o If disposition identifies beneficiaries only by group label, it is a class gift unless language or
circumstances indicate contrary intent.
o If disposition identifies beneficiaries by individual names only, there is NO class gift.
 But, EE would probably be admitted.
o If disposition identifies beneficiaries by group label AND either by name or number of
beneficiaries who then fit the group label, disposition is presumed NOT to create a class gift,
but the presumption is rebutted if language or circumstances indicate T intended a class gift.
 Ex. = Dawson v. Yucus (both labels = no class gift)
• Almost all states apply antilapse statutes to class gifts, as does UPC 2-605 and REST 5.5.
o Reason: average T would want descendants of devisee to inherit rather than the remaining
class members just splitting bigger share.
o Class must be in the scope of the antilapse statute (Grandparents’ descendants for UPC, etc).
• PROBLEM 10 ON PAGE 379…
o T’s husband and Sister C die…T executes a will “Blackacre to my sisters, residue to stepson
S”…Sister A dies…T dies…
 B takes 1/3 share, A’s children take 1/3, C’s children take 1/3…
 • In a minority of states, C’s children do not share because C was dead at
the time the will was executed (making that part void), and Blackacre
goes ½ to B and ½ to A’s children
• CLASS EXAMPLE: “I give BA to my brothers and sisters”…
 Giving to brothers and his heirs is fee simple absolute
 Who of my brothers and sister take an interest?
 If any predeceases and leave a descendant, does the share drop down?
 What is a better way to intend a class gift?
• I give BA to all of my brothers and sisters who survive me in equal
shares or all to the remainder and if there is no surviving brother or
sister of mine, then to UM…
o “I give BA to my brothers, John, Joe, and Jack in equal shares”…
o Determining which language creates a class gift and which doesn’t is confusing so…
 Class gift: identified by group label and intended to take as a group; membership in the
group is not static and is subject to increases/decreases and there is a fractional division

Dawson v. Yucus (The language of a devise, naming 2 individual persons, does not come w/i the
designation of a class but is to the individuals distributively)
• T devised his 1/5 interest in farm land as follows: 1/2 to nephew Wilson and 1/2 to nephew Burtle.
• After will was admitted, Wilson filed suit to construe the will alleging that the devise was a class
gift, that Burtle died after will execution but predeceased T, and that he, as the survivor of the
class, was entitled to the entire 1/5 of the farm land.
• After complaint was filed, Wilson conveyed the interest he allegedly received as survivor of the
class to Burtle’s 2 children who were substituted as Ps.
• Residuary devisees (Ds) denied that the clause referred to a class and the farm land lapsed and
passed to the residuary.
• TC found Burtle’s death created a latent ambiguity and admitted extrinsic evidence of T’s intent.
• TC held that the clause did not create a class gift, gift to Burtle lapsed and passed to the residuary.
Issue
• Does a bequest to 2 named individuals who are both nephews of T constitute a class gift? NO.
Holding
• Affirmed; Clause 2 was NOT a class gift, so Burtle’s gift lapsed and passed to the residuary.
• The shares in no way depend on the number who survive the T.
• Nothing in will indicates that T intended to form a class or survivorship gift.
• T created a survivorship gift elsewhere in her will which shows that she knew how to make one if
she wanted one.
Notes
• The late husband’s nieces were NOT w/i the antilapse statute under the applicable law.
• Gene’s descendants didn’t take because Illinois law didn’t include in the anti-lapse statute a late
spouses’ descendants and thus, Gene’s children were outside the scope of the statute

CHANGES IN PROPERTY AFTER EXECUTION OF WILL

(Stale Will Problem)

1) ADEMPTION BY EXTINCTION
• Def: extinction of a specific devise w/ no compensation to devisee if the gift is no longer in T’s
estate at time of death.
o Ex) If T devises blackacre to devisee then sells it before death, blackacre is adeemed (meaning
the gift fails) and devisee has no claim to whatever the proceeds were used to purchase.
o Only applies to Specific Devises!
• COMMON LAW
o Identity Theory of Ademption: traditional theory where if specific devised item is not in T’s
estate at death, gift is adeemed (or extinguished).
 Only looks at identity of the property of the specific devise.
 This test has been abandoned or substantially altered by UPC 2-606 and REST 5.2c.
• MODERN LAW
o Intent Theory of Ademption: modern theory where beneficiary can get cash
value/replacement for a devised gift that is no longer in T’s estate if he can prove that is what
T would have wanted (REST 5.2c).
 Ex) T devises blackacre to X then sells it to buy whiteacre then dies, X can inherit
whiteacre if he proves T would have intended him to inherit it.
o UPC 2-606 (destroys identity test w/ many exceptions)
 UPC 2-606(a): Specific devisee has right to specific devise AND:
• (1) Any balance of purchase price if the property in the specific devise is SOLD.
• (2) Any amount of condemnation award for a TAKING of property unpaid at
death.
• (3) Any proceeds unpaid at death for INSURANCE or other recovery for injury to
property.
• (4) Property owned by T at death and acquired as a result of FORECLOSURE.
• (5) Any property owned by T at death acquired as a REPLACEMENT for
specifically devised property.
• (6) If not covered by 1-5, a pecuniary (monetary) devise equal to the value of the
gift of specific devise MISSING from the estate as of its date of disposition
ONLY if it is established that ademption would be inconsistent w/ T’s intent.
o Burden on party opposing ademption!
o (6) Is heavily criticized for increasing litigation and changing meaning in a
bequest from “my ring” to “my ring or its equivalent value.”
 This demonstrates struggle b/t desire for bright lines and T’s intent.
• Ademption only applies to specific devises, not general, demonstrative, or residuary devises.
o General Devise: T devises $100k and if T doesn’t have $100k at death other property must be
sold to satisfy it.

In re Estate of Anton (Shift to “modified intention theory” (intent test): A gift is not adeemed by
extinction where a T does not have capacity or opportunity to change will during or after the sale of the
specifically devised property which was sold for her care; Where property which has been specifically
devised is removed from estate to support the T, devisee of those specific devises is entitled to
proceeds which have not been expended for T’s care)
• T executed will giving 1/2 interest in duplex to stepdaughter and 1/2 to son, remainder of estate to
son and to daughter Nancy.
• Later, T was hit by car and executed a durable power-of-attorney to Nancy for her financial affairs.
• T and Nancy discussed selling the duplex to pay for her care but then T’s nurses told Nancy not to
 talk about it w/ T any further b/c it would exacerbate her condition.
• By 2003, all that was left in T’s estate was the duplex and T’s expenses were high so Nancy put the
duplex up for sale but Robert told her she couldn’t sell it b/c of the terms in the will.
• Nancy started selling off T’s assets to pay for her care and there is no evidence that T knew that the
duplex would be sold.
• Attorney told Nancy she has the power to sell the house but also told her that T’s husband’s trust
principal can also be accessed to pay for her well-being.
• Nancy contacted the trustee at the bank who told her that all of T’s assets should be expended first.
• Nancy then sold the duplex, net proceeds were $133k, after T’s death $104k was left.
• At time of sale, evidence of competence of T was thin as she had “periods of confusion” according
to nurses notes and 6 weeks after the sale T was is a state of advanced dementia.
• Gretchen seeks to recover $72k (half of proceeds upon sale) even though only $104 is left.
Issue
• Did the sale of the duplex cause cause ademption by extinction? NO.
Holding
• Gift was NOT adeemed by extinction b/c T did not have capacity or opportunity to change her will
upon the sale of the duplex.
• When T does not have capacity or opportunity to change testamentary disposition during or after
sale of a specifically devised item, the gift will NOT be adeemed by extinction.
• Court recognizes the shift from the strict “identity test” to the “intention test.”
• Each 1/2 devisee of the duplex gets only $52k b/c, under this court’s precedent, where specific
devises are removed from estate to support the T, devisee is only entitled to proceeds which have
not been expended for T’s care.
Notes
• Durable power-of-attorney was created to avoid common law result of revocation by incapacity of
principal.
• Executor’s options at time of T’s death:
o 1) Duplex was adeemed so send the $104k to the residue.
o 2) Split proceeds of duplex sale b/t the 2 duplex devisees.

2) STOCK SPLITS AND THE PROBLEM OF INCREASE

• When T devises 100 shares and the stock splits to 200 shares, traditional approach was to give
devisee only 100 if it was considered a specific devise.
• Modern courts award all 200 to devisee b/c old approach misconceives the nature of a stock split.
• Modern courts also award all stock dividends to devisee (UPC 2-605; REST 5.3).

3) ADEPMTION BY SATISFACTION OF GENERAL PECUNIARY BEQUESTS

• Doctrine of Satisfaction (ademption by satisfaction) (Common Law): Traditionally, when T
devised property to a devisee in a will (testamentary gift), then subsequently transferred that
property to that devisee while T is alive (intervivos gift), rebuttable presumption that living gift
satisfied (adeemed) the will devise.
o Applied to general pecuniary bequests instead of specific bequests.
 When devised gift of specific bequest is given to devisee during T’s life, treat it as
adeemed by extinction.
o Like doctrine of advancements from intestacy section.
o Ex) T devises $50k to S then gives him $30k during T’s life, rebuttable presumption that the
 living gift satisfies $30k of the will devise.
• UPC 2-609: does away w/ rebuttable presumption and requires (usually written) proof of T’s
intent to adeem by satisfaction, like the UPC does w/ advancement in intestacy.
o Therefore, this doctrine does not really exist anymore.

4) EXONERATION OF LIENS
• Common Law Doctrine of Exoneration of Liens: where T bequests specific real or personal
property that has a mortgage for which T is responsible/liable, it is presumed that devisee takes the
property free of the mortgage/lien which will be paid out by other parts of T’s estate (residue)
unless T expressly provides otherwise.
o Only applies in some jurisdictions.
• Modern UPC: Common law abatement presumption is reversed.
o Specific devise passes WITH any mortgage/lien unless proof otherwise exists.

5) ABATEMENT
• Testamentary shares must be reduced when estate has insufficient funds to pay debts and devisees
under the will.
• Like divvying up a limited pie among claimants like bankruptcy.
• Usual Order of Traditional Abatement:
o 1) Residuary devises abated first.
o 2) General devises (i.e. $10k to friend) abated (pro rata) second.
o 3) Specific and demonstrative devises abated third.
• If all gifts are specific devises, abate them all pro rata.
• UPC 3-902: if testamentary plan would be defeated by usual order of abatement, the shares of
distributees abate as may be necessary for T’s intent.
• Better drafting can avoid frustration of testamentary intent.
o We know residuary is abated 1st so do not leave your favorite heirs only a residuary.
• Bring in Extrinsic Evidence to show that the testamentary intent would be frustrated under
traditional abatement.

RESTRICTIONS ON DISPOSITION: PROTECTION

OF SPOUSE AND CHILDREN
• 2 Marital Property Systems:
o Separate Property: (common law)
 All property acquired is owned separately by H and W except what has been put in joint
ownership by agreement.
• Separate property acquired during marriage belongs to that person who earned the
property
 Most states give an ELECTIVE SHARE (usually 1/3) to non-wage-earning spouse
which is enforceable against all of deceased spouse’s property to protect against
disinheritance.
 If homemaker dies first, she has nothing to devise.
 o Community Property: (civil law)
 All acquisitions after marriage belong to both spouses in equal and undivided 1/2 shares
unless both spouses agree otherwise.
• Separate property brought into marriage stays separate.
• Commingled property becomes community property.
 At death of 1 spouse, the community dissolves and T can dispose of his/her half by
valid testamentary instrument; other spouse already has the other half.
 If homemaker dies first, she can dispose of her half of the community property by will.
 If predeceasing spouse dies intestate, his half interest in all property passes through
intestacy.

RIGHTS OF SURVIVING SPOUSE TO SUPPORT

• Social Security:
o Generally, a spouse at full retirement can draw her own full benefits, but if that amount
would be less than 1/2 of spouse’s full benefits, then she is entitled to an increase up to the
amount of 1/2 of her spouse’s benefit.
o If a worker dies, surviving spouse will then receive worker’s full monthly benefits or her own
full monthly benefits, whichever is greater.
o Workers have no power to transfer benefits to others.
o Divorced former spouse of the worker has a right to benefits if marriage lasted 10+ years.
o Problems:
 1) Most divorces occur before the 10 years so most divorcees don’t get benefits.
 2) Families in which 1 spouse makes $80k per year is in better position if worker dies
than a family where both spouses work for $40k per year.
• Ex) If Husbands in both described households both die, then one takes SS of $80k
and one can only take $40k, even though both families contributed the same to SS.
• Employee Pension Plans:
o Governed by ERISA which trumps inconsistent state law.
o ERISA requires that surviving spouse of an employee have survivorship rights if employee
predeceases spouse.
o Divorce does NOT revoke pension rights but subsequent remarriage does in fact revoke.
• Homestead:
o Homestead laws (aka probate homestead) secure the family home to surviving spouse and
minor children free of claims of the decedent’s creditors up to a certain amount.
o Some states require decedent to set up homestead declaration during life; other states allow
probate court to set property aside as homestead.
o Size of Exemption:
 Some states have a small homestead exemption amount which provides very little
protection.
 Other states give substantial exemptions or even an unconditional exemption from all
creditors.
 UPC 2-402 recommends an exemption amount of $22,500, subject to cost of living
adjustment formula in 1-109.
• Personal Property Set-Aside:
 o Exactly like homestead but for personal property instead of family home.
o UPC 2-403 sets limit at $15k exemption from creditors, subject to the cost of living formula
at 1-109.
o Can include furniture, clothing, car, farm animals.
• Family Allowance:
o Every state has statute authorizing probate court to award an allowance for
maintenance/support of surviving spouse (and dependent children) from funds of estate
during administration of estate.
o May be limited to fixed period (usually 1 year) or for entire period of will administration.
o Like homestead and property set-aside, this is in addition to whatever interests pass to
surviving spouse.
o UPC 2-404 allows for “reasonable allowance” which cannot continue beyond 1 year if the
estate is inadequate to pay creditors.
o UPC 2-405 authorizes the personal representative to determine the family allowance up to a
stated limit w/o court order but subject to judicial review.
o Maintenance is NOT allowed after the estate is closed.
• Dower and Curtesy:
o Dower:
 Common Law: widow had dower in all land of which her deceased husband had been
seised during marriage and that was inheritable by descendants of H and W.
 Dower entitles widow to a life-estate in 1/3 of her husband’s qualifying land.
 Dower attaches either upon marriage or purchase of the land, whichever comes later.
 If H sells property to which dower has attached, W retains a 1/3 interest in the property
at H’s death regarding if the purchaser was bona fide.
 Dower has been abolished by most states.
o Curtesy:
 Common Law: H had support interest in W’s land.
 Comparable to dower except (1) H did not acquire curtesy unless children were born of
the marriage, and (2) H was given a life estate in the entire parcel, not merely 1/3.
 Abolished in most states.

RIGHTS OF SURVIVING SPOUSE TO A SHARE OF DECEDENT’S

PROPERTY

1) Elective Share / Forced Share:

• All but one separate property states give surviving spouse a statutory share, typically 1/3.
• Allows surviving spouse to choose b/t taking under T’s will or renounce will and take the statutory
(elective) share.
• Look at the percentage: is the percentage fixed or progressive?
o UPC increases percentage the longer the marriage
o Most jurisdictions permit the full elective share, regardless of the length of the marries
• Percentage of what? Probate assets only?
• Reasoning:
o 1) Partnership Theory of Marriage: surviving spouse contributed to acquisition of wealth and
deserves a portion of it.
  Under PT, life estate is not enough and W deserves property in fee simple.
o 2) Support Theory of Marriage: surviving spouse needs the financial support of dead spouse.
 Under ST, life estate should be enough b/c all W needs is support during life.
NOTES
• What if it is not a H and W but is 2 sisters who live together for 75 years and create a single
economic unit in a single household?
o Should other sister be entitled to elective/forced share or social security benefits?
 The law draws a distinction and does not provide any rights for the sisters.
• Old 1990 UPC used to give sliding scale percentages to spouses based on length of marriage.

2) Same-sex Marriage and Domestic Partnership:

• The 6 states w/ gay marriage impose elective shares on the gays.
• Public opinion is shifting to allow more for the gays.

3) Incompetent Surviving Spouse

• Should executor of incompetent surviving spouse be allowed to take elective share on behalf of
surviving spouse?
o YES under PT; NO under ST if she does not need the elective share for her support.

In re Estate of Cross (The court may elect for an incompetent surviving spouse to take against T’s
will; Generally, probate court must ascertain what incompetent surviving spouse would have done had
she been competent to make the decision; See OH distinction below)
• T died leaving entire estate to son (D) and leaving nothing to surviving spouse (P).
• Surviving wife had Alzheimer’s, was incompetent, and lived in nursing home paid by Medicaid.
• Surviving wife could not elect to take forced share against the will due to her incompetency.
• Wife would receive $25,000 in spousal allowance and ½ of the net estate, which was
approximately $9,000
• Probate court appointed a commissioner who took forced share for wife against T’s will.
• Probate court allowed wife to take against will, son appealed, wife died while appeal was pending.
• COA reversed, finding that taking against will was not in wife’s best interest and not necessary b/c
Medicaid paid for her support; Administrator of wife’s estate appealed.
Issue
• Should a court-appointed commissioner be able to take an elective share against a T’s will on
behalf of an incompetent surviving spouse? YES.
Holding
• Reversed for wife; Court may permit administrator’s recommendation for incompetent surviving
spouse to take against dead spouse’s will even if all of her support is paid for by Medicaid.
• Under OH statute, court may elect for an incompetent surviving spouse to take against
spouse’s will ONLY if it finds it is necessary to provide adequate support for surviving
spouse after considering age, other available resources, future and present needs, and
physical and mental condition of surviving spouse.
o Legislature has moved away from just determining which option is more advantageous to
surviving spouse.
• Probate court must determine what surviving spouse would do for her financial benefit had she
been competent.
• Here, lower COA ignored Medicaid eligibility requirements: In order for surviving spouse here to
 remain eligible she must utilize all available income (including a potential elective share).
• Therefore, her nursing home and support would have ended had she not taken against the will.
Notes
• T was probably motivated not to leave wife the estate b/c he thought her care would be covered by
Medicaid so he wanted his assets away from her.
• Calculate this estate: Assume it’s worth $525,000: calculate how much wife would’ve taken under
intestacy and how much’s she would have taken under the Ohio statute
• OH Elective Share: $25K + ½ Remainder = $25K + ½(500K)= $25K + $250K = $275K
• UPC Elective Share (§2-202) – Assuming “augmented estate” = $525, marriage >15 years:
50% of 100% of augmented estate = ½($525K) = $262K
• UPC Intestate Share (§2-102(4)): $150K + ½ Remainder = $150K + ½ ($375K) = $150K +
$187K = $337K

4) Property Subject to the Elective Share

• Traditionally, 1/3 forced share meant 1/3 of estate, meaning T’s probate estate.
• However, w/ emergence of nonprobate modes of transfer, question arose as to applicability.
o Urice says nonprobate estate is included.
• Inter vivos trust becomes part of deceased spouse’s estate for elective share purposes only if…
o 1) Created during marriage (Sullivan)
o 2) Deceased spouse alone had general power of appointment (Sullivan), AND
o 3) Trust was created by the deceased spouse himself (Bongaards).

Sullivan v. Burkin (For this case only, the assets held in the inter vivos trust are NOT part of the
deceased spouse’s estate for purposes of the surviving spouse’s elective share; HOWEVER, from the
date of this opinion forward, inter vivos trusts SHALL be included in deceased spouse’s estate for
elective share purposes if created during marriage and deceased spouse alone had a general power of
appointment exercisable by deed or will)
• During his lifetime, T executed a trust where he transferred real estate to himself as sole trustee.
• Trust provided that the net income was payable to him during lifetime, that the trustee was
instructed to pay him whatever principal he might request, and he retained right to revoke anytime.
• On his death, successor trustee was directed to pay principal and income to George and Harold (D).
• T died while still trustee of the inter vivos trust, and he left a will stating he intentionally neglected
to make any provision for his estranged wife Mary (P).
• The (pour over) will left residue of estate to the successor trustee Burkin (D).
• Wife then filed a claim seeking declaration that the trust assets be considered part of the estate in
determining her elective share.
Holding
• Affirmed for successor trustee and beneficiaries (Ds); For this case only, inter vivos trust does
NOT become part of deceased spouse’s estate for elective share purposes even if deceased spouse
alone retained substantial rights and powers under the trust.
• Court adheres to Kerwin v. Donaghy, which denies surviving spouse of any claim to assets in any
valid inter vivos trust b/c that case had been followed for 40 years.
• HOWEVER, from the date of this opinion forward, inter vivos trusts SHALL be included in
deceased spouse’s estate for elective share purposes if created during marriage and deceased
spouse alone had a general power of appointment exercisable by deed or will.
Notes
• Court here changes law prospectively, not retroactively, out of respect for precedent and puts the
Trusts & Estates Bar and testators on notice of the change.
• Wife here can attack two ways:
• 1) Trust is testamentary interest executed without adherence to the Wills Act
formalities…
 Fully revocable funded inter vivos trust is valid and does not have to adhere to
the Wills Act formalities
• 2) Do the trust assets qualify as part of the “Estate of the deceased” for Mary’s elective
share?
 No because according to Kerwin, property that the husband conveyed during his
lifetime does not form part of his estate at death

Bongaards v. Millen (Inter vivos trust created by a 3rd party does NOT become part of decedent’s
estate for elective share purposes even if deceased spouse had a general power of appointment;
Sullivan (above) is limited to situations where the trust was created by deceased spouse during
marriage)
• Mother created trust for benefit of daughter, daughter had a general power of appointment meaning
she could have terminated trust and held it all for herself outright but she didn’t.
• 10 days before her death, daughter appointed trust remainder to her sister.
• Husband claims it should be part of his wife’s estate subject to his elective share b/c she essentially
had complete ownership rights.
Issue
• Does an inter vivos trust created by a 3rd party become part of decedent’s estate for elective share
purposes if deceased spouse has a general power of appointment (not answered in Sullivan)? NO.
Holding
• Trust is NOT part of predeceasing spouses estate and is NOT subject to elective share of husband.
• Sullivan rule of including inter vivos trusts in the deceased spouse’s estate for elective share
purposes only applies if the trust was created BY the deceased spouse during marriage.
• Here, the property in the trust was not originally the daughter’s property put into trust for purpose
of keeping it away from spouse.
Notes
• Do the facts in this case really differ from Sullivan w/ a different holding?
o Both decedents in the cases had complete ownership rights of the trust corpus.

5) Waiver in Prenups
• Can a spouse’s elective share be waived by agreement? YES.
o Prenups used to be void for public policy b/c it made divorce more simple and worked out
most difficult divorce issues easily.
o In some states, POSTnuptial agreements are more scrutinized or not enforceable at all b/c
going into a marriage one is not obligated to get married but once married there is fear/social
pressure of one spouse threatening divorce if POSTnuptial agreement is not signed.
• Separate Property States:
o ALL separate property states enforce waiver of spouse’s elective share in prenups.
o Most separate property states enforce waiver of spouse’s elective share agreed to during
marriage (postnuptial agreement).
  Postnuptial agreements are subject to closer scrutiny in some states.
• Community Property States:
o No need for elective share b/c each owns half no matter what.
• UPC 2-213 adopts the UPAA standard for prenuptial and postnuptial agreements: contestant must
prove (1) not voluntary, OR (2) unconscionable AND lack of fair/reasonable disclosure of other
party’s finances.
• UPC 2-213: Prenups and Wavier of Right to Elect and of Other Rights:
o A) Right to election of surviving spouse, right to homestead allowance, exempt property, and
family allowance may be waived before or after marriage by written K SIGNED by surviving
spouse.
o B) Waiver is NOT enforceable if surviving spouse proves that:
 1) Waiver was not voluntary; OR
 2) Waiver was unconscionable at time of execution AND, before execution, surviving
spouse:
• i) Was not provided fair/reasonable disclosure of decedent’s finances/property;
• ii) Did not voluntarily and expressly waive, in writing, right to disclosure, AND
• iii) Did not have, or could not reasonably have, adequate knowledge of decedent’s
finances (HUGE).
o C) An issue of unconscionability of a waiver is a matter of law for the court.
o D) Unless language to contrary, a waiver of “all rights” or equivalent language, in property or
estate waives ALL rights of elective share, homestead allowance, exempt property, and
family allowance.
• Reece v. Elliot on prenups:
o Prenup must be entered into freely, knowledgeably, and in good faith.
 Knowledgeably: means there was “full and fair disclosure of the nature, extent, and
value of the parties’ property or such disclosure was unnecessary b/c spouse had
independent knowledge of the same.”
• Full and Fair Disclosure: varies from case to case depending on:
o Sophistication of parties.
o Apparent fairness/unfairness of the agreement.
o Disclosure of clear idea of nature extent, value of other’s property although
every asset does not need to be revealed precisely.
• Constructive Knowledge: Fair and reasonable disclosure requirement might be
unnecessary when spouse is charged w/ constructive knowledge of other party’s
financial condition.
o In re Estate of Martin: constructive knowledge where W had access to H’s
financial records.
• Independent Counsel Requirement:
o Fact that spouse challenging prenup had independent counsel helps establish enforceability.
o Many states now require independent counsel to enforce prenup.
o UPAA does not require independent counsel but very relevant in determining voluntariness.

Reece v. Elliot (Presumption of Prenup Validity: in determining whether there was full disclosure of
financial condition for a premarital agreement, the fact that the valuation of one disclosed asset is not
listed or known to spouse is not fatal to the agreement when entered into freely, independent counsel
was consulted, and spouse did not investigate further)
• P, widow of T, filed declaratory judgment action against co-executors seeking declaration
regarding her rights (w/o enforcement) and seeking rescission of the antenuptial agreement based
on a lack of T’s full disclosure of his financial condition.
• The agreement lists some of T’s property and holds:
o Listed property will be stay separate to support their children of other marriages;
o Both parties relinquishing marital rights in property of the other’s;
o Each party waived right to dissent from the will regarding the listed property;
o Both parties consulted w/ private counsel;
o Full disclosure of assets has been made.
• Among T’s property was 1,687 shares of stock and value was not listed.
• P argues the agreement should be unenforceable b/c she did not enter into it w/ full knowledge of
T’s assets and she does not know what she would have done had she known the value of the stock.
• TC upheld agreement b/c it was obvious from the list of property that T was wealthy and exact
valuation was not necessary and wife could have investigated further if she desired.
• TC also mentioned that wife did not value her list of property thus admitting it was not important.
Issue
• Was there sufficient disclosure of financial condition even though the value of the stock was not
listed on the antenuptial agreement? YES.
Holding
• Affirmed for executors; P had full knowledge T was wealthy from his property list.
• P entered into agreement freely, did not investigate further, and admitted the value of stocks did not
matter b/c they would go to decedent’s children anyway.
• TN law requires prenuptial agreements to be entered into freely, knowledgeably, and in good faith.
o Knowledgeably: means there was “full and fair disclosure of the nature, extent, and value of
the parties’ property or such disclosure was unnecessary b/c spouse had independent
knowledge of the same.”
 Full and Fair Disclosure: varies from case to case depending on:
• Sophistication of parties.
• Apparent fairness/unfairness of the agreement.
• Disclosure of clear idea of nature extent, value of other’s property although every
asset does not need to be revealed precisely.
• Prenuptial agreements are generally favored by public policy and there is a presumption of validity.
Notes
• Court seems to apply a lower standard for “full and fair disclosure” than the case to which it cites.

SPOUSE OMITTED FROM PREMARITAL WILL

• Traditional Common Law: premarital will was revoked ENTIRELY on marriage or on marriage
followed by birth of issue.
o Still in force in some states.
o Revocation of an entire will is a legal trauma: undermines favorable aspects of will (i.e.
guardianship provisions, etc).
• MODERN RULE: majority of states have statute giving spouse omitted from premarital will a
spousal intestate share and leave the rest of the will in tact.
o Presumed Intent: corrects T’s probable mistake of failing to update.
 o These statutes state default rules that can be overcome by evidence that deceased spouse did
NOT mistakenly omit surviving spouse in the premarital will.
• UPC 2-301: Entitlement of Spouse/Premarital Will
o (A) If surviving spouse married T after T executed will, surviving spouse is entitled to
receive value of an intestate share had T died intestate of T’s estate that, if any, is neither
devised to a child of T who was born before T’s marriage and who is not a child of surviving
spouse nor devised to a descendant of such a child UNLESS:
 (1) It appears from will or other evidence that will was made in contemplation of
marriage to surviving spouse (contingency),
 (2) Will expresses intention that it should take effect notwithstanding any subsequent
marriage, OR
 (3) T provided for spouse by transfer outside the will and the intent that the transfer be
in lieu of will provisions is shown by T’s statements or is reasonably inferred from the
amount of the transfer or other evidence.
o (B) In satisfying the above mentioned share, devises made by will to T’s surviving spouse, if
any, are applied first and other devises abate as provided in 3-902.

In re Estate of Prestie (Under NV law, an amendment to a living trust which provides for a spouse is
NOT sufficient to rebut the presumption of revocation of a pre-marital will after marriage; Only 3
ways to rebut presumption: (1) a provision in the WILL providing for spouse, (2) a provision in the
will expressing intent not to provide for spouse, or (3) a marriage contract)
• T and W were married in 1987, divorced 2 years later, then T’s health worsened and he moved to
Las Vegas and W moved there as well but in a separate home.
• In 1994, T executed in CA a pour-over will and an inter vivos trust.
• The pour-over will devised the entire estate to the trust, w/ T’s son Scott being both trustee and
beneficiary, and W getting nothing.
• As T’s health worsened, W cared for him and moved in w/ him in 2000 to care for him.
• In 2001, T amended the inter vivos trust to grant W a life estate in his condo upon his death.
• A few weeks later, W and T were married again and T passed away 9 months later.
• W petitioned DC for a 1/2 succession share of T’s estate on grounds that the will was revoked as to
her by NV law after the 2nd marriage b/c the will contained no provision providing for her and no
provision expressing an intention to not provide for her.
• Probate commissioner held that will should be revoked b/c trust amendment had nothing to do w/
the will, DC confirmed.
• Son Scott appeals arguing that the amendment to the inter vivos trust granting property to W
rebutted the presumption of revocation of T’s will as to W.
Issue
• Does an amendment to an inter vivos trust which addresses a spouse before the marriage rebut the
presumption that a pre-marital will is revoked as to an unintentionally omitted spouse? NO
Holding
• Affirmed for wife; The amendment to the trust which addressed wife does not rebut the
presumption of revocation of pre-marital will after marriage.
• NV law only allows certain evidence in order to rebut this presumption: (1) a marriage contract, (2)
a provision providing for the spouse in the WILL, and (3) a provision in the will expressing intent
not to provide for the spouse.
• Here, none of the 3 types of admissible evidence was present and the trust provision was
inadmissible on this precise issue.
Notes
• Maria was omitted from the will but was NOT omitted from the estate plan.
• UPC 2-301(a)(3) might have precluded W’s victory here depending on evidence (see above).
• What would make this case go another way?
o A pour-over will has no effect but to transfer property to the trust where she is provided for,
therefore, we should look to the trust
o Try to say that the amendment to the trust was a marriage contract
o The amendment was erroneously referred to as a codicil, when he signed the codicil, he may
have been thinking he was amending his will

POUR-OVER WILL
• Def: a testamentary device wherein T creates an inter vivos trust naming X as trustee, then executes
a will devising residue of estate to X as trustee to hold under the terms of the trust.
• COMMON LAW
o Traditionally, this process was validated either under incorporation by reference by
identifying the previously existing trust which the property will be poured into, or under the
doctrine of acts of independent significance by referring to some act that has significance
apart from disposing of probate assets, namely, the revocable living trust (inter vivos trust).
• MODERN RULE
o UPC 2-511
• Specifically allows for pour-over testamentary scheme if the trust is identified in T’s
will and its terms are set forth in a written instrument other than a will.
• This written instrument can be created at any time, including after the will
(unlike in incorporation by reference).
• Devise is not invalid if the trust is amendable or revocable.
• Remember Sullivan and Bongaards regarding inter vivos trusts:
o These cases are only relevant for elective share purposes.
• W would get 30% of a pour over will but for all other purposes the pour over is
effective.

RIGHTS OF DESCENDANTS OMITTED FROM WILL

• Children/descendants have NO statutory protection against intentional disinheritance by a parent in
any states but LA.

PROTECTION FROM UNINTENTIONAL OMISSION

UPC 2-302
• If the testator had no child living when he or she executed the will, an omitted after-born or after-
adopted child receives a share of the estate equal to the value that 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
o Relies on the surviving parent providing for the omitted child

Gray v. Gray (Under AL law a child born after will is entitled to intestate share unless (1) will implies
omission was intentional, (2) entire estate went to other parent notwithstanding T had other children,
OR (3) child is provided for outside of the will and it is implied that transfer was in lieu of
testamentary provision)
• T executed will in 1981 while married to W and while he had 2 children from prior marriage,
Robert and Monica.
• T’s will left everything to W and nothing to his 2 children.
• In 1984, T and W gave birth to Jack and in 1989 they divorced.
• Divorce settlement included a provision creating a trust for Jack which states that 1/2 of all
inheritance T will get from his mother will be placed in trust for Jack.
• In 2004, T died w/o changing his will (which won’t take effect due to divorce under AL law).
• Executor petitioned probate court to probate the will.
• Jack petitioned probate court for an order entitling him to a share of T’s estate b/c under AL law:
“child born after will is entitled to intestate share unless (1) will implies omission was intentional,
(2) entire estate went to other parent of the omitted child notwithstanding T had other children, OR
(3) child is provided for outside of the will and it is implied that transfer was in lieu of testamentary
provision.”
• Executor argued Jack’s petition should be denied based on 2nd and 3rd statutory provisions above.
• Probate court granted Jack’s petition, executor appealed.
Holding
• Jack loses and only gets the trust; AL Code §43-8-91(a)(2&3) precludes Jack’s further inheritance.
• Statute is unambiguous.
• Lyons Dissent: Child was not born yet when T devised entire estate to mother so you cannot infer
T’s intent to favor mother over the omitted child; therefore, 43-8-91(a)(2) does not apply.

Pretermitted Statutes
• Missouri-type – usually is drawn to benefit children not named or provided for in the will. Hence,
it must appear from the will itself that the omission of a child or other heir was intentional.
Extrinsic evidence of intent is not admissible.
• Massachusetts-type – the child takes unless it appears that such omission was intentional and not
occasioned by any mistake. Extrinsic evidence is admitted to show the presence or absence of an
intent to disinherit.
• Some operate like UP
• C 2-302, protect only children born or adopted after execution of the will. Other statutes operate in
favor of children alive when the will was executed as well as afterborn children.

TRUSTS
GENERAL OVERVIEW
• Trust: an arrangement whereby a trustee manages property as a fiduciary for one or more
beneficiaries.
o It is an arrangement as to property that bifurcates legal title (held by the trustee) and equitable
title (held by the beneficiary)
o It is NOT a thing…it is a relationship
 You can’t sue a trust, can ONLY sue the trustsee
 o Fiduciary: duty of care and duty of loyalty to the beneficiary
• Trust provides managerial intermediation: trustee manages the property on behalf of the
beneficiary, thus the trust separates the benefits of ownership from the burdens of ownership
o Trustee holds legal title to trust property and can sell the property and replace it w/ property
the trustee thinks is more desirable.
o Beneficiary holds equitable title and is entitled to payments from the trust income and
sometimes from the trust corpus as well.
o REQUIREMENTS:
 Requires a beneficiary and corpus/property described w/ specificity.
• Need a beneficiary because without one you would have no one to enforce the
trust
• They are the only one with standing to sue the trustee for breach of fiduciary
duty
 Trust will not fail for want of a trustee: court will appoint trustee to preserve settlor’s
intent.
 Ex) OO for life, remainder to O  merger of equitable and legal title, trust fails b/c
no beneficiary/no effective bifurcation.
• Inter Vivos Trust: created during settlor’s life by declaration of trust or deed of trust.
o Deed of Trust: settlor transfers the property to be held in trust to a different person as trustee.
 Must be in writing.
o Declaration of Trust: settlor simply declares himself trustee of property for the benefit of
himself for his life w/ remainder to others.
 Does NOT have to be in writing unless it is real property.
o Unlike a gift in that no delivery or deed of gift is needed; only needs intent to hold in trust.
o Can be revocable or irrevocable.
• Testimentary Trust: created by will; always irrevocable.
• Bifurcation: central feature of a trust: trustee holds legal title & beneficiary has equitable interest.
• Parties:
o SETTLOR/GRANTOR
 Settlor may be a trustee or beneficiary, but he must owe equitable duties to someone
other than himself.
• Legal titles would merge if settlor was sole trustee and sole beneficiary.
• Valid Ex.) O  O as trustee to pay income to herself for life, then  A.
o TRUSTEE
 Can be 1+ persons, a corporation, the settlor, or a beneficiary.
 If no trustee is named, court appoints a trustee if settlor intended to create trust.
 If will names trustee who refuses to serve or dies and no successor is named in will,
court will appoint successor trustee.
 Trust will not fail for want of a trustee
• Exception (rarely invoked): if the settlor intended the trust to continue only as
long as the person designated as trustee continues to serve, the trust terminates
when the named person ceases to serve as trustee
 Trustee can sell the property and replace it w/ property the trustee thinks is more
desirable.
 Trustee must have duties to perform or else trust fails as “passive” or “dry” and
beneficiaries acquire legal title (rare).
  Creditor of trustee cannot reach trust property unless it is a creditor of the trustee as
trustee (trustee contracted w/ creditor for trust property itself).
 Trustee owes beneficiaries primary Fiduciary Duties of LOYALTY (to act solely
in best interest of beneficiary), PRUDENCE/CARE (i.e. to account/keep records),
and OBEDIENCE.
• Other fiduciary duties: impartiality, not to commingle, to inform/account.
 Trustee who breaches fiduciaries duties may be denied compensation, subjected to
personal liability, or removed as trustee.
 Creditors of trustee can NOT reach corpus.
 Exculpatory Clause for Breach of Duties:
• UTC 1008(b): if drafted by trustee, it is invalid as abuse of fiduciary relationship
unless trustee proves it is fair under the circumstances and it is adequately
communicated to settlor.
• Marsman v. Nasca: not favored but enforceable if conduct is not a product of
bad faith or reckless disregard for duties.
 Choosing trustee (personal friend/family vs. corporation (bank)) need to consider who
is best to carry out the following tasks:
• 1) Investment: tasks of monitoring the investments for continuing suitability,
investing new funds, and voting the shares
• 2) Administration: accounting, reporting and tax filing
• 3) Distribution: spray, sprinkle, invade, accumulate, terminate, etc.
• Can have co-trustees (corporation does investment and administration and
friend/family distributes)
 Trust protector: given specific powers, i.e. order distributions, replace trustee, etc.
 Directed trust: trustee is responsible for administration but must follow the directions
of a third party
 Private trust company: company formed specifically to serve as trustee of one or more
trusts created by a single family
o BENEFICIARY
 Trust MUST have 1 or more ascertainable beneficiaries (UTC 402(a)(3); REST 3rd
Trusts §44).
 Beneficiaries have claim against trustee for breach of trust or breach of fiduciary duty.
 If trustee wrongfully disposes of trust property, beneficiaries can recover the property
unless it was sold to a bona fide purchaser for value, in which case beneficiaries can
enforce the trust on the newly acquired property.
 Has equitable/beneficial title as opposed to a creditor who would only have a chose in
action.
• Trust Purposes: mainly managerial intermediation: to separate the benefits of ownership from
the burdens of ownership.
o Revocable Trusts as substitute for a will to avoid probate.
 O  O as trustee of property for benefit of O for life, then  O’s descendants.
o Testamentary Marital Trusts for federal tax deduction for property given to surviving
spouse.
 H  X as trustee to pay income to W for her life, then principal  H’s children.
• No estate taxes are payable at H’s death.
o Good if H didn’t want wife to have all money at his death.
 o Trusts for Incompetent Persons: incompetent person cannot manage his money.
o Trusts for Minors: Federal tax law allows $13k per year per donee gift tax-free, but minor
cannot manage the money so Father  X as trustee for benefit of child until child reaches 21
when child gets all principal, thereby allowing the $13k tax-free gifts for benefit of child
every year.
o Discretionary Trusts: grantor gives trustee absolute discretion to pay income or principal to
any class of persons.
 Good for lessening tax burden on family wealth by distributing income to family
members in lowest tax brackets, prevent creditors of beneficiary from reaching trust
property, and flexibility for unforeseeable circumstances.
 Important that settlor provides good guidelines b/c if too loose then beneficiary will
claim they are abused but if too stringent then no good either.

CREATION OF A TRUST
• INTENT of grantor to create a trust is sole question in its creation (UTC 402a2)(REST Trusts 13).
o The focus is function over form: no particular form of words is necessary to create a trust (not
even the words “trust” or “trustee”).
o A person unfamiliar w/ trust law may intend to create a trust.
• Words that Create Trust
o “Shall be maintained for”
o “Shall be held for the benefit of”

Lux v. Lux (There is no fixed formula as to when a testamentary disposition should be classified as an
outright gift or a trust; Depends on whether circumstances dictate that there was manifestation of intent
to create a trust; Lack of specific words “trust” or “trustee” is immaterial)
• Grandmother died and leaves a trust
• Litigation ensued over whether she devised certain property to her grandchildren outright or in trust
• Trust creates a class gift to her grandchildren
Holding
• Court concluded that the grandmother intended that her real estate be held in trust for the benefit of
her grandchildren

Jiminez v. Lee (The words “in trust” need not be used to create a trust so long as the transfer of
property is made w/ intent to vest ownership in a 3rd party; When trust is breached, P is entitled to
impose a constructive trust/equitable lien on any interest traceably funded by the corpus or if
untraceable trustee is personally liable for the accrued amount P would get had trustee not breached
fiduciary duties; If trustee claims that contributions were made to beneficiary for trust purposes, he
must prove intent to contribute to trust purposes in an accounting)
• P sues her father for an accounting b/c 2 gifts she received in trust as a minor were withheld.
• P’s grandmother bought P a $1K savings bond for her education in 1945.
• Bond was registered in the names of “D (P’s father) and/or P and/or P’s mother.”
• In 1956, one of D’s clients allegedly gave P another gift of $500 in trust.
• D cashed both gifts and invested the money in his own name but as custodian for P.
Holding
• D must give P accounting b/c gifts from the others to P were intended to be in trust.
• The words “in trust” are not essential to the creation of a trust.
• It is enough to create a trust that the transfer of property is made w/ the intent to vest
beneficial ownership in a 3rd person, which was the case here.
• Even D’s own testimony demonstrates the intent of the gift to be a trust.
• D violated his duty “to administer the trust solely in the interest of the beneficiary” (REST 2nd
Trusts §170).
• P is entitled to impose a constructive trust or equitable lien on the stock D bought w/ the corpus.
• The corpus is clearly traceable to the bank stock, but even if it weren’t D would still be personally
liable for that amount which would have accrued to P had there been no breach.
• D is entitled to subtract any money he contributed to P’s education but has duty to account as
trustee to identify contributions specifically and prove they were made for trust purposes.
Notes
• Trust was created and fiduciary duty arose when the father received the gifts from the settlors.
• When a trustee transfers trust property into a non-trust account, there is a breach of fiduciary duty
of LOYALTY b/c it is an act of self-dealing and thus not SOLELY in best interest of beneficiary.

PRECATORY LANGUAGE
• Language referring to a wish or advisory suggestion which does not have the force of a demand or
a request which under the law must be obeyed.
• All facts and circumstances must be considered in determining if precatory language indicating a
trust contains the necessary manifestation of intent to create a trust
• URICE: Courts go back and forth on precatory language.

Colton v. Colton (MAIN PRECATORY LANGUAGE CASE: All facts and circumstances must be
considered in determining if precatory language indicating a trust contains the necessary manifestation
of intent to create a trust)
• T devised entire estate to wife then wrote “I recommend to her the care and protection of my
mother and sister, and request her to make gifts for them as in her judgment will be best.”
• Court held that there was sufficient manifestation of intent to create a trust.

Hebrew University Association v. Nye

• P (HUA) obtained a judgment that it is the owner of the Yahuda library.
• Yahuda collected rare books and manuscripts w/ the help of his wife Ethel during his lifetime.
• Wife went to Israel and talked about giving HUA the books, showed intent to do so, and HUA
showed her a press release that confirms the gift and she signed off on it.
• Prior to any delivery of the books to Israel, wife told president of HUA that she would deliver the
books but told them not to unpack the books until she came back to inspect them.
• Wife died before the books were shipped to Israel.
Issue
• Did wife make a valid declaration of trust of the books which can save a gift that fails for lack of
delivery? NO.
• Was the lack of actual delivery fatal to the gift? NO.
Holding (SUPREME COURT OF CT 1961) (If a donor intends to make an inter vivos gift but fails
to complete the gift by effecting delivery of the gifted property, implying a declaration of trust will not
save the gift where there is NO indication that a trust was intended)
• Reversed and remanded; HUA loses b/c a declaration of trust is not a remedy for a gift that fails for
lack of delivery.
• Gift requires present intent to make gift, delivery, and acceptance.
o Delivery is required as an extension of the intent requirement.
Holding (SUPERIOR COURT ON REMAND) (Even though property that is subject of a gift is not
actually given away w/ actual delivery, the gift is valid by constructive/symbolic delivery so long as
the donor divests herself of ownership)
• There is a valid gift and HUA is the owner of the books.
• Although delivery is required for valid gift, there need not be actual delivery.
• Constructive/symbolic delivery is sufficient for the delivery requirement of a gift if there is clear
intent to give the property away and delivery is as nearly perfect as possible under the
circumstances.
• Court essentially does not allow formalism over substance.
Notes
• When have a donative transfer make sure that it was meant by the donor to be a gift (whereby
equitable and legal title are transferred to the recipient) or does that donor intend to transfer to the
beneficiary through a trust for the benefit of a third party

NECESSITY OF TRUST PROPERTY

• Trust cannot exist w/o trust property (aka “res”).
• Res can be 1 penny or any interest in property capable of being transferred. (REST 3rd Trusts §40).
• Court cannot provide trust corpus or trust beneficiaries but can provide that the trust will not fail
for lack of a trustee
• Acceptable Property: contingent remainders, leasehold interests, choses in action, royalties, life ins.
policies.

Unthank v. Rippstein (Declaration of trust requires clear expression of intent to create a trust and
must subject the person to hold the property to the STANDARD OF TRUSTEE)
• 3 days before he died, T (P) wrote a letter to D promising to pay her $200 the first week of each
month beginning in Sept. 1960 for 5 years “provided I live that long.”
• In margin of letter, P wrote that he had stricken out the words “provided I live that long” and wrote
“I hereby bind my estate to make the $200 monthly payments provided for on this page.”
• Letter was not written in anticipation of his death, but upon P’s death, D tried to probate the letter
as a holographic will.
• Court held letter was not a testamentary instrument, then D sued P’s estate.
• COA reversed and held that the letter created a trust under which P held his property he promised
in the letter in trust for D.
Issue
• May a promise to make payments on a monthly basis even after death be enforced as a trust? NO.
Holding
• P’s estate wins; No declaration of trust w/o clear expression of intent to create a trust.
• It is far from clear that P intended to subject himself and his estate to the STANDARD OF
TRUSTEE.
• The letter is nothing more than intention to make monthly gifts.
o A promise to give, w/o more, cannot constitute intent to make a trust.
Notes
• URICE:
 o Hates this case; Court should have held that this is a valid holographic codicil b/c P mentions
his “estate.”
 Why doesn’t “bind my estate” constitute testamentary estate?
o Court also should use symbolic delivery to validate the gift just like Hebrew University case.

RESULTING TRUST
• Def: an equitable reversionary interest.
o Arises where an express trust fails or makes an incomplete disposition.
 Ex) O to X in trust to pay income to A for life, remainder to A’s descendants but A
leaves no descendants, remainder to A’s descendants fails so X holds remainder on
resulting trust for O’s heirs or devisees (equitable reversionary interest).

Brainard v. Commissioner (Where there is no res (trust property) at the time of the declaration of
trust, the settlor must manifest new intent to create a trust when the res comes into being, and the
settlor is the sole owner of the property and responsible for its tax during the time period between the
coming into being of the res and the renewal of manifestation of intent to create the trust)
• In 1927, Brainard (P) declared before his wife and mother a trust of his expected profits from stock
trading during 1928 for the benefit of his wife, mother, and 2 minor children, ages 1 and 3.
• P “agreed to assume personally any losses resulting from the venture.”
• In 1928, P turned in stock under his own name and turned a profit.
• After deducting $10k as his trustee fee, which he declared as income on tax return, the remaining
profits were credited on P’s books to the benefit of the 4 beneficiaries who booked it on their tax
returns.
Issue
• Is a grantor of a trust which consists of property to be received in the future responsible for the
taxes on that property? YES.
Holding
• Trust did not arise until after the profits were credited on P’s books b/c there was no res at the time
of the declaration of trust.
o There was no trust res at the time the trust was made, so the trust was not valid until the res
came into existence
• Therefore, P was responsible for the tax of the res instead of the res being taxed at the lower
brackets for of the wife and mother.
• P had no property interest in stock profits at the time of the declaration of trust b/c there were not in
existence at that time.
• Profits became actual property when the stocks were sold at a profit in 1928.
• In circumstances where the res is not in existence at the time of a declaration of trust, a settlor must
renew manifestation of intent to create a trust when the property (stock) comes into being.
• Described trust property must be in existence for a valid declaration of trust.
Notes
• Here it was HUGE that the reason for P’s actions was a tax avoidance scheme.

Speelman v. Pascal (Gift of property to be acquired in the future is valid so long as donor has an
enforceable right to receive future property and there is a reasonable expectation that the future
property will be received, i.e. licensing agreement)
• Pascal (D), entered into an agreement w/ Shaw’s estate under which D was granted the exclusive
right to produce a musical play and film based on Shaw’s Pygmalion.
• Before his death, D wrote Speelman (P) a letter confirming a gift to her of 5% of his share of
profits from the musical play in England, 2% of musical play profits from the U.S. and 5% profits
from the movie all over the world for her service to D if and when the productions come into being.
• After D died, his estate was able to do the music and produced the play and film “My Fair Lady.”
Issue
• Does delivery of an assignment of right to receive future property complete a valid, inter vivos
gift? YES.
Holding
• P wins; the inter vivos gift of future property was valid.
• The letter from D to P did transfer an enforceable right to the designated percentages of profits.
• Even though there was no play or movie at the time of the gift, D owned exclusive rights to
produce them and could therefore grant to another an interest in the monies that would be received
from those productions.
• Key is whether there is a reasonable expectation that monies would be received in the future.
Notes
• Difference b/t this and Brainard is that here, D had a license (rights) to produce the productions.
o Therefore, the underlying asset (license) was in existence.
o In Brainard, the trust was oral and here it was in writing; also in Brainard all the witnesses in
the trust were interested parties
o In Brainard there was also a risk of loss and here there was no risk of loss
• Example: O orally declares to A: “I give you 5% of the profits of a musical play based upon
Shaw’s Pygmalion, if I produce it and if there are any profits…”
o Is this a trust? NO, because there is no INTENT and no DECLARATION of a trust
o Is this a gift? NO because there is no DELIVERY
o What is this? An unenforceable promise
• Example: O orally declares himself trustee for one year of all stocks he owns, with any profits
from stock trading to go to A
o This is a valid oral trust where the corpus was the stock that he owned and the profits went to
the beneficiaries
o There is an identifiable property interest that the court can enforce
• The letter to P is like Kuralt in that it seems to be future intent, not present intent, b/c D says “the
lawyer will write it up.”
• Field v. Mayor of NY: the promise of one who had done printing work for the City of NY but who
had no K to perform such work in the future to pay money to be received for any such future work
was held enforceable b/c there was a reasonable expectation that monies would be received.
• Farmers’ Loan & Trust Co. v. Winthrop: all that is necessary to establish a valid gift of a future
interest (such as royalties) is an intention that the donor divest himself of title and transfer the
interest immediately to donee.

TAXATION OF GRANTOR TRUSTS

• Grantor Trust: trust in which the income is taxable to the grantor b/c grantor has retained
substantial control and is deemed by Tax Code still to be the owner of of the trust assets.

NECESSITY OF TRUST BENEFICIARIES

• Trust MUST have 1 or more ascertainable beneficiaries (UTC 402(a)(3) ; REST 3rd Trusts §44).
• Exceptions:
o Charitable trust need not have ascertainable beneficiary.
o Beneficiaries of private (normal) trust may be unborn or unascertainable when trust is
created.
 But, 1+ beneficiary must be ascertainable at time trust takes effect.
o Honorary Trust
o Statutory Purpose Trust

Clark v. Campbell (A private trust for the benefit of an indefinite person or group (i.e. “friends”) is
invalid b/c there must be a beneficiary/class capable of coming into court and enforcing the gift; Result
will be a resulting trust)
• Decedent’s will created a trust under which all of his personal property (books, pictures, antiques,
rugs) was to be distributed to those of his FRIENDS that his trustees chose in their discretion.
• All remaining property was to be sold and proceeds added to the residue of the estate.
• Residuary legatees have brought this case, arguing that “friends” is an indefinite class
Issue
• Do “friends” qualify as an ascertainable group sufficient to sustain a private trust? NO.
Holding
• Trust/bequest fails b/c beneficiaries are indefinite.
• Under common law, a bequest to an indefinite person is invalid b/c there must be a
beneficiary/class capable of coming into court and enforcing the gift.
• This rule applies to private trusts but not charitable or public trusts b/c the attorney general, on
behalf of the public, may seek enforcement.
• Arguments that the will creates an outright gift to the trustees or that the trustees have a power of
appointment both fail b/c language of the will clearly is to create a private trust for friends’ benefit.
o Trustees do NOT have an option to give property away; they MUST give it away under will.
• Class of “friends” is unascertainable but classes of relatives (brothers, aunts, etc.) are ascertainable.
• Where a gift is impressed with a trust ineffectively declared and incapable of taking effect
because of the indefiniteness of those who have been chosen to take under the trust, the donee
will hold the property in trust for the next taker under the will, or for the next of kin by way
of a resulting trust
Notes
• UPC allows us to fix this problem…
o UPC allows incorporation by reference doctrine and what written memo?

POWERPOINT
• “I give X to A…”
o Gift of X in fee simple to A
• “I give X to A with the wish that A distribute X to my friends…”
o Gift of X in fee simple to A (with a precatory instruction that A may ignore)
o Precatory language: I wish, I hope…the trustee may ignore the instruction
• “I give X to my trustees to hold for the benefit of A…”
o Gift of X in trust for the benefit of A
o A has an equitable interest
• “I give X to A to distribute to my friends”
o Creation of a special power of appointment in A to distribute X to donor’s friends; A need not
 act. A has no duty to act; if A fails to appoint the property, X passes generally under the
residuary clause
o There’s no other language to show intent to create a trust
o A has a right to distribute it
o Created a power of appointment in A; special power to A to distribute to donor’s friends
 No enforceable duty
• “I give X to my executors to distribute among my friends…”
o This is a power coupled with a trust
 He’s given a power to distribute to the friends but since these people hold the property
under the trust rules, which require ascertainable beneficiaries

HONORARY TRUSTS AND STATUTORY PURPOSE TRUSTS

• Honorary Trust:
o Trust where there is no real acceptable beneficiary and trustee is not under a legal obligation
to carry out the settlor’s stated purpose, but if transferee declines, he is said to hold the
property upon a resulting trust and the property reverts to the settlor or settlor’s successors.
o Ex) In re Searight’s Estate
• Statutory Purpose Trust:
o Most states have statute that permits a trust for animals or other non-charitable purpose for a
given amount of time and for the perpetual care of a grave site.
o Many of the statutes are based on UTC 408-409 or UPC 2-907.
 Under UTC and UPC, court can reduce amount of the statutory trust if it exceeds amount
required for intended use.
 UTC and UPC fix problem of lack of beneficiary to enforce the trust by handling it the
same way as trusts for minors: person appointed by court or settlor will enforce.

In re Searight’s Estate (Honorary trust is enforceable where trustee applies trust corpus to purpose of
trust and trust does not violate the rule against perpetuities)
• Searight died in Nov. 1948, leaving $1k to be paid to Florence Hand at the rate of 75 cents per day
for the care of his dog until the dog died.
• If there was money remaining at dog’s death, it was paid to a list of persons, provided they
survived the dog.
• Ms. Hand accepted the dog when Searight died and was paid 75 cents until dog died in Oct. 1949
when she was struck by a car.
Issue
• Is a trust in favor of a non-human beneficiary enforceable? YES.
• Does this trust violate the rule against perpetuities? NO.
Holding
• The honorary trust here (for a non-human beneficiary) is upheld.
• If the trustee agrees to carry out the trust, it becomes a valid gift so long as the rule against
perpetuities is not violated.
• This is not against public policy so court carves out an exception.
o Seems to be a middle ground b/t definite and general beneficiary.
• This trust does not violate rule against perpetuities b/c it limits itself to the lifetime of the dog.
• Even if dog could live so long as to violate the rule against perpetuities, there is not enough money
in this particular trust to extend the trust long enough to violate the rule against perpetuities.
Notes
• Problem here is a dog cannot be a beneficiary b/c it is property and does not have standing in court.
• Changes in trust law to serve settlor’s wishes have been common over the years.
• This is not a charitable trust b/c here there is a definite beneficiary, instead of a general/public
beneficiary in a charitable trust.
• The court saves this trust by categorizing it as an honorary trust:
• Honorary trust: there is somebody willing to take on the responsibility of enforcing the trust on
behalf of a beneficiary
o Trusts for pets and trusts for memorial purposes (i.e. maintaining a tombstone, mausoleum,
etc.)
• Difference between this case and Unthank is here, there is $1,000 set aside in a segregated account
and
• Under the UPC, honorary trusts for pets are all recognized and virtually every jurisdiction by
statute permits a pet to be a beneficiary of a trust, and each of them have different rules
o It is NOT void ab initio under the UPC nor the UTC

NECESSITY OF A WRITTEN INSTRUMENT

• GENERAL PRINCIPLE
o Oral trust are usually valid unless it’s an oral trust over real property
• Oral inter vivos declaration of trust over personal property (not real property) is enforceable (REST
3rd trusts 20).
• However, Wills Act requires testamentary trust to be in writing.
• Statute of Frauds requires inter vivos trust of land/real property to be in writing.

In re Estate of Fournier (Although a trust need not be in writing, its creation must be established by
clear and convincing evidence under Maine law)
• In ’98 or ’99, decedent asked a couple of friends to hold $400k in cash at their home and to give it
to his sister, Faustina, when he died.
• Decedent explained that Faustina needed it more than his other Juanita.
• Decedent told Juanita and her daughter that his friends were holding money for him.
• Decedent died in 2005 and Faustina was appointed personal rep.
• After the death, Faustina and her son met privately w/ the couple holding the money and the
husband gave Faustina the money.
• Couple holding the money testify that decedent only wanted money to go to Faustina but Juanita
testifies that decedent told her the couple was holding the money for both sisters.
• Faustina petitioned for a declaratory judgment to establish that decedent created an inter vivos oral
trust for her benefit.
• Court held that decedent’s act of telling Juanita’s daughter about the money was evidence of intent
to have the money pass through his estate and no trust was created.
• Court denied petition and Faustina appeals.
Issue
• Must a trust be in writing if there is clear and convincing evidence of decedent’s intent to create it?
 NO.
Holding
• Reversed for Faustina; Decedent created an oral trust where couple was to give Faustina the money
upon his death.
• Overwhelming evidence suggests decedent intended for Faustina to take the money individually.
• Under ME law, although a trust need not be in writing, its creation must be established by clear and
convincing evidence.
• LESSON: Don’t do oral trust; put the friggin thing in writing.
Notes
• The evidentiary problems with oral trust are difficult and should never use them
• The UTC is explicitly in favor of allowing oral trust provided that there is clear and
convincing evidence to establish the terms of the trust

SECRET AND SEMI-SECRET TRUSTS

• Secret Trust: a trust made by will where its existence is not made public, thereby giving the
impression that the trust property is in fact an outright gift to its recipient, the secret trustee.
o Ex) A makes a gift in his will to B on the secret understanding b/t them that B will hold the
property on trust for C.
• Semi-secret Trust: where the will provides that the trustee is to hold the property in trust, but does
not specify the terms of the trust or the beneficiary.
o Ex) $50K to Ben to dispose of as I instructed.
• MAJORITY: Olliffe v. Wells precedent: Trust fails and a resulting trust is imposed for settlor’s
descendants.
• MINORITY: REST 3rd Trusts §18 / REST 3rd Restitution §46:
o Constructive Trust should be imposed in favor of the intended beneficiary in a secret or semi-
secret trust.

Olliffe v. Wells (Semi-secret trust is INVALID for lack of an ascertainable beneficiary; The trust fails,
extrinsic evidence can NOT be admitted to establish beneficiary, and there should be a RESULTING
TRUST (equitable reversionary interest) for settlor’s heirs at law)
• T died in 1877 leaving a will in which she gave her residuary estate to Reverend Wells (D) to
“distribute in the same manner as in his discretion shall appear best calculated to carry out the
wishes which I have expressed to him.” (SEMI-SECRET TRUST).
• D was named executor of the will.
• T’s heirs (P) sued challenging the bequest.
• At trial, D contended that decedent had orally expressed her wishes that he use the residuary estate
for charitable purposes, especially for the poor and aged under the care of St. Stephen’s Mission in
Boston, which D founded.
Issue
• Is a semi-secret trust valid? NO.
Holding
• Trust fails b/c it is too indefinite and a resulting trust shall be set up for descendants of T.
• Under plain language of will, D is required to distribute all of the property to some unknown class
of persons for some unknown purpose.
• Such a bequest substitutes the intent of decedent w/ that of the D and is therefore too indefinite.
Notes
• Problem is that you don’t know who beneficiary is.
• URICE hates that EE was not admitted here.
o Court did NOT allow extrinsic evidence and would rather have unjust enrichment of the heirs
than of the named trustee which is stupid.
• If decedent here really wanted the money to go to the mission, why didn’t she say so?
o Maybe she had a secret lover that trustee was to give the money to and she didn’t want family
to know.
• Application of UPC 2-503: clear and convincing evidence
• Resulting Trust: equitable reversionary interest for settlor’s heirs at law (MAJORITY/OLLIFFE).
• Constructive Trust: equitable remedy which prevents unjust enrichment (MINORITY/REST.).
• Semisecret trust:
o Desire to create trust appears on the face of will
o Terms are undisclosed
o Extrinsic evidence not needed to prevent unjust enrichment
o Devise is unenforceable
• Secret trust:
o Devise is absolute on the face of the will
o Extrinsic evidence necessary to prevent unjust enrichment
o Court will impose a construct trust on promisor

ORAL INTER VIVOS TRUSTS OF LAND

• Oral Trusts of Law for Benefit of 3rd Party:

o Where O conveys land to X upon oral trust to pay income to A for life and then land to B,
Statute of Frauds in almost all states prevents enforcement.
 But can X keep the land?
• Most decisions have permitted X to retain the land, BUT:
• Constructive Trust is imposed for the beneficiaries if transfer was wrongfully
obtained by fraud, duress, there was a confidential relationship b/t transferor and
transferee, or where transfer was made in anticipation of transferor’s death.
• Oral Trusts for Benefit of Transferor:
o Sometimes used to avoid creditors, taxes, probate.
o Often transferors rely on promise that transferee will reconvey.
o Hieble v. Hieble: (Where transferor of land transfers for her own benefit upon an oral promise
by transferee that he will reconvey, and there is a confidential relationship b/t the two, court
will impose a constructive trust on transferee for benefit of transferor)
 Mother transferred real property from herself alone to herself, her son, and her daughter
in JT to avoid probate b/c she might die of cancer.
 Son and daughter agreed to reconvey the land to her if she beat cancer.
 Mother sued when son refused to reconvey, and court ruled for her, imposing a
constructive trust on son due to the oral agreement and confidential relationship.
o Pappas v. Pappas: (In order for court to impose a constructive trust on transferee for not
reconveying land as he promised he would where a confidential relationship existed b/t the two,
the transferor seeking constructive trust must have “clean hands”)
  67 year old man married 23 year old woman and just before divorce, man transferred
land to his son in agreement he would transfer it back after divorce.
 At divorce, man testified he sold it to son for consideration.
 When son refused to reconvey land back to father, court would NOT impose a
constructive trust on son b/c he misrepresented land transaction to divorce court.

RIGHTS TO DISTRIBUTIONS FROM THE TRUST

• 2 Central Issues:
o 1) When can a named beneficiary demand distributions of trust from trustee?
o 2) When can a named beneficiary’s creditor demand distributions of trust from trustee?

RIGHTS OF THE BENEFICIARY TO DISTRIBUTIONS

• 2 Types of Trusts:
o 1) Mandatory Trust: sets forth distributions which must be made.
• Ex) OX to distribute all income to Y.
o 2) Discretionary Trust: gives trustee discretion as to distributions to beneficiaries.
• Here, settlor can postpone and delegate to the trustee the decisions of whom to make
distributions, in what amounts, and when.
• 3 Types:
• 1) Spray Trust: must distribute all income but trustee decides which
beneficiaries get it and in what amount.
• Ex) OX to distribute to A, B, and C in amounts trustee determines.
• 2) Sprinkle Trust: trustee may accumulate income and add it to principal.
• 3) Support Trust: must distribute for support and maintenance.
• Ex) “Reasonable amounts for health, education, support, etc.”
• Here, the discretionary trust has an ascertainable standard.

Marsman v. Nasca (Trustee has an AFFIRMATIVE DUTY to inquire as to beneficiary’s needs when
managing a support trust including other sources beneficiary has available to him)
• Marsman died and had attorney (D) as her trustee created by her will for her 2nd husband Cappy.
• The discretionary trust was for Cappy’s reasonable maintenance, comfort, and support.
• Trust provided that Cappy receive income from the trust and allowed trustee to pay principal if
needed in trustees discretion, and gave remainder of principal to daughter Sally.
• Trust also had exculpatory clause relieving attorney (D) of any liability except for his own willful
negligence or default.
• Marsman and Cappy purchased the Wellesley property to maintain horses.
• Cappy continued to live on the Wellesley property after Marsman died, lost his job, his standard of
living went down substantially, he remarried and he and new wife Margaret (P) took out a $4k
mortgage to pay expenses, D was aware of the transaction.
• Later, Cappy retained D to draft a will, and the next year Cappy told D he needed some funds and
D told him he could have it if the reasons were given to him in writing.
• D then gave Cappy $300, D never never investigated Cappy’s financial situation.
• Cappy became poor and in order to keep the Wellesley property, he made a deal w/ stepdaughter
Sally that if she took over mortgage she could have the Wellesley house when Cappy died.
• D did the paperwork transferring ownership in JT to Sally and her husband w/ life estate to Cappy.
• Cappy went to nursing home in 1983 while P continued to live at Wellesley, stepdaughter Sally
died soon after, Cappy died in 1987 leaving everything to P.
• Sally’s husband then served P w/ notice to vacate Wellesley.
• P argues that D breached fiduciary duties and had he not breached the duties, Cappy would not
have conveyed the house to Sally.
• Probate Court held D breached duty as trustee and ordered him to convey house back to P b/c had
D done his job and paid principal to Cappy, Cappy would not have conveyed house to Sally and P
would have gotten it.
• Court also ordered D to reimburse Sally’s husband for mortgage he and Sally paid in the deal from
the trust, and if there is not enough in it, then he is personally liable for the rest.
Issue
• Is a trustee of a support trust required to inquire as to the needs of the beneficiary? YES.
Holding
• Support trust where trustee has absolute discretion creates duties of prudence and reasonableness
which in turn requires trustee to inquire as to beneficiary’s financial condition.
• Reversed; Sally’s husband should NOT have to reconvey the house to P, and D is NOT personally
liable.
• Appropriate remedy is to impose a construct trust on the amounts that should have been paid to
Cappy had D fulfilled his duties and pay it to P.
• D is not liable b/c of the exculpatory clause which is not favored but enforceable if conduct is not a
product of bad faith or reckless disregard for duties.
• Reasoning: Sally and her husband were bona fide purchasers, had no notice of breach of trust, were
not unjustly enriched, and Sally and Cappy did not have a fiduciary relationship so they should not
have to reconvey house.
• Support trust created by T clearly required D as trustee to inquire as to beneficiary’s financial
situation, including other sources he had available to him.
• D argues that trust only allowed him to distribute funds to Cappy under extraordinary
circumstances but the language refutes this argument and sets an ascertainable standard to maintain
Cappy’s standard of living that he was accustomed to.
• Old Colony Trust: trustee who sent questionnaire to the beneficiaries of a trust to determine who
needed assistance but failed to make further inquiry violated trust duties.
• D argued he had to save funds for Cappy’s future needs, but this is not sufficient grounds to allow
standard of living to diminish when that is the purpose of the support trust.
Notes
• UTC 1008(b): exculpatory clause drafted by trustee is invalid as abuse of fiduciary relationship
unless trustee proves it is fair under the circumstances and it is adequately communicated to settlor.
o Here, D would have had burden to prove the exculpatory clause is valid.
• URICE: Cappy might have been embarrassed to ask for his wife’s trust fund.
• URICE: Sally and her husband might not be bona fide purchasers b/c they did not act w/o
knowledge of Cappy’s financial trouble and his access to the trust, the principal of which goes to
Sally if Cappy does not received it (very sneaky of Sally).

MANDATORY ARBITRATION CLAUSES

• Can settlor take away beneficiary’s right to go straight to court to sue trustee by inserting
mandatory arbitration clause?
 o Really comes down to whose property trust assets are considered to be.
• No consensus on mandatory arbitration clauses: courts are all over the map.
• McNeil v. McNeil: court struck down provision in trust holding that trustee’s actions are not
subject to review by any court.
o Court reasoned that a trust where trustee has no legally binding obligation on trustee defeats
trust purposes.

RIGHTS OF THE BENEFICIARY’S CREDITORS

DISCRETIONARY TRUSTS
• Can be pure discretionary trust (absolute discretion) or support trust (obligated to meet
beneficiary’s delineated needs).
o Discretionary support trust is a combination of the 2 (Marsman).
• TRADITIONAL LAW:
o Discretionary Trust/No Ascertainable Standard:
• Creditor has no recourse against beneficiary’s interest in the trust.
• However, creditor may get court order directing trustee to pay creditor before
beneficiary, which effectively cuts off income.
o Support Trust/Ascertainable Standard:
• Creditors cannot reach beneficiary’s interest unless creditor is a supplier of necessaries,
who may recover through the beneficiary’s right to support.
• Anyone that supplies necessaries to beneficiary could reach trust assets.
• However, children/spouses may get child support/alimony from support trust (REST
Trusts 157).
• MODERN LAW:
o No distinction b/t pure discretionary trusts, support trusts, or discretionary support trusts w/ or
w/o an ascertainable standard.
o REST 3rd Trusts 60: (unclear and screwed up): creditor of discretionary trust beneficiaries is
entitled to receive/attach any distributions trustee makes or is required to make, HOWEVER:
o UTC 504: subject to an exception for child support or alimony, creditor of discretionary trust
beneficiary can NOT compel a distribution even if the beneficiary could compel such
distribution (exact opposite).
• QUESTION ON PG. 613
o T to X in trust to be used for A’s comfortable support/maintenance. A is poor, X refuses to
distribute, general creditor sues X for breach of fiduciary duty.
• Traditional Law: creditor would lose b/c it is a general creditor; not a creditor
providing necessaries.
• UTC 504: same result.
• REST 3rd Trusts 60: unclear and screwed up.
• (Remember below that creditors of settlor whose claim cannot be settled out of probate assets can
reach assets held in a REVOCABLE trust where decedent had the powers to use the trust assets for
his own benefit at the time of his death).

SPENDTHRIFT TRUST
• Def: language added to a trust by settlor which seeks to limit what beneficiary can do w/ his trust
 interest, i.e. “Beneficiary cannot voluntarily or involuntarily alienate her interest.”
• Does 2 things: (1) Prevents beneficiary from alienating his interest in the trust and (2) prevents
creditors from reaching beneficiary’s interest.
• Creditors of the beneficiary generally can NOT reach the funds in a spendthrift trust.
• Essentially gives trustee full authority to make decisions as to how the trust funds may be spent for
the benefit of the beneficiary.
• Ex) OX in trust to pay income of A for life, thenA’s descendants; includes clause that A may
not transfer her interest in the trust and it may not be reached by creditors.
• Many states require “spendthrift” language to create spendthrift trust.
• Most issues involve whether exceptions should be made for certain creditors: tort victims, spouses,
children, etc.
• UTC 502: Spendthrift Provision
o (A) Spendthrift provision is valid only if it restrains both voluntary and involuntary transfer
of a beneficiary’s interest.
o (B) A term in a trust providing that the interest is subject to “spendthrift trust,” or words of
similar import, suffices to restrain both voluntary and involuntary transfer of the beneficiary’s
interest.
o (C) Beneficiary may NOT transfer interest in a trust in violation of a valid spendthrift
provision and, subject to exceptions, a creditor of beneficiary may not reach the interest or a
distribution by the trustee before its receipt by the beneficiary.
• UTC 503: Exceptions to Spendthrift Provision
o (B) Spendthrift provision is unenforceable against:
 1) Child, spouse, former spouse who has judgment for support or maintenance.
 2) Judgment creditor who has provided services for the protection of a beneficiary’s
interest in the trust (lawyers), and
 3) Claim of this state or U.S. to the extent a statute of this state or Fed. law so applies.
o (C) These claimants immune to spendthrift clause may get a court order attaching present or
future distributions for benefit of the beneficiary.
• Valid in all jurisdictions but act in different ways nationally.

Scheffel v. Krueger (A judgment creditor can NOT attach a judgment debtor’s interest in a spendthrift
trust)
• Krueger (D) was beneficiary of a valid spendthrift trust set up by grandmother.
• D was sentenced to prison for the sexual abuse of Scheffel’s (P) minor son.
• P brought a civil action against D and obtained a default judgment against him.
• P tried to attack D’s interest in the trust but TC held that spendthrift clause precludes her claim.
Issue
• May a judgment creditor attach a judgment debtor’s interest in a spendthrift trust? NO.
Holding
• NH statute authorizing spendthrift trusts creates an absolute prohibition against attaching the assets
in those trusts.
o 2 Exceptions to NH statute:
 1) When settlor is also the beneficiary and trust is not a special needs trust.
 2) Trust is created w/ funds by a fraudulent conveyance.
• The trust met all requirements for spendthrift trust so it cannot be used to satisfy the judgment.
• Although exceptions for tort claims exist, cases that have created such an exception have done so
 when the trusts are authorized by judicial decision, not by legislative action.
Notes
• P here should have a good public policy argument.
• Aren’t D’s legal expenses considered support or reasonable needs?
• P here was an involuntary creditor; She did not extend credit to D and this should make a big
difference.

Shelley v. Shelley (Income or corpus/principal in a spendthift trust is subject to claims of child support
and alimony only if the trust does not restrict the beneficiary’s right to receive it so that beneficiary had
an absolute property interest in the income; HOWEVER see UTC 503)
• T left residuary estate in valid spendthrift trust for son Grant w/ income paid to him for life
(nondiscretionary) and when he reaches age 30, trustee can distribute corpus in amounts that
trustee and other named persons deemed Grant capable of investing property.
• Trustee was also given discretion to distribute corpus to Grant or his children “in case of
emergency where unusual and extraordinary expenses are necessary” for their “support and care.”
• Grant married twice, divorced twice, left 2 children by each marriage.
• Both divorces required Grant to make child support payments and one required alimony.
• Grant disappeared and trustee bank filed interpleader in response to claims against trust.
Issue
• Does spendthrift provision bar claims of child support and alimony? NO.
Holding
• Income from trust was nondiscretionary (distribution was mandatory) so the spendthrift provision
does NOT apply the income.
o Therefore, the income was sujbect to the child support and alimony claims b/c the trust.
• Corpus/principal from spendthrift trust was NOT subject to claims of child support and alimony b/c
distribution of the corpus is w/i discretion of the trustee and Grant’s right to receive it.
• HOWEVER, the emergency provision names children as beneficiaries too, so the children could
receive payment directly from the trust principal/corpus as beneficiaries, not creditors.
Notes
• UTC 503 would render spendthrift clause unenforceable here even if beneficiary did not have
absolute rights over the income and corpus.
o Generally, alimony and child support claims CAN reach spendthrift trusts (UTC 503).

SELF-SETTLED ASSET PROTECTION TRUSTS

• Where the settlor and the beneficiary are the same person.
• MAJORITY: creditors CAN reach interest in self-settled asset protection trusts.
o These are ineffective in protecting assets from creditors.
o Demonstrates that there is protection from creditors available to those who inherit the money
(through spendthrift trust) but not those who earn the money.
• MINORITY: creditors can NOT reach interest in self-settled asset protection trusts.
o Some states are starting to allow this b/c state benefits by having the money in their bank.
o Only effective if the initial transfer was not fraudulent.
o Some states require trust to be irrevocable.

MODIFICATION AND TERMINATION OF TRUSTS

• An irrevocable trust can be modified or terminated if settlor and all beneficiaries consent.
o Does not matter if trustee objects or if there is a spendthrift provision.
• Main question arises when settlor is dead or does not consent to modification or termination:
TRADITIONAL LAW
• Equitable Deviation Doctrine: trustee may deviate from the administrative terms of a trust when
compliance would defeat or substantially impair the purposes of the trust on account of changed
circumstances not anticipated by the settlor (REST 2nd Trusts 167).
o Deviation must be necessary to accomplish the purpose; not merely more advantageous.
MAJORITY:
• UTC 412:
o A) Court may modify the administrative or dispositive terms of a trust or terminate the trust
if, due to circumstances not anticipated by settlor, modification or termination will further
the purpose of the trust.
• Lower burden that traditional law.
• Modification must be made according to settlor’s probable intent.
o B) Court may modify the administrative terms of a trust if continuation on its existing terms
would be impracticable or wasteful or impair the trust’s administration.
o C) Upon termination of trust under this section, trustee shall distribute the trust property in a
manner consistent w/ the purposes of the trust.
• REST 66:
o 1) Court may modify an administrative or distributive provision if, b/c of circumstances not
anticipated by settlor, modification will further the purposes of the trust.
• Lower burden than REST 2nd 167 where modification NOT allowed unless failure to
modify would substantially impair trust purposes.
o 2) If trustee knows of circumstances that justify judicial action under subsection 1 w/ respect
to an administrative provision, and of potential harm it could cause, trustee has
AFFIRMATIVE DUTY to petition court for modification.
• NOTES
o UTC and REST are similar except:
• REST does not mention termination; only UTC does.
• REST 2 seems to expand trustee’s fiduciary duty of care (“must bring petition…”).
• Settlor (not beneficiary) is controlling under both.
• CLAFLIN DOCTRINE: trust cannot be modified or terminated if doing so would frustrate a
material purpose of the trust.
o All about respecting settlor’s intent.
o Examples of a Material Purpose:
• Spendthrift trust (but NOT a material purpose according to UTC 411c and REST 3rd
Trusts 65 cmt. e).
• Where there is an age requirement for distribution.
• Discretionary Trust.
• Support Trust.
• 2 types of provisions in a trust:
o Administrative provisions and dispositive provisions.
• Court much more liberal in deviating from administrative provisions than dispositive.
• Modification vs. Reformation
 o Reformation is an equitable remedy for a mistake.
• Special Trustee:
o A trustee given particular authority; that of a trust protector.

In re Trust of Stuchell (Old REST provision providing Equitable Deviation Doctrine does not allow
for modification merely b/c the proposed change would be more advantageous to the beneficiary)
• T created a trust for certain immediate family members for life including Edna (P/last survivor of
life beneficiaries), remainder of principal to Edna’s children or their descendants per stirpes.
• Edna had 4 children, one of whom was 25 year old retard John who needs assistance to live.
• Edna (P) requested court to modify the trust which all other remaindermen agreed with.
• Under current terms, when Edna dies, John will get his share in bulk which will inhibit his ability
to qualify for public assistance but the proposed modification would put this in a further “special
needs trust.”
• P argues Equitable Deviation Doctrine of REST 167 (above).
Holding
• The court may permit the trustee to deviate from a term of the trust if owing to circumstances not
known to the settlor and not anticipated y him compliance would defeat or substantially impair the
accomplishment of the purposes of the trust
• Court points to Comment B of the REST 167 which holds that deviation will not be permitted
merely b/c it would be more advantageous to the beneficiary.
Notes
• Old English courts held that once the settlor dies, intent should be irrelevant b/c beneficiaries are
entitled to the interest in the trust.
• Court turns heavily to the Restatement here.
• What is a trust supposed to be if it’s not supposed to be beneficial for the beneficiary?
• Here they should have given a special power of appointment to John’s guardian so that they may
modify the trust
• Courts have become much more liberal in permitting trustees to deviate from administrative
directions in the trust, because of an unanticipated change of circumstances, than they have been in
permitting modification of distributive provisions.
• The Restatement and UTC adopt the modern view of equitable deviation as applicable to both
administrative and dispositive terms. They allow a deviation if it will further the purposes of the
trust.

COMPARE REST AND UTC: LOOK AT STANDARDS FOR PERMITTING

MODIFICATION
• REST: doesn’t require the material change provision of the UTC

KNOW WITH THE REST WHY IS IT THAT IN SUBPARA 2 THE DUTY ARISES ONLY
WITH RESPECT TO AN ADMINISTRATIVE PROVISION

LOOK AT PULITZER ON PAGE 644 AND THEN #7 (LANGBEIN’S HYPO W/ PULITZER)

ON PAGE 650
Pulitzer: Pulitzer’s will created a trust for the benefit of his descendants; Pulitzer bequeathed to the
trustees shares of stick in a corporation publishing the World newspapers and his will provided that the
sale f these shares was not authorized under any circumstance; after increased losses, the trustees
petition court to approve a sale of the shares
Holding: even though sale was prohibited by Pulitzer it had the power to authorize sale in
circumstance where the trust estate was in jeopardy and it approved the sale

Langbein: what if the settlor had written that he wanted the newspaper to keep going even if it was
failing? Court didn’t consider that in the case but should a settlor be allowed to make the trust’s terms
immutable, that is, opt out of the law of modification and termination

In re Riddell (Court applies REST 3rd Trusts 66, which is a lower standard than REST 2nd for allowing
modification of trust provisions, requiring only (1) circumstances unanticipated by the settlor, and (2) a
finding that modification would further the purpose of the trust)
• T left residue to in trust for benefit of wife, son Ralph, daughter-in-law, and grandchildren.
• T also created an additional trust (the Life Insurance Trust) for their benefit.
• Wife’s will left residue of her estate in trust for benefit of son Ralph, Ralph’s wife Beverly, and her
grandchildren.
• Trust contained provision where upon death of Ralph and Beverly, T and wife’s grandchildren
would receive the trust’s benefits until the age of 35 when the trusts would terminate and trustee
would distribute the principal to grandchildren.
• Ralph is currently the trustee; T and wife are both deceased.
• Ralph and Beverly have 2 children, Donald and Nancy, both over 35.
• Donald is a wealthy lawyer; Nancy is a bipolar schizo and cannot live independently.
• Ralph and Beverly are still alive and upon their death the trusts will terminate b/c Donald and
Nancy are over 35; Nancy will end up w/ half of $1.3 million.
• Trustee petitioned court to consolidate the trusts and modify to create a “special needs” trust on
Nancy’s behalf instead of giving her principal b/c upon distribution all her funds will be seized by
the state to pay her extraordinary bills or she will misuse it due to lack of judgment.
• TC granted motion to consolidate but denied motion to modify b/c it did not have the power to
modify the trust unless unanticipated events existed that were unknown to settlor that would result
in defeating the trust purpose.
• TC found that the trust purpose was “to provide education, support, maintenance, and medical care
to the beneficiaries” and modification would only permit the family to immunize itself financially
from reimbursing the state for Nancy’s medical bills.
• Relying on REST 2nd Trusts 167 comment B, TC held that it cannot modify merely b/c the change
would be more advantageous to the beneficiaries.
• Trustee argued under REST 3rd Trusts 412 that it is obvious from the “age of 35” provision that
settlors wished for them to develop responsibility before they received the principal and Nancy’s
illness would defeat the purpose.
• TC rejected this argument b/c the trust purpose included “medical needs” and the modification
would essentially block payment for those medical needs.
Holding
• Remanded to order equitable deviation (modification) consistent w/ settlor’s intent in light of
changed circumstances.
• Niemann v. Vaughn Community Church: REST 3rd Trusts is a lower standard to allow modification
than REST 2nd and gives TC more discretion; sets up a 2 prong test:
o Under REST 3rd, first the court must determine if there were unanticipated circumstances
since trust was created, then determine if modification would advance the trust purposes.
 Purpose of modification is to give effect to settlor’s intent had the change in
 circumstances been anticipated.
• It is clear that settlors would want a different result that Nancy’s mismanagement of funds and
state’s taking most funds.
• TC should not have been so concerned w/ trustee trying to shield Nancy from gov’t taking her
funds b/c in 1993 Congress permitted the creation of special needs trusts in order to allow disabled
persons to continue to receive government assistance for their medical care w/ the OBRA.
Notes
• Court here looks to the BROAD PURPOSE of the trust to further the trust purposes.
o There can be many peripheral purposes but look to the broad purpose.

CLAFLIN AND MATERIAL PURPOSE/TERMINATION

• Claflin Doctrine: if continuance of the trust w/o termination is necessary to carry out a material
purpose of the settlor, the beneficiaries cannot compel termination.
o But what constitutes a material purpose?
• Cases where termination is generally NOT allowed due to a remaining Material Purpose:
o Spendthrift trust (but NOT a material purpose according to UTC 411c and REST 3rd Trusts 65
cmt. e).
o Where there is an age requirement for distribution
o Discretionary Trust / Management of funds by a trustee (In re Estate of Brown)
o Support Trust

MODIFICATION/TERMINATION BY CONSENT OF BENEFICIARIES

• UTC 411: Modification/Termination By Consent

o B) Applies to noncharitable, irrevocable trusts:
• Trust may be terminated upon consent of all beneficiaries if court concludes that
continuance of the trust is NOT necessary to achieve any material purpose of the trust.
• Trust may be modified upon consent of all beneficiaries if court concludes that
modification is not inconsistent w/ a material purpose of the trust.
o C) Spendthrift provision is NOT presumed to be a material purpose of the trust.
o D) Upon termination under (b), trustee shall distribute the trust as agreed by beneficiaries.

• REST 65: Modification/Termination By Consent (COURT HAS DISCRETION)

o (1) Except as stated in (2), if all beneficiaries of irrevocable trust consent, they can compel
termination or modification of the trust.
o (2) Cannot compel termination/modification under (1) if it would be inconsistent w/ a
material purpose of the trust UNLESS the settlor consents or court determines reason for
modification/termination outweigh the material purpose.
• (Gives court discretion despite a remaining material purpose unlike REST 2nd).

In re Estate of Brown (HIGH BURDEN FOR TERMINATION: A trust may NOT be terminated
early even if all beneficiaries agree unless all material purposes of trust have been achieved;
Management of funds by a trustee is a material purpose)
• Brown created a trust where funds were to be used to educate his nephew’s children.
• Trust was to continue until the last child received an education or the trustee determines that the
 purpose of providing an education has been accomplished.
• After that, the trust income and principal in trustee’s disrection was to be used for care,
maintenance, and support of his nephew and nephew’s wife at the standard of living they were
accustomed to until they die.
• Upon nephew and wife’s death, trust was to terminate and should be distributed to nephew’s
children.
• Trustee complied w/ trust terms, all nephew’s kids were educated, then income to nephew and
wife.
• In 1983, nephew and wife petitioned court to terminate the trust, arguing that the only remaining
purpose of the trust was to provide for their support and the rest of the trust principal was required
to carry out that purpose.
• All remaindermen consented to the termination but Probate Court denied request.
Issue
• May a trust be terminated by the agreement of all beneficiaries? NO.
Holding
• Affirmed; Termination NOT allowed.
• Active trust may NOT be terminated if a material purpose remains to be accomplished, even if all
beneficiaries agree to termination.
• Here, termination is not possible b/c a material purpose of the trust has not been accomplished,
namely: to assure a life-long income for the nephew and his wife through management of the
funds by a trustee.
• Termination would defeat this purpose since nephew could mismanage funds.
• Trustee’s argument that there can be no termination b/c this is a support trust and a spendthrift trust
is w/o merit b/c the trust is neither.
Notes
• URICE’S CONCLUSION: Under Claflin, you can ALWAYS find a material purpose left to be
accomplished.
• Trustee here does NOT want this trust terminated b/c he wants to continue to collect trustee fees.
• The remaining material purpose was TRUST MANAGEMENT.
• Instead, nephew and wife could have assigned all rights to the trust to their children, then there
could be no remaining material purpose, then children could petition for termination.
o If the kids took off w/ the money, nephew and wife could sue for a Constructive Trust to
prevent unjust enrichment.
• If the trust here gave remainder to “descendants” instead of “all living children,” it would be
difficult or impossible to get consent of all beneficiaries.

TRUST SILENT OF WHETHER IT IS REVOCABLE

• MAJORITY: A trust that is silent on whether it is revocable or irrevocable is presumed to be
irrevocable.
• MINORITY: UTC 602(a): Presumption that trust is revocable if not clear.

PLANNING FOR INCAPACITY

INCAPACITY
• Principle causes of incapacity is drug/alcohol abuse and disease
• Can occur at ANY AGE
• Incapacitated person two areas of concern:
o Management of the property: durable powers of attorney, power of attorney, revocable
trusts
 Majority of states have adopted the uniform durable of power of attorney act
o Care of the person: living wills, durable power of attorney for health care, health proxies,
health advanced directives
 Disparities among the jurisdictions
 Issue of portability: if advising client in NH and provide client with durable power
of attorney for healthcare and a living will that meets all the statutory standards in
NH then what happens if that person gets into a car accident in Florida?

DURABLE POWER OF ATTORNEY

• Power of attorney: terminates when principle becomes incapacitated
• DURABLE POWER OF ATTORNEY: continues when principle becomes incapacitated
• Agency relationship where attorney-in-fact (agent) is given written authorization to act on behalf of
the principal throughout the incapacity of the principal until the principal dies.
• Authorized by UPC 5-501 to 5-505.
• MUST BE IN WRITTEN INSTRUMENT
• Unlike ordinary power of attorney which ends at incapacity.
• The principal, if competent, can terminate the durable power at any time.
• Attorney-in-fact owes principal fiduciary duties of loyalty, care, and obedience.
• Must be created by written instrument and in some states must be witnessed or notarized.
• 3 WAYS TO TERMINATE:
o 1) Revocation by a still-competent principal.
o 2) When principal dies.
o 3) When attorney-in-fact dies.
• Still not as flexible and ideal as a revocable trust for most clients.
• Significant potential for abuse of durable power-of-attorney relationship.
• PoA Bells:
o 1) What powers did the principle grant to the attorney?
 Powers are held to a strict construction: courts wary of reading into the broad
interpretation of the language
 Modern approach: INTENT-look at what the principle would have wanted or needed
o 2) What duties does the agent have to the principle?
 Duty of care
 Duty of loyalty
• Act in the best interest to the principle; avoid self-enrichment (self-gifting);
avoid conflicts of interest
 Duty of obedience
• Act consistently with the document that has given you the power

In re Estate of Kurrelmeyer (GIVES DURABLE PoA TONS OF LEVERAGE: It is not a per se

public policy violation for attorney-in-fact of a durable power of attorney to create a trust and name
herself as trustee but self-gifting is a breach of fiduciary duty of LOYALTY; Result will turn on if there
are benefits to the trust other than self-gifting)
• In 1996, T executed 2 durable general powers of attorney appointing wife and daughter as
attorneys-in-fact.
• In 2001, when T was no longer competent, wife executed the document “Louis Kurrelmeyer (T)
Living Trust” w/ wife and daughter as co-trustees.
• Daughter then transferred Clearwater property to herself and wife as co-trustees of the trust.
• T died testate soon after and wife was executor, will executed in 1980 gave wife the Clearwater
property for life w/ tax/upkeep responsibility, remainder to T’s children as JTWROS.
• However, the trust gives the wife more rights to the property than the will: under the trustee she
does not have to pay taxes which will come from trust principal and she can convey the house if
she wishes.
• Son objected to the exclusion of the Clearwater property from inventory created by wife.
• Children argued that the transfer of Clearwater property to trust was a breach of wife’s fiduciary
duty b/c it was self-dealing and violated the gift-giving proscription of the power of attorney.
• Superior Court granted SJ for children b/c power of attorney did not authorize creation of the trust.
• Son’s three main arguments: URICE LIKES THESE!
o 1) Martina did not have the power to create the trust…
 Court disagrees and says that he gave her a general power of authority so the Court is
going to construe that liberally and find that she did have the power
o * 2) PUBLIC POLICY (Urice likes this argument): creation of a trust is personal and is
non-delegable (it is a personal right)
 You cannot delegate the authority to make a will for you
• Doesn’t the UPC allow for someone else to sign your will? YES, only if it is
under that person’s direction and in their presence
o 3) Martina breached a fiduciary duty because she engaged in self-dealing
Issue
• Did the power of attorney give wife the right to create the trust? YES.
• Is the power to create a trust delegable to an attorney-in-fact in a durable PoA? YES.
• Did wife violate fiduciary duties by self-dealing? REMANDED TO DETERMINE
Holding
• Reversed for wife; remanded to determine if wife breached fiduciary duty of loyalty by self-gifting.
• Express language of the very broad durable power of attorney authorized the creation of a trust.
• Court describes why revocable trusts are very useful and therefore attorneys-in-fact should be able
to create them in many situations that do not involve offenses to public policy.
• Children failed to demonstrate why this trust is offensive to public policy.
• HOWEVER, remanded to determine if wife breached her fiduciary duty of loyalty b/c the durable
power of attorney specifically prohibits self-gifts and wife has not presented any benefits to T by
the creation of the trust.
Notes
• Three things to take from this case:
o 1) For durable power of attorney to be useful it has to be very broad because you can’t
anticipate the needs that you’re going to have when you’re incapacitated, but the RISKS of
doing that is that the broader the power the greater the possibility of abuse
o 2) Even once the court has determined that the agent had the power to do what she did, the
 inquiry doesn’t end…then go into the fiduciary duties of care, loyalty, and obedience to judge
whether the exercise of the powers met the fiduciary standards under the duties
o 3) Children by first marriage surviving second spouse!
• Isn’t it obvious from the will that all T wanted wife to have was a life estate?
• It is a breach of loyalty if trustee improves her financial position w/ trust decision.
• Court rejects doctrine of strict construction (b/c no express authority to create the trust) but instead
attempts to carry out the intent of the principal.
• The power to create a will is NOT delegable, but the power to create a trust here IS delegable.
o Why the difference?
 Trust provides all kinds of advantages that a will cannot provide.
• Ex) prudent management, helps safely conserve the estate for beneficiaries,
furthers the privacy of the principal b/c it is a private document.
o These legitimate benefits that a will does not offer, plus a lack of
countervailing interests makes the power to create a trust delegable.

DIRECTIVES REGARDING HEALTHCARE AND DISPOSITION OF BODY

Advance Directive: Living Wills, Health Care Proxies, and Hybrids

• USSC: constitutional right to make healthcare decisions including right to refuse treatment.
• Person may appoint an agent to state her wishes about terminating medical treatment.
o If these wishes are not clearly expressed, state may assert interest in favor of preserving life.
• 3 Types of Advance Directives:
o 1) Instructional Directives
 These specify how one wants to be treated in end-of-life situations or incompetence.
 Ex) Living will, Medical Directive
o 2) Proxy Directives
 These designate an agent to make healthcare decisions for patient.
 Ex) Healthcare proxy, durable power of attorney for health care
o 3) Hybrid/Combined Directives
 Incorporates both directives above: handles treatment instructions and agents.
• ABSENCE OF DIRECTIVE:
o Incompetent patient’s decisions are usually made by spouse or next of kin, subject to state’s
interest in preserving life.
o Many states have hierarchy for people making healthcare decisions for the incompetent.
o Uniform Healthcare Decisions Act:
 Hierarchy = 1) spouse unless separated, 2) adult child, 3) parent, 4) adult sibling.
• AGENT STANDARDS
o Substituted judgment standard: what the patient has chosen or would have chosen in that
situation
o Best interests standard: should do what’s in the best interest of the patient

IMPORTANT CASES

Quinlan: 1975; 21 year old woman who was in a vegetative state because of overdose of drugs;
parents wanted to keep the feeding tube in and hospital wanted to take it out; Supreme Court of Jersey
ruled in favor of parents and feeding tube was put back in and she lived for another 9 years until she
died

Cruzan: the hospital refused to remove the feeding tube for fear of suit; Cruzan had left no living will
as to what she would want them to do; trial court of Missouri said she had a fundamental right to refuse
medical treatment provided that individual has left clear and convincing evidence of that intent or
direct the withdrawal of life preserving machines; SC held that the decision to withhold life support
was clear and convincing evidence that showed that the act would be consistent with the choice; USSC
upheld clear and convincing standard

Bush v. Schiavo
• Schiavo suffered cardiac arrest and has been in a vegetative state from 1990 leading up to this case.
• She is fed and hydrated through tubes in a nursing home.
• 8 years after incapacity, husband petitioned the guardianship court to end her life support, which
Schiavo’s parents opposed.
• Guardianship court authorized the discontinuance of life support b/c TC found by clear and
convincing evidence that Schiavo would elect to end it if she were competent.
• Decision was upheld on appeal, feeding tube was removed in 2003, and 6 days later the FL
legislature passed a law authorizing governor of FL to stay the removal of nutrition and hydration
on facts that matched Schiavo’s case.
• Governor Bush immediately issued executive order to stay the continued withholding of Schiavo’s
feeding tubes, and the tubes were reinserted.
• Husband challenged constitutionality of the statute successfully and FL SC took appeal.
Holding
• Affirmed; Statute was unconstitutional both on its face and as applied as a SoP violation.
• The statute as applied resulted in an executive order that effectively reversed a properly rendered
final judgment and was an unconstitutional encroachment on the judiciary’s power.
• Statute is unconstitutional on its face as well b/c it delegates legislative power to the governor.
o The statute did not provide any standards for the governor’s decision in such cases.

DISPOSITION OF THE BODY

• COMMON LAW: deceased has no right to his dead body; only a right of possession of heirs to
determine disposition of the body.
• MODERN LAW: state statutes now are much more open to allowing deceased to direct how his
body will be disposed of.
o If a person dies by violence or suspicious circumstances, statutes in all states require autopsy
regardless of next of kin.

WILL SUBSTITUTES
• Will Substitute: legal arrangements that pass property at death w/o the necessity of probate or
compliance w/ the Wills Act.
• TWO MAIN ISSUES:
o 1) To what extent do we require that a will substitute be executed in compliance with the
 formalities of wills
o 2) To what extent do we use the subsidiary laws of wills (wills having to do with revocation,
rule of construction, divorce, etc.)
• UPC has liberalized the Wills Act formalities in part b/c MANY WILL SUBSTITUTES CARRY
OUT THE PURPOSES OF THE WILL FORMALITIES (kind of like substantial compliance).
• Langbein:
o Pure will substitutes: life insurance, pension accounts, joint accounts, revocable trusts
 No enforceable right in the beneficiary during lifetime
o Impure will substitutes: joint tenancies
 Do create a present interest in the beneficiary
o Will substitutes: tend to be asset-specific; avoid probate; and are not subject to the Wills Act
• 4 Main Will Substitutes:
o Revocable Trusts: primary will substitute used by wealthy people with access to attorneys
 Fully revocable at any time
o Life Insurance
o Pension Accounts
o Joint Accounts
• Significance of Non-testamentary Instruments:
o Asset-specific: each deals with a single type of property
o Property passes outside probate.
o Escapes requirements of Wills Act formality.
o No requirement of testamentary capacity.
 However, contractual capacity is required which is a higher standard.
o Personal representative NOT involved
o Reserve to the owner complete lifetime dominion, including the power to name and to change
beneficiaries until death
• The subsidiary laws of wills are generally applied to will substitutes today

JOINT TENANCIES

• Imperfect will substitute

o Joint tenancy creates a present interest in the tenant (it is not solely the determination of the
decedent as to who takes), whereas a life insurance beneficiary is determined by the
decedent
• Joint tenancy in land gives the joint tenants equal interests upon creation
o An imperfect will substitute because it is not revocable
• Joint tenant cannot deviser her share by will
• A creditor of a joint tenant generally must seize the joint tenant’s interest during the joint tenant’s
life

REVOCABLE TRUSTS

• Most flexible of all will substitutes b/c settlor drafts both dispositive and administrative terms
exactly to their liking.
• Easy to amend; doesn’t have to follow will formalities
o FLORIDA requires the amendment to be witnessed (but this is the minority)
• May be created by a 1) deed of trust, whereby the settlor transfers the property to be held in trust to
the trustee; 2) declaration of trust, where the settlor simply declares himself to be the trustee of
certain property for the benefit of himself during his life, with the remainder to pass to others at his
death
• DURING LIFE ADVANTAGES…
o Good for property management: a 3rd party trustee may be selected to manage a funded
revocable trust, with duties that run only to the settlor; useful for those who don’t want to
manage their own property)
o Good for protection: useful in keeping separate property that a husband or wife or both do not
want to be comingled with their other assets
• DURING LIFE DISADVANTAGES…
o Cost: have to fund the trust in order for it to be useful to you during the lifetime; retitling of
assets is a pain and costs money (have to retitle it from yourself to the XYZ trustee of the trust)
o Donors know about revocable trusts but don’t really know what they are
• AT DEATH ADVANTAGES
o Avoid probate
o If you have real property you don’t have to open them to probate if you have retitled that
property to the trustees (avoid ancillary probate)
o Avoid delays of the probate court; those who have interest in will receive their bequests more
quickly
o Avoid court oversight: so that if your revocable trust creates further trusts, those are deemed
not to be testamentary under the control of the court b/c the trust didn’t die, you did
o Privacy! Revocable trusts you can’t find in the public unless there has been a contest
o Choice of law: personal assets are governed by the law of domicile and the real property is
governed by the law in which it is (i.e. you live in FL and your property is NY)
• AT DEATH DISADVANTAGES
o Creditors: in probate a short-term statute of limitations is applicable to creditors but this does
NOT exist for revocable trusts so creditors could come after your assets whenever
o Uncertainty:
o Taxation: IRS will not give fully revocable trust its own SSN (it’s totally transparent); can
cause problems with what you put in the trust and what you report to the IRS; there is no tax
advantage
• MODERN APPROACH:
o UTC 603: Settlor’s Powers in a Revocable Trust
 A) While a trust is revocable (and settlor has capacity to revoke the trust), rights of the
beneficiary are subject to the control of, and the duties of the trustee are owed
exclusively to, the settlor.
• Basically, settlor of revocable trust controls every party’s rights.
• This chips away at the doctrine of merger.
 B) During the period the power may be exercised, the holder of a power of withdrawal
has the rights of a settlor of a revocable trust under this section to the extent of the
property subject to the power.

Farkas v. Williams (The retention by the settlor of a trust of the power to revoke, even when coupled
w/ the reservation of a life interest in the trust property, does NOT render a trust inoperative for want
of Wills Act formalities)
• Farkas died intestate and employed Williams (D) who was not related to him.
• On 4 occasions, Farkas purchased stock and after each purchase he executed written declarations of
trust naming himself trustee of the stock for Williams, but Farkas reserved for himself as settlor the
following powers: (1) right to all cash dividends during his life, (2) right to change beneficiaries or
revoke trust at any time, (3) upon sale of any of the trust property, the right to all the proceeds for
himself.
• After Farkas’ death, the stocks certificates were found along w/ some other securities in Williams’
name alone.
• Farkas’s intestate heirs contest the trusts to Williams b/c they did not comply w/ the wills
formalities.
• TC and COA hold that lack of compliance w/ formalities is fatal to trust and intestate takers win.
Issue
• 1) Did Williams acquire any interest in the stock upon the declarations of trust? YES.
• 2) Did Farkas retain such powers over the trust as to render the trusts attempted testamentary
dispositions b/c he essentially owned the trust property at death? NO.
Holding
• Reversed for Williams; The trust is valid.
• Issue 1) Williams became beneficiary and the transfer was vesting Williams w/ the rights to
enforce fiduciary duties.
o This interest is sufficient to determine that Williams did acquire a present interest.
o If there were no present interest, Williams would have a mere expectancy which would
essentially be a failed testamentary disposition for lack of Wills Act formalities.
• Issue 2) Farkas was vested w/ fiduciary duties upon declarations of trust so his retained powers
over the trust cannot be said to be so great as to create testamentary dispositions.
Notes
• Stands for the proposition that revocable inter vivos trusts are to be recognized as valid even if
they are executed w/o the requirements of the wills act formalities.
o Court saw that the intent of declaring the trusts was formality in its own right.
• But Farkas can revoke the trust the whole time so what is he really giving up?
• It is really a fiction that Farkas actually gave something up here.
o If UTC applied, under 603(a), Williams got NOTHING from the trusts.
• Doctrine of merger is essentially done away w/ on UTC 603(a).

Linthicum v. Rudi (Under UTC 603(a), beneficiaries of a revocable inter vivos trust do NOT have the
right to challenge amendments to the trust made by settlor)
• Settlor named brother-in-law and sister-in-law as beneficiaries and co-successor trustees to a trust.
• Settlor later allegedly became incompetent and amended the trust to name husband’s nephew as
sole beneficiary and sole successor trustee.
• Brother-in-law and sister-in-law challenged on grounds of undue influence.
• Nephew filed motion to dismiss b/c the brother and sister-in-law lacked standing to challenge
settlor’s amendments to a trust as beneficiaries of a revocable trust.
Holding
• Husband’s nephew wins; Beneficiaries to a revocable inter vivos trust do not have standing to
challenge an amendment made by a settlor.
• Beneficiaries’ interest in a revocable inter vivos trust are contingent at best.
o Complete opposite of Farkas.
• It was alleged that nephew exercised undue influence to get beneficiaries changed BUT under such
circumstances, UTC holds that the substitute beneficiaries do not have standing.
• Under NV law, only “interested persons” can challenge internal affairs of a non-testamentary trust
and neither petitioner here was an interested person (i.e. heir at law).
• Conclusion: a person who is substituted OUT as a beneficiary of a trust and is not an heir
(interested person under the NV law), he is finished and only the heirs would have standing.

POD CONTRACTS AND OTHER NON-PROBATE TRANSFERS

UPC 6-101: Non-probate Transfers on Death

• A provision for a non-probate transfer in an insurance policy, bond, mortgage, security, retirement
or benefit plan, pension plan, deed of gift, or instrument of similar nature is non-testamentary.
o Now no concern about “present interest” in will substitutes.
o John Langbein said the present interest test was a legal fiction which required courts to find
correct results for the wrong reasons.

In re Estate of Atkinson (POD accounts are inherently testamentary in nature (payable on death) and
will NOT be effective as will substitutes)
• The words “pay on death” are clearly testamentary dispositions and will NOT work as a will
substitute in avoiding probate.
• HOWEVER, UPC 6-101 seems to conflict w/ this.

Estate of Hillowitz (A K in a partnership agreement is a valid will substitute which does NOT need to
comply w/ the Wills Act formalities b/c of the implied complexity and scrutiny of such arrangements)
• A K in a partnership agreement is a valid will substitute even though not executed in compliance
w/ the will formalities.
• Partnership Ks are more complex and come w/ more scrutiny than a POD which is just a blank
form in a bank.
o This complexity and scrutiny would probably carry out the purposes of the Wills Act
formalities more effectively than POD accounts.

WILLS SUBSTITUTES AND THE SUBSIDIARY LAW OF WILLS

• REST 3d Wills 7.2:
o Although will substitutes need not comply w/ will formalities, they are subject to substantive
restrictions on testation and rules of construction.

In re Estate and Trust of Pilafas (A will last seen in the T’s possession that cannot be found after his
death is presumed revoked, HOWEVER when a settlor reserves a power to revoke his trust in a
particular manner, he can revoke it only in that manner)
• Pilafas executes a will and recvocable trust
• Pilafas amends trust
• Pilafas amends trust agreement and executes new will
• Pilafas dies; neither will nor trust agreement are found after search of his house and belongings
• Pilafas’ son petitions for adjudication of intestacy; trust beneficiaries object
Issue
• What do you do when a revocable trust cannot be found after settlor’s death?
• Is the will revoked?
• Is the trust revoked? NO (must be in writing in order to revoke)
Holding
• Presumption of destruction of will when it is not found does NOT apply to this revocable trust b/c a
trust is akin to a K and you must follow its terms.
o The trust in this case gave specific details as to how it shall be revoked and the court honored
this.

Cook v. Equitable Life Assurance Society (An attempt to change the beneficiary of a life insurance
K by will and in disregard of the methods prescribed under the K will be unsuccessful)
• Douglas named Doris as life insurance beneficiary
• Douglas and Doris divorce
• Douglas remarries Margaret and has a child with her
• Douglas makes a holographic will by which he leaves everything to Margaret and Daniel
• Douglas dies
Issue
• What is the effect of the holographic will to the life insurance police (does it transfer the
beneficiary designation from Doris to Margaret, even though he did not change it)
Holding
• A divorce does not terminate a life insurance policy in ex-spouse’s name.

State Street Bank and Trust Co. v. Reiser (Creditors of decedent whose claim cannot be settled out
of probate assets can reach assets held in a REVOCABLE trust where decedent had the powers to use
the trust assets for his own benefit at the time of his death)
• Wilfred A. Dunnebier creates inter vivos trust; conveys a capital stock trust; and executes a pour-
over will, leaving a residuary estate to trust
• State street bank makes an unsecured lack to Wilfred for $75,000
• Wilfred dies in an accident; his estate has insufficient assets to pay off the loan
Issue
• Whether Wilfred’s death broke the vital change
Holding
• Where a person places property in trust and reserves the right to amend and revoke, or to direct
disposition of principal and income, the settlor’s creditors may, following the settlor’s death, reach
in satisfaction the settlor’s debts to them, to the extent not satisfies by the settlor’s estate, those
assets owned by the trust over which the settlor had such control at the time of his death as would
have enabled the settlor to use the trust assets for his own benefit
• Even at the moment of Wilfred’s death, his contingent remainderment became vested
remainderment and the Bank is cut off but the court says that even though there was that moment
of death, we are not going to allow for unjust enrichment
• You can’t use a revocable inter vivos trust to place your assets beyond the reach of a creditor
• It is against public policy for a decedent to have his estate live on but not an estate w/ which to pay
his debts.
MULTIPLE PARTY BANK ACCOUNTS
• Issue: whether the account has been established merely for convenience but without creating a
JTWROS

Varela v. Bernachea (When a joint bank account is established with the funds of one person, a gift of
the funds is promised; This presumption may be rebutted only by clear and convincing evidence to the
contrary)
• Bernachea adds Varela as joint tenant with right of survivorship to CMA account
• Bernachea suffers a heart attack his daughters bar Varela access to hospital and apartment
• Varela withdraws $280,000 from CMA account
• Bernachea demands a return of the funds withdrawn by Varela; bank complies, Varela contests
Holding
• When a joint bank account is established with the funds of one person, a gift of the funds is
promised
• This presumption may be rebutted only by clear and convincing evidence to the contrary
• He never restricted her access to the account
Notes
• UPC: joint accounts belong to the parties during their joint life-times “in proportion to the net
contribution of each to the sums on deposit, unless there is clear and convincing evidence of a
different intent”
o Presumption in states: upon opening a joint account there is a present interest from one
contributor to the other
• Example: husband drops dead…opened a POD account before death…what recourse does the wife
have?
o POD account leaves everything to children
o Under agency theory, the children have been unjustly enriched and the husband has broken
his fiduciary duty to the wife so she should be allowed to retake that money through a
constructive trust
o Constructive trust: an equitable remedy

POUR-OVER WILL

• O sets up a revocable inter vivos trust naming X as trustee. O then executes a will devising the
residue of his estate to X, as trustee, to hold under the terms of the trust.
• The pour-over by will of probate assets into an inter vivos trust allows O to establish an inter vivos
trust that can serve as a single receptacle for all the settlor’s probate and nonprobate property
• If a donor creates a revocable trust but doesn’t get all of his/her property in there before death, you
still need a will or those assets will pass by intestacy
o Assets will be treated as intestate if had no will (court will control distribution) but if
had will the executor will control the distribution of the assets
• Two theories:
o Incorporation by reference: a will can incorporate by reference a document in existence
at the time the will is executed
o Independent significance: a will may dispose of property by referring to some act that
has significance apart from disposing of probate assets; trust instrument does not have
to be in existence when the will is executed but the trust must have the same assets in it
 before the time of the testator’s death
o DISTINGUISH OF BOTH…
 Independent significance requires that the inter vivos trust have some property
transferred to it during the life, which the trust disposes of
 Incorporation by reference requires that the trust instrument be in existence at
the time the will is executed

Clymer v. Mayo (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)
• Mayo executed a will in 1963 designating her husband as the primary beneficiary
• In 1964, she named her husband as the beneficiary of her B.U. group life insurance policy
• In 1973, she executed a new will and a new revocable trust
• Under the new will, a bulk of her estate was to pour over in to the new revocable trust
• In 1978, Mayo and husband divorced…she changed the beneficiary designation of her life
insurance to Marianne LaFrance, but left the trust as the beneficiary of her pension plans, and left
James as the principal beneficiary under the trust
• 1981 Mayo dies, leaving parents as her only heirs
Issue
• Was the trust valid? YES
• Whether Mass. Statute revoked James’ interest? YES
Holding
• Uniform Testamentary Additions to Trust Act (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
• Mass. Statute revokes an ex-spouse’s interests under the testator’s will
• The bequest to the intervivos trust was valid even though the trust was unfunded
• A divorced spouse should not take under a revocable trust executed in these circumstances
• Even unfunded revocable trusts under the UATA will be held valid;

Trusts and Estates Sample Essay Question:

• Unwed mother of child will make claim.
• Wife will claim statutory share (biggest issue).
o Elective share goes beyond probate the probate assets and onto the condo and trust.
• Wife might also claim undue influence by Chuck.
o A lot of evidentiary issues here.
• Manslaughter statute: wrongful conduct making Chuck’s will share invalid or imposition of
constructive trust.

Review Notes
• UPC 2-105 only goes beyond the grandparental line to avoid giving to laughing (distant) heirs.
• A Form Will must usually be signed and attested as any attested will.
• FL does not recognize holographic wills but allows a handwritten will that is signed by T and 2
witnessed.
• COMPARE:
 o Outright gift w/ precatory language (see will of Marilyn Monroe).
o Power of Appointment: “I give my tangible personal property to X to distribute to such of my
friends as X chooses”
 Valid if anyone can be ascertained as fitting the description.
o Power Coupled w/ Trust: “I give my TPP to X, my trustee/executor, to distribute to such of my
friends as X chooses.
 Not valid: X takes in fid capacity and the trust standard (rather than the power of
appointment standard) is applied: must have identifiable beneficiaries.

Powers of Appointment
• Donor: the person who creates the powers of appointment
• Donees: the person who holds the power
• Objects of the power: the persons in whose favor the power may be exercised
• When a power is exercised in favor of someone, that person becomes an appointee
• The person who eventually receives the property if the donee fails to exercise the power of
appointment are called takers in default
• The property subject to the power is the appointive property

General and Special (limited) powers

• General: unlimited power to appoint a property
o Federal estate tax: since that person can appoint the property to himself, it’s tantamount to
ownership and is included in the donee’s tax
• Special: objects are a smaller class

Intervivos and Testamentary

• Testamentary: can be exercised by the donee only through a will or other testamentary instrument
• Intervivos: may be exercised at any time during the donee’s lifetime

Exclusionary and Non-exclusionary

• Exclusionary: gives the donee power to exclude certain objects
• Non-exclusionary: everyone of the objects (people who could take) must receive something

Irwin Union Bank & Trust Co. v. Long

• Powers of appointment is not in a fiduciary capacity
o They are under no obligation to exercise it and cannot be forced to exercise it; nor can
anyone attack it if it has not been exercised

REST §19.4: presumes that a residuary clause does not exercise a power “unless the power in
question is a general power and the donor did not provide for takers in default or the gift-in default
clause is ineffective”

UPC §2-609: Power of Appointment

• In the absence of requirement that a power of appointment be exercised by a reference, or by an
express or specific reference, to the power, a general residuary clause in a will, or a will making a
general disposition of all of the testator’s property, expresses an intention to exercise a power of
appointment held by the testator only if
(i) The power is a general power and the creating instrument does not contain a gift if the
power is not exercised or
(ii) The testator’s will manifests an intention to include the property subject to the power
Notes:
• Both Rest. and UPC reason that the donor normally expects the gift-in-default clause to control in
the absence of clear and convincing evidence of the donee’s intent to appoint
• BUT if the donor didn’t provide for takers in default or the gift-in-default clause is ineffective, then
it seems more in accords with the donor’s probable intent for the donee’s residuary clause to be
treated as exercising the power

ANTILAPSE STATUTES (UPC 2-605 p. 365)

• Do antilapse statues apply to exercise power of appointment?
o Need to look if the objects (children/beneficiaries) are within the scope of the statute
o General rule is that it does not apply unless there’s a statute to the contrary like there is in
California