Trusts and Estates Outline

TRUSTS & ESTATES OUTLINE
(M. Robinson, Fall 2006) (DUKEMINIER, ET AL., WILLS, TRUSTS & ESTATES (7th ed. 2005))
INTRODUCTION TO ESTATE PLANNING...........................................................................................................8
I..................................................................POWER TO CONVEY PROPERTY AT DEATH: JUSTIFICATIONS AND LIMITS
....................................................................................................................................................................................8
A..................................................................................................................Theories of the right to inherit/convey
...............................................................................................................................................................................8
B.....................................................................................................................Justifications for the right to convey
...............................................................................................................................................................................8
C..............................................................................................................................The problem of the dead hand
...............................................................................................................................................................................8
II................................................................................................................PROBATE VERSUS NON-PROBATE ASSETS
....................................................................................................................................................................................9
A..............................................................................................................................Introduction to will substitutes
...............................................................................................................................................................................9
B..........................................................................................Life insurance, pension accounts, and bank accounts
...............................................................................................................................................................................9
C........................................................................................................................................Joint tenancies in realty
.............................................................................................................................................................................11
III...............................................................................................................................PROFESSIONAL RESPONSIBILITY
..................................................................................................................................................................................11
IV..................................................................................................................TRANSFER OF THE DECEDENTS ESTATE
..................................................................................................................................................................................11
A...........................................................................................................Obligations of the personal representative
.............................................................................................................................................................................11
B..............................................................................................................................................The probate process
.............................................................................................................................................................................12
INTESTACY...............................................................................................................................................................12
I............................................................................................................................................................BASIC SCHEME
..................................................................................................................................................................................12
A........................................................................................................................................Intestacy as default rule
.............................................................................................................................................................................12
B..........................................................................................UPC intestacy provisions (preference for the spouse)
.............................................................................................................................................................................13
C..................................................................................................................................The requirement of survival
.............................................................................................................................................................................13
D...........................................................................................................................................Shares of descendants
.............................................................................................................................................................................14
II..........................................................................................................................................TRANSFERS TO CHILDREN
..................................................................................................................................................................................15
A..........................................................................................................................................Meaning of \children\
.............................................................................................................................................................................15
B........................................................................................................................................................Advancements
.............................................................................................................................................................................16
C......................................................................................................Guardianship and conservatorship of minors
.............................................................................................................................................................................17
III...............................................................................................................................................BARS TO SUCCESSION
..................................................................................................................................................................................17
A...............................................................................................................................................................Homicide
.............................................................................................................................................................................17
Trusts & Estates Outline
B.............................................................................................................................................................Disclaimer
.............................................................................................................................................................................17
WILLS: CAPACITY AND CONTESTS..................................................................................................................18
I.....................................................................................................................................................MENTAL CAPACITY
..................................................................................................................................................................................18
A....................................................................................................................................The test of mental capacity
.............................................................................................................................................................................18
B.....................................................................................................................................................Insane delusion
.............................................................................................................................................................................19
II.....................................................................................................................UNDUE INFLUENCE, FRAUD & DURESS
..................................................................................................................................................................................19
A....................................................................................................................................................Undue influence
.............................................................................................................................................................................19
B.....................................................................................................................................................................Fraud
.............................................................................................................................................................................20
C...................................................................................................................................................................Duress
.............................................................................................................................................................................21
WILLS: FORMALITIES AND FORMS..................................................................................................................21
I.................................................................................................................................................EXECUTION OF WILLS
..................................................................................................................................................................................21
A.........................................................................................................................................................Attested wills
.............................................................................................................................................................................21
B.................................................................................................................................................Curative doctrines
.............................................................................................................................................................................23
C.................................................................................................................................................Holographic wills
.............................................................................................................................................................................24
II.............................................................................................................................................REVOCATION OF WILLS
..................................................................................................................................................................................25
A...................................................................................................................Revocation by writing or physical act
.............................................................................................................................................................................26
B...........................................................................................................Dependent relative revocation and revival
.............................................................................................................................................................................26
III..........................................................................................................................................COMPONENTS OF A WILL
..................................................................................................................................................................................28
A................................................................................................................................................Integration of wills
.............................................................................................................................................................................28
B........................................................................................................................................Republication by codicil
.............................................................................................................................................................................28
C...................................................................................................................................Incorporation by reference
.............................................................................................................................................................................28
D..........................................................................................................................Acts of independent significance
.............................................................................................................................................................................29
IV............................................................................................................................CONTRACTS RELATING TO WILLS
..................................................................................................................................................................................29
A.......................................................................................................................................Contracts to make a will
.............................................................................................................................................................................29
B...............................................................................................................................Contracts not to revoke a will
.............................................................................................................................................................................29
REVOCABLE TRUSTS AND PLANNING FOR INCAPACITY.........................................................................30
I...................................................................................................................................................REVOCABLE TRUSTS
..................................................................................................................................................................................30
A...........................................................................................................................................................Introduction
.............................................................................................................................................................................30
B............................................................................................................................................Pour-over wills/trusts
.............................................................................................................................................................................31
C.............................................................................................................................Advantages of revocable trusts
.............................................................................................................................................................................32
II.......................................................................................................................................PLANNING FOR INCAPACITY
..................................................................................................................................................................................32
A. ..................................................................................................................................Durable power of attorney
.............................................................................................................................................................................32
B..............................................................................Directives regarding health care and disposition of the body
.............................................................................................................................................................................32
CONSTRUCTION OF WILLS.................................................................................................................................33
I......................................................................................................MISTAKEN OR AMBIGUOUS LANGUAGE IN WILLS
..................................................................................................................................................................................33
A..............................................................................Traditional approach: no extrinsic evidence, no reformation
.............................................................................................................................................................................33
B......................................................Slouching toward reformation: correcting mistakes without reforming wills
.............................................................................................................................................................................33
C......................................................................................................................Openly reforming wills for mistake
.............................................................................................................................................................................34
II...........................................................................................DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR
..................................................................................................................................................................................34
A...........................................................................................................................................................Introduction
.............................................................................................................................................................................34
B..................................................................................................................................................Antilapse statutes
.............................................................................................................................................................................35
C..............................................................................................................................................................Class gifts
.............................................................................................................................................................................35
III..............................................................................................CHANGES IN PROPERTY AFTER EXECUTION OF WILL
..................................................................................................................................................................................36
A........................................................................................................................................Ademption by extinction
.............................................................................................................................................................................36
B.............................................................................................................Other miscellaneous changes in property
.............................................................................................................................................................................37
RESTRICTIONS ON POWER OF DISPOSITION................................................................................................37
I............................................................................................................................RIGHTS OF THE SURVIVING SPOUSE
..................................................................................................................................................................................38
A...............................................................................................................Introduction to marital property system
.............................................................................................................................................................................38
B..................................................................................................................................................The elective share
.............................................................................................................................................................................38
C...................................................................................................................Property subject to the elective share
.............................................................................................................................................................................39
D..................................................................................................................................Waiver of the elective share
.............................................................................................................................................................................40
E...............................................................................................Rights of surviving spouse in community property
.............................................................................................................................................................................41
F.............................................................................Spouses omitted from a premarital will (pretermitted spouse)
.............................................................................................................................................................................41
II.............................................................................................................RIGHTS OF ISSUE OMITTED FROM THE WILL
..................................................................................................................................................................................42
A....................................................................................................................Protection from intentional omission
.............................................................................................................................................................................42
B................................................................................................................Protection from unintentional omission

.............................................................................................................................................................................42
TRUSTS: CREATION AND CHARACTERISTICS..............................................................................................43
I............................................................................................................................................................INTRODUCTION
..................................................................................................................................................................................43
A....................................................................................................................................................Parties to a trust
.............................................................................................................................................................................43
B.................................................................................................................................................Creation of a trust
.............................................................................................................................................................................43
1....................................................................................................................................................... Intent to create a trust
....................................................................................................................................................................................... 43
2................................................................................................................................................Necessity of trust property
....................................................................................................................................................................................... 44
3.........................................................................................................................................Necessity of trust beneficiaries
....................................................................................................................................................................................... 44
4.....................................................................................................................................Necessity of a written instrument
....................................................................................................................................................................................... 45
II........................................................................RIGHTS OF THE BENEFICIARY TO DISTRIBUTIONS FROM THE TRUST

..................................................................................................................................................................................46
III............................................................................................................RIGHTS OF THE BENEFICIARYS CREDITORS
..................................................................................................................................................................................47
A...............................................................................................................................................Discretionary trusts
.............................................................................................................................................................................47
B...................................................................................................................................................Spendthrift trusts
.............................................................................................................................................................................47
C........................................................................................................................Self-settled asset protection trusts
.............................................................................................................................................................................48
IV.......................................................................................................MODIFICATION AND TERMINATION OF TRUSTS
..................................................................................................................................................................................48
A...........................................................................................................................................................Introduction
.............................................................................................................................................................................48
B.................................................................................................................................................Trust modification
.............................................................................................................................................................................49
C.......................................................................................................Trust termination and removal of the trustee
.............................................................................................................................................................................49
INTRODUCTION TO ESTATE PLANNING...........................................................................................................8
I..................................................................POWER TO CONVEY PROPERTY AT DEATH: JUSTIFICATIONS AND LIMITS
....................................................................................................................................................................................8
A..................................................................................................................Theories of the right to inherit/convey
...............................................................................................................................................................................8
B.....................................................................................................................Justifications for the right to convey
...............................................................................................................................................................................8
C..............................................................................................................................The problem of the dead hand
...............................................................................................................................................................................8
II................................................................................................................PROBATE VERSUS NON-PROBATE ASSETS
....................................................................................................................................................................................9
A..............................................................................................................................Introduction to will substitutes
...............................................................................................................................................................................9
B..........................................................................................Life insurance, pension accounts, and bank accounts
...............................................................................................................................................................................9
C........................................................................................................................................Joint tenancies in realty
.............................................................................................................................................................................11
III...............................................................................................................................PROFESSIONAL RESPONSIBILITY
..................................................................................................................................................................................11
IV..................................................................................................................TRANSFER OF THE DECEDENTS ESTATE

..................................................................................................................................................................................11
A...........................................................................................................Obligations of the personal representative
.............................................................................................................................................................................11
B..............................................................................................................................................The probate process
.............................................................................................................................................................................12
INTESTACY...............................................................................................................................................................12
I............................................................................................................................................................BASIC SCHEME
..................................................................................................................................................................................12
A........................................................................................................................................Intestacy as default rule
.............................................................................................................................................................................12
B..........................................................................................UPC intestacy provisions (preference for the spouse)
.............................................................................................................................................................................13
C..................................................................................................................................The requirement of survival
.............................................................................................................................................................................13
D...........................................................................................................................................Shares of descendants
.............................................................................................................................................................................14
II..........................................................................................................................................TRANSFERS TO CHILDREN
..................................................................................................................................................................................15
A..........................................................................................................................................Meaning of \children\
.............................................................................................................................................................................15
B........................................................................................................................................................Advancements
.............................................................................................................................................................................16
C......................................................................................................Guardianship and conservatorship of minors
.............................................................................................................................................................................17
III...............................................................................................................................................BARS TO SUCCESSION
..................................................................................................................................................................................17
A...............................................................................................................................................................Homicide
.............................................................................................................................................................................17
B.............................................................................................................................................................Disclaimer
.............................................................................................................................................................................17
WILLS: CAPACITY AND CONTESTS..................................................................................................................18
I.....................................................................................................................................................MENTAL CAPACITY
..................................................................................................................................................................................18
A....................................................................................................................................The test of mental capacity
.............................................................................................................................................................................18
B.....................................................................................................................................................Insane delusion
.............................................................................................................................................................................19
II.....................................................................................................................UNDUE INFLUENCE, FRAUD & DURESS
..................................................................................................................................................................................19
A....................................................................................................................................................Undue influence
.............................................................................................................................................................................19
B.....................................................................................................................................................................Fraud
.............................................................................................................................................................................20
C...................................................................................................................................................................Duress
.............................................................................................................................................................................21
WILLS: FORMALITIES AND FORMS..................................................................................................................21
I.................................................................................................................................................EXECUTION OF WILLS
..................................................................................................................................................................................21
A.........................................................................................................................................................Attested wills
.............................................................................................................................................................................21
B.................................................................................................................................................Curative doctrines
.............................................................................................................................................................................23
C.................................................................................................................................................Holographic wills
.............................................................................................................................................................................24
II.............................................................................................................................................REVOCATION OF WILLS
..................................................................................................................................................................................25
A...................................................................................................................Revocation by writing or physical act
.............................................................................................................................................................................26
B...........................................................................................................Dependent relative revocation and revival
.............................................................................................................................................................................26
III..........................................................................................................................................COMPONENTS OF A WILL
..................................................................................................................................................................................28
A................................................................................................................................................Integration of wills
.............................................................................................................................................................................28
B........................................................................................................................................Republication by codicil
.............................................................................................................................................................................28
C...................................................................................................................................Incorporation by reference
.............................................................................................................................................................................28
D..........................................................................................................................Acts of independent significance
.............................................................................................................................................................................29
IV............................................................................................................................CONTRACTS RELATING TO WILLS
..................................................................................................................................................................................29
A.......................................................................................................................................Contracts to make a will
.............................................................................................................................................................................29
B...............................................................................................................................Contracts not to revoke a will
.............................................................................................................................................................................29
REVOCABLE TRUSTS AND PLANNING FOR INCAPACITY.........................................................................30
I...................................................................................................................................................REVOCABLE TRUSTS
..................................................................................................................................................................................30
A...........................................................................................................................................................Introduction
.............................................................................................................................................................................30
B............................................................................................................................................Pour-over wills/trusts
.............................................................................................................................................................................31
C.............................................................................................................................Advantages of revocable trusts
.............................................................................................................................................................................32
II.......................................................................................................................................PLANNING FOR INCAPACITY
..................................................................................................................................................................................32
A. ..................................................................................................................................Durable power of attorney
.............................................................................................................................................................................32
B..............................................................................Directives regarding health care and disposition of the body
.............................................................................................................................................................................32
CONSTRUCTION OF WILLS.................................................................................................................................33
I......................................................................................................MISTAKEN OR AMBIGUOUS LANGUAGE IN WILLS
..................................................................................................................................................................................33
A..............................................................................Traditional approach: no extrinsic evidence, no reformation
.............................................................................................................................................................................33
B......................................................Slouching toward reformation: correcting mistakes without reforming wills
.............................................................................................................................................................................33
C......................................................................................................................Openly reforming wills for mistake
.............................................................................................................................................................................34
II...........................................................................................DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR
..................................................................................................................................................................................34
A...........................................................................................................................................................Introduction
.............................................................................................................................................................................34
B..................................................................................................................................................Antilapse statutes
.............................................................................................................................................................................35
C..............................................................................................................................................................Class gifts
.............................................................................................................................................................................35
III..............................................................................................CHANGES IN PROPERTY AFTER EXECUTION OF WILL
..................................................................................................................................................................................36
A........................................................................................................................................Ademption by extinction
.............................................................................................................................................................................36
B.............................................................................................................Other miscellaneous changes in property
.............................................................................................................................................................................37
RESTRICTIONS ON POWER OF DISPOSITION................................................................................................37
I............................................................................................................................RIGHTS OF THE SURVIVING SPOUSE
..................................................................................................................................................................................38
A...............................................................................................................Introduction to marital property system
.............................................................................................................................................................................38
B..................................................................................................................................................The elective share
.............................................................................................................................................................................38
C...................................................................................................................Property subject to the elective share
.............................................................................................................................................................................39
D..................................................................................................................................Waiver of the elective share
.............................................................................................................................................................................40
E...............................................................................................Rights of surviving spouse in community property
.............................................................................................................................................................................41
F.............................................................................Spouses omitted from a premarital will (pretermitted spouse)
.............................................................................................................................................................................41
II.............................................................................................................RIGHTS OF ISSUE OMITTED FROM THE WILL
..................................................................................................................................................................................42
A....................................................................................................................Protection from intentional omission
.............................................................................................................................................................................42
B................................................................................................................Protection from unintentional omission
.............................................................................................................................................................................42
TRUSTS: CREATION AND CHARACTERISTICS..............................................................................................43
I............................................................................................................................................................INTRODUCTION
..................................................................................................................................................................................43
A....................................................................................................................................................Parties to a trust
.............................................................................................................................................................................43
B.................................................................................................................................................Creation of a trust
.............................................................................................................................................................................43
1....................................................................................................................................................... Intent to create a trust
....................................................................................................................................................................................... 43
2................................................................................................................................................Necessity of trust property
....................................................................................................................................................................................... 44
3.........................................................................................................................................Necessity of trust beneficiaries
....................................................................................................................................................................................... 44
4.....................................................................................................................................Necessity of a written instrument
....................................................................................................................................................................................... 45
II........................................................................RIGHTS OF THE BENEFICIARY TO DISTRIBUTIONS FROM THE TRUST

..................................................................................................................................................................................46
III............................................................................................................RIGHTS OF THE BENEFICIARYS CREDITORS
..................................................................................................................................................................................47
A...............................................................................................................................................Discretionary trusts
.............................................................................................................................................................................47
B...................................................................................................................................................Spendthrift trusts
.............................................................................................................................................................................47
C........................................................................................................................Self-settled asset protection trusts

.............................................................................................................................................................................48
IV.......................................................................................................MODIFICATION AND TERMINATION OF TRUSTS
..................................................................................................................................................................................48
A...........................................................................................................................................................Introduction
.............................................................................................................................................................................48
B.................................................................................................................................................Trust modification
.............................................................................................................................................................................49
C.......................................................................................................Trust termination and removal of the trustee
.............................................................................................................................................................................49
INTRODUCTION TO ESTATE PLANNING

I. POWER TO CONVEY PROPERTY AT DEATH: JUSTIFICATIONS AND LIMITS
A. Theories of the right to inherit/convey
1. Jefferson Property is ours only when were alive, reverts to society
2. Blackstone Familial practices of inheritance developed into a general law
3. Locke God planted in men desire for self-preservation, which then formulated into
protecting ones offspring; property inheritance is part of this natural law
4. Locke lost out to Jefferson/Blackstone and it became generally accepted that there is
no natural right or constitutionally protected power to pass property at death
5. Hodel v. Irving (U.S. 1987) [1 CB 3]: Indian land held in trust by US was allowed to
be devised at Indians death; result was many land parcels subdivided into hundreds
of owners with lack of large, contiguous tracts. Congress passed law that prohibited
devise of certain mini-tracts of land and escheated to the tribe. Rule: Law here
amounts to a virtual abrogation of the right to devise real property, long been
protected in American legal system, and constitutes a taking. The U.S. may,
however, limit authority to devise property without implicating the Constitution.
i. Stands for proposition that there is constitutional baseline for right to devise
which cant be taken away altogether, even though can be limited constitutionally
ii. Outcome is same even though Congress had very good reason for statute
B. Justifications for the right to convey
1. Encourages people to save for distribution at death rather than waste assets during life
2. Creates incentives for potential transferees to maintain relations with transferors
3. Death is inevitable so right allows people a means for putting their affairs in order
4. Provides a mean for controlling state taxation of estates (though estate tax not that
onerous and not a double tax b/c of generous exemptions and fact that tax touches
on much property with unrealized gain which has never been taxed before)
C. The problem of the dead hand
1. R(3d) Wills 10.1 With limited exceptions relating to creditors rights, spousal and
childrens rights, and public policy, American laws goal is to effectuate donors
intent regardless of the soundness or reasonableness of that intent in eyes of court
2. Shapira v. Union Natl Bank (Ohio Ct. Comm. Pleas 1974) [2 CB 21]: Father left will
with bequest to son on condition that son was married to a good Jewish girl at time of
fathers death. Son, who did not qualify, sought to hold enforcement of will
unconstitutional or against public policy. Rule: Provision is valid and enforceable

so long as it does not unreasonably interfere with sons right to marry.
i. No constitutional right to inherit property and testators are free to disinherit their
children under most American, so the Constitution provides no guidance here
ii. Not impinge on sons right to marry b/c he can still marry whomever he wants
although its an example of dead hand control b/c son must comply with dead
fathers wishes if he wants to inherit under the will
iii. No public policy problem b/c conditioning receipt of inheritance eon beneficiarys
marriage or another act is enforceable so long as it is reasonable (its reasonable
here b/c the pool of people that son could marry is large, not restrict the son)
3. Dead hand control is pretty well respected in a will so long as its tightly drafted (e.g.,
if there are alternative clauses in case certain gifts fail)
i. Problem with dead hand control can generate litigation and be costly for estate
ii. Certain dead hand restraints are going to be dead on arrival e.g., condition
requiring that wife smoke five packs of cigarettes a day will be invalidated
II. PROBATE VERSUS NON-PROBATE ASSETS
A. Introduction to will substitutes
1. Probate, the system for transferring wealth at death, is declining as means of
transferring property as we rely more on nonprobate means of transfer at death,
mainly: life insurance, pension accounts, joint accounts, and revocable trusts
i. Property held as joint tenants is quintessential nonprobate asset it never enters
the probate estate and passes by operation of law to the surviving owners
ii. Property subject to power of appoint also escapes probate a 3d party is
designated by the owner to determine who will take at some time in the future
a. General power of appointment donee takes possession and does as he wishes
b. Special power of appointment donee takes possession and can distribute to a
particular group of persons (X to Y for distribution to my lineal descendants)
c. Most powers of appointments have a gift in default so that if the donee fails to
transfer property correctly, a default party will receive it
2. Nonprobate assets pass to their beneficiaries without having to go through probate
and generally w/o regard to the instructions of wills/intestacy statutes
i. Some contractual terms escape probate b/c purpose of probate is to effectuate
decedent intent and these contractual terms are sufficient evidence of this
ii. Question of who is to take is answered by the arrangement, so no need to look
elsewhere
3. Gross estate under the IRC includes the entire estate, probate and nonprobate and
thus is larger than the probate estate
4. Title controls in a common law state and much property that is untitled (furnishings,
misc. personalty etc.), is easily dealt outside probate by treating them as jointly
owned or as a gift from the deceased to the survivor
B. Life insurance, pension accounts, and bank accounts
1. Effective nonprobate transfers cant be defeated by a will because the transfer occurs
prior to and outside of the will (nonprobate assets are outside touch of the will)
2. Wilhoit v. Peoples Life Ins. Co. (7th Cir. 1955) [7 CB 325]: Insured died, leaving death
benefit to his wife. Insurer distributed money to wife, who 23 days later, deposited
the funds back with the insurer with a death beneficiary of her brother. Her brother
died without bequeathing the funds, and she then died leaving it to her stepsons son.
Rule: The deposit of the funds with the insurer was not a part of the original
insurance contract, which had ended when the insurer paid out the benefit, and
accordingly, the death designation was not an effective will substitute.
i. Court treats the deposit and death designation as an ineffective POD in a deposit
account b/c it fails to comply with the formalities required by the statute
ii. Applies the minority rule still in force in some states that POD designations in
anything but a life insurance contracts are invalid
3. Estate of Hillowitz (N.Y. 1968) [8 CB 328]: Decedent, partner in a partnership died.
Partnership agreement provided that upon death, partners share passed to his
surviving spouse. Executor sues to bring share into probate estate. Rule: The
provision is valid and not defeated by labeling it a testamentary disposition.
i. Court provides examples of types of contracts that can effect after-death transfers
w/o satisfying formalities: insurance, inter vivos trust, contract to make will
4. UPC 6-101 Provision for nonprobate transfer in particular instruments is
nontestamentary, effective, and enforceable
5. Pension accounts most retirement assets are held in tax-qualified pension accounts
i. Most defined benefits plan pay out in form of annuity for life of participant, or as
joint and survivor annuity for life of participant and surviving spouse, leaving
nothing to be disposed at the time of death
ii. Most defined contribution plans pay out as lump sums, with the very real
possibility that there will be pension assets to convey at the time of death
iii. Egelhoff v. Egelhoff (U.S. 2001) [CB 336]: Participant designated his spouse as
death beneficiary of his ERISA account; participant divorced without revoking
designation. WA law revoked any pre-divorce death designations of the exspouse. Rule: ERISA preempts WA law under policy of national uniformity
of plan administration; rule imposes mandate on plan to follow WA law
rather than the beneficiary designation made under the plan.
6. Multi-party bank and brokerage accounts
i. Joint and survivor account A typical bank account between A and B; be careful
b/c a joint tenancy account may not be intended and may not be effected (e.g., A
and B open up savings account, but B only has death benefit and no right to access
account although opened jointly, this is actually a POD account)
ii. POD account Account with death beneficiary designation (POD accounts
remain invalid in a handful of states for failure to comply with formalities)
a. Most states have some minimal formality requirement for POD accounts so
that courts have some indicia of reliability and will allow it
iii. Agency account Account where agent has lifetime rights to access the account
as depositors agent, but not entitled to the balance at the primary owners death
iv. Totten trusts A nontestamentary arrangement (O, as trustee for A) where O has
access during his lifetime and A is merely a POD beneficiary of whatevers in the
account at the time of Os death
v. UPC treatment
10
a. Recognizes all of these except Totten trust (treated as a POD account) and
extrinsic evidence is admissible to show that account open solely for the
convenience of the depositor (and thus not truly a joint tenancy)
b. Survivorship required for POD bank accounts ( 6-212), but antilapse statute
( 2-706) substitutes issue of the beneficiary if the beneficiary was a close
relative of the decedent
C. Joint tenancies in realty
1. Common and popular way of holding realty to avoid probate b/c under common law,
death of joint tenant extinguishes his share and remaining joint tenants own the
property in fee simple absolute
2. Three properties of joint tenancies to recognize:
i. Joint tenants have co-equal interests and thus a joint tenants share cant be
revoked or cancelled (thus imperfect will substitute b/c no revocability)
ii. Joint tenant cant dispose of a joint tenancy by will b/c nothing to dispose
iii. Creditor can reach joint tenants share only during life; interest vanishes at death
III.PROFESSIONAL RESPONSIBILITY
A. Simpson v. Calivas (N.H. 1994) [8 CB 49]: Deceased consulted lawyer and wanted to
leave wife a life tenancy and remaining lands to his son. Lawyer drafted will so that the
life had a life tenancy in all the property, remainder to the son. Son sued fathers lawyer.
Rule: Lawyer who drafts will owes duty of reasonable care to the intended
beneficiaries of the will, including effecting the testators intent. The contractual
privity requirement is not ironclad and will be defeated where it is foreseeable that
an injury to the intended beneficiary will occur.
1. Some states continue to enforce the contract theory and thus prohibit a malpractice
suit against by the intended beneficiary against the drafting lawyer w/o strict privity
2. Many courts, though, allow suits based in tort or combo of tort and contract
B. Hotz v. Minyard (S.C. 1991) [8 CB 54]: Lawyer drafts will for father leaving property son
and daughter; father comes in, revokes, asks for re-draft that disinherits daughter, and
asks lawyer not to tell daughter. When daughter asks, lawyer lies per fathers
instructions. Daughter sues for breach of fiduciary duty. Rule: Law firm, which had
long represented daughter on other matters (and thus owed daughter a special
confidence), was conflicted and also owed daughter fiduciary duty.
1. Lawyer need not have disclosed the second will, but he could not actively lie about it
2. In cases of multiple representations with possibility of conflicts, best course of action
is to advise parties to retain separate counsel or for lawyer to withdraw from rep
C. MRPC 1.8(c) prohibits lawyers from drafting documents for clients that benefit the
lawyer, except for minimal gifts, except where the lawyer is related to the client
IV. TRANSFER OF THE DECEDENTS ESTATE
A. Obligations of the personal representative
1. In a testate estate, this is the executor; in intestacy its the administrator
11
2. PR has to inventory and collect assets of decedent, including pursuing assets that are
wrongly taken from the estate
3. PR has to manage assets of the probate estate during probate
4. PR is to receive and pay claims of creditors and tax collectors
5. PR is to clear title to any realty and personalty and other assets if there is exoneration
language in the instrument
6. PR is to make distributions as provided under the will
7. PR has to file tax returns: estate tax return, income tax return for the year in which
decedent died, and if necessary, income tax return for the estate
i. Max estate income tax rates are reached at income = $7,500, so goal is to get rid
of income producing property of the estate quickly
ii. 99.5% of estates are not liable for any estate tax
B. The probate process
1. Most states have specialized probate courts that handle solely trusts and estates
2. Primary place for probate is the decedents domicile at death, although well need
ancillary probate in any jurisdiction where there is realty (you can avoid this by
putting realty in trust b/c law of state of trust governs all trust assets, even realty in
another state)
3. Good thing about probate is that claims of creditors are barred after a short period
(usually 3-6 months), so can be easy way to cut off any unknown claims
4. Probate necessary for larger estates (and some may demand it even for smaller ones),
but many states provide informal processes for small estates or where a settlement of
the estate can occur between the parties w/o need for cost of probate
i. Furnishings can generally be treated as if jointly owned with spouse, so treated as
a non-probate asset
ii. For things like automobiles and bank accounts, most places will change title with
informal process of presenting death certificate and proof that the new titleholder
is entitled to the property
iii. If there is realty that needs to be retitled, we have to do probate b/c a court order
is required to pass title from the decedent to the new taker
5. Wills are almost always recommended b/c they give somebody access to bank
accounts to pay creditors in the interim during probate, if the client is unhappy with
intestate succession rules, or if there or may be minor children needing guardianship
INTESTACY
I. BASIC SCHEME
A. Intestacy as default rule
1. Intestacy functions as a default rule for those that die w/o disposing of their property
i. As default rule, intestacy tries to get at what most people want
ii. Most want a spouse or other family member to be natural object of their bounty,
and as result of UPCs popularity, most spouses take all if there are no
descendants or if the surviving spouse is also the parent of any descendants
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iii. Preference for the family also respects family protection policy the need to
protect the family economically after the death of the decedent
iv. UPC does not protect domestic partners or partners in non-marital relationships
and many argue that intestacy rules need to be amended to reflect these. At yearend 2012, same-sex marriage with spousal intestacy rights was recognized in
Connecticut, New York, Vermont, and Washington. Spousal-like intestacy rights
were also available in a civil union or in a registered domestic partnership in
California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon,
Rhode Island, and Wisconsin.
2. Complete vs. partial intestacy Complete if no will at all, and partial if part of the
will fails or some probate property is not otherwise disposed of through the will
B. UPC intestacy provisions (preference for the spouse)
1. UPC 2-101(a) Any part of decedents estate not devised by will passes by
intestate succession
2. UPC 2-101(b) Negative disinheritance By will, testator may exclude or limit
particular persons or classes of persons to inherit by intestacy; effect is same as if
person had disclaimed
3. UPC 2-102 If decedent has surviving spouse:
(1) If (a) decedent has no surviving parents or descendants; or (2) any surviving
descendants are also descendants of the surviving spouse, the surviving spouse
gets the entire intestate estate
(2) If no descendants survive but a parent of the decedent survives, the surviving
spouse gets [$200,000] of the intestate estate plus 3/4 of the remainder
(3) If (a) all the decedents descendants are also descendants of the surviving spouse;
and (b) the surviving spouse has descendants that are not descendants of the
decedent, the surviving spouse gets [$150,000] plus 1/2 of the remainder
(4) If any of the decedents surviving descendants are not descendants of the
surviving spouse, the surviving spouse gets [$100,000] plus 1/2 of the remainder
4. UPC 2-103 Any part of the intestate estate not passing to surviving spouse passes:
(1) Decedents descendants by representation
(2) If no surviving descendants, to decedents parents equally or to the survivor
(3) If no surviving descendants or parents, to the descendants of the decedents
parents by representation
(4) If none of the above, one half to each set of grandparents (or the survivor of them)
or their descendants, but if one side is entirely empty, the entire estate passes to
the side that has grandparent(s) or descendants thereof
5. UPC 2-105 Intestacy escheat provision; default is to escheat to the state
6. Surviving spouse means the spouse legally recognized by law that survives decedent
C. The requirement of survival
1. Taker under rules of intestacy must survive the decedent, and this can create big
problems if order of death is confused or unknown
i. Purpose of requirement is idea that if parties die simultaneously or close thereto,
decedent would rather benefit his own line rather than heirs of the beneficiary
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ii. Problems arise outside of intestacy, but its not as common as most well-drafted
wills or other documents explicitly have a survival requirement of 30 or 60 days
2. Uniform Simultaneous Death Act If no sufficient evidence of the order of deaths,
beneficiary is presumed to predecease the donor and neither inherits from the other
3. Janus v. Tarasewicz (Ill. App. Ct. 1985) [11 CB 68]: Husband and wife ingested
cyanide-laced Tylenol. Husband died at the home, but wife survived on life support
for about two more days. Husbands life insurer determined wife survived him and
paid proceeds out to wifes estate. Rule: Under IL statute, survivorship has to be
proven by the party whose claim depends on survivorship by a preponderance of
the evidence; the trial courts finding that wife survived husband because she
was not brain dead for two days after husbands death is not manifestly wrong.
i. Under IL statute, beneficiary needed only to survive decedent by a moment
ii. This case led to UPCs amendment to require 120 hours of survival, but as this
case shows, medical survival depended on outside assistance, which could go
much longer than 120 hours and raises the question of whether 120 hours is
enough.
4. UPC 2-104 For purposes of intestate succession, clear and convincing evidence
must show that any taker survives the decedent by 120 hours, but this provision not
apply if result is escheat under UPC 2-105
D. Shares of descendants
1. After the spouses share is set aside, the descendants take, and if any of the
descendants are dead, the issue of the descendant represent the descendant
2. Sons- and daughters-in-law typically take nothing under intestacy statutes, and
likewise, a deceased descendant without issue is treated as if she never existed
3. There are three basic systems for how issue of deceased descendants take:
i. English per stirpes / strict per stirpes Divide the property into as many parts as
there are first-line living descendants or deceased descendants with issue, with
issue representing the deceased descendant at the level of division; it is strict b/c it
treats each line of descendants equally
ii. Modern per stirpes / per capita with representation The estate is divided equally
among all at the first generation in which there are living descendants or issue of
the descendants, with issue representing any deceased descendant at the level of
division
iii. Per capita at each generation (1990 UPC) Division occurs at the first level of
survivors, with equal division among any survivors at that level; the remainder is
divided evenly between all descendants of any deceased descendant of the
decedent
A
B
C
Z

D
E F
System
English per stirpes
Modern per stirpes
Per capita at each generation
Distribution
D(1/2); F(1/4); G(1/8); H(1/8)
D(1/3); F(1/3); G(1/6); H(1/6)
D(1/3); F(1/3); G(1/6); H(1/6)
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G H
4. Negative disinheritance Testators right to expressly disinherit children
i. Where common law intestacy does not respect negative disinheritance in a will,
UPC will impose disinheritance in a will onto the scheme of intestacy
5. UPC does not distinguish between half-blood and whole-blood children
II. TRANSFERS TO CHILDREN
A. Meaning of children
1. Hall v. Vallandingham (Md. 1988) [12 CB 83]: Earl died survived by wife and four
children. Wife remarried and new husband adopted children. Earls brother dies 25
years later and Earls children attempt to inherit from him through Earl. Rule: Law
provides adopted children all the rights of natural children vis--vis the adoptive
parents, but severs the childs right to inherit from his natural parents, and
accordingly, loses the right to inherit through his natural parents.
i. This approach is only one of many; TX adoptive child is a super-taker that can
inherit from and through both adoptive and natural parents
ii. TX approach defended on ground that modern adoption doesnt necessarily sever
all ties and that adoption often applies to young children who have no legal voice
separate from their natural parents and thus should have right to choose from
whom they wish to take
2. UPCs treatment of children and inheritance
i. UPC 2-113 Individual related to decedent through two lines is allowed only
one share, that being the larger share as between the two he is allowed
ii. UPC 2-114(a) Except as provide for in (b) or (c), for intestacy purposes,
individual is child of his natural parents
iii. UPC 2-114(b) An adopted individual is the child of his adoptive parents and
not his natural parents, except that adoption by a new spouse of the natural parent
does not sever the individuals right to inherit from either natural parent (e.g.,
adoptive childs descendants can inherit from the adoptive family)
iv. UPC 2-114(c) Individual may inherit from natural child only where he has
openly treated the child as his and has not refused to support the child
3. Most adoption statutes dont distinguish between adoption of children and adults, and
adopting an adult may be one means to avoiding a will contest (but adoption of a
spouse or a lover may not be allowed)
i. Minary v. Citizens Fidelity Bank & Trust Co. (Ky. Ct. App. 1967) [13 CB 89]:
Amelia left trust for benefit of husband and 3 children, to terminate upon death of
last child and corpus distributed to her heirs and then a church. Amelias
youngest son adopted his wife as his child, and after youngest sons death,
adopted wife tried to inherit as Amelias heir. Rule: Kentucky law recognizes
the adoption of adults for the purposes of making them heirs at law.
However, to permit the adopted wife to inherit would thwart Amelias intent,
which was to leave the property to the church in absence of an heir.
ii. Even in states permitting adult adoptions (of spouses for that matter) for purposes
of inheriting as heirs, our underlying goal is still to effectuate decedents intent
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4. ONeal v. Wilkes (Ga. 1994) [14 CB 94]: ONeal was raised by her mother, who dead
when she was young. She ended up in the care of the Cooks, who never adopted her
but treated her as their daughter, including referring to her as such. ONeal sought to
declare a virtual or equitable adoption so that she could inherit from the Cooks. Rule:
A virtual adoption can arise by contract only between the putative adoptive
parent and a party with authority to give the child up for adoption; the person
that gave ONeal to the Cooks did not have such authority and therefore, no
virtual adoption occurred.
i. Dissent: Equity should enforce this adoption where the putative adoptive child has
played the role for years and thus sufficiently establishes the existence of a
contract to adopt the child
ii. Somebody couldve through court order gotten legal custody of ONeal and thus
been in the position to give her up for adoption to the Cooks
5. Wrinkles in childbirth and technology raise a host of questions for who are children
i. Posthumously born children generally treated as children of the decedent so long
as the child is born within 280 (common law) or 300 (Uniform Parentage Act
204) days of the decedents death with paternity established through postmortem
DNA testing if necessary
ii. Posthumously conceived children are necessarily nonmarital children even though
had both parents may have been married when they were alive
iii. Woodward v. Commissioner of Social Security (Mass. 2002) [16 CB 102]: Wife
who used deceased husbands sperm to conceive children sought survivor and
childrens Social Security benefits, which turns on the children being able to
inherit under MA intestacy law. Rule: In limited circumstances, posthumously
conceived children may inherit under MA law. The surviving parent must
show a genetic relationship between the child and the deceased parent and
proof that the deceased parent affirmatively consented to posthumous
conception and support of any resulting child.
a. Rather than bright line rule, result is achieved through balancing of competing
state interests: best interests of child, orderly administration of estates, and
protection of deceaseds reproductive rights
b. R(3d) Wills 2.5 cmt.1 specifically recognizes children conceived through
use of a deceased spouses frozen sperm
B. Advancements
1. At common law, advancements were considered deposits against the intestate share
i. A child that receives a lifetime transfer intended by the transferor to be an early
distribution from the transferors estate shares in the estate only to the extent to
achieve equality in distribution
ii. Ex: Lifetime transfer to A of $25, B of $0. Intestate estate of $75 to be distributed
between them; under common law, you add all advancements to the intestate
estate and divide evenly to determine hotchpot. Result: A($25); B($50)
iii. Advancement exceeding the size of the probate estate means the transferee simply
does not take advance is irrevocable, so theres no duty to return property
2. UPC 2-109(a) Inter vivos gift is an advancement only if decedent declared so in a
contemporaneous writing or heir acknowledgement that gift is an advancement or is
16
to be taken into account in distributing intestate estate (thus, UPC rejects common
law and presumption is against an advancement)
C. Guardianship and conservatorship of minors
1. Guardian of the person Has responsibility for minor childs custody and care (but
no authority over the minors property) typically both parents or a surviving parent, or
their choice of successor (though a court will appoint is no guardian is chosen)
2. Guardian of property Extremely limited role with lots of limitations and
requirement of strict court supervision of the property guardianship
3. Conservatorship Better alternative to guardian of property because the function is
essentially that of a trustee, but still requires court intervention for some things
4. Custodianship Property held by a custodian for benefit of a minor child with a
transfer to the minor child at age 18 or 21 (and no court supervision required)
5. Trusts are the most flexible way of caring for the property of minor children, with the
ability to transfer absolute interest to child at majority or at whatever time trust says
III.BARS TO SUCCESSION
A. Homicide
1. In re Estate of Mahoney (Vt. 1966) [17 CB 126]: Wife shot and killed husband and was
convicted of manslaughter. Probate court denied wife a share of the intestate estate
even though VT has no slayer statute. Rule: Manslaughter is an intentional killing,
even if done out of sudden passion, so the appropriate course of action would be
to prevent the slayer from profiting from his actions. A constructive trust in
favor of the decedents other heirs is the appropriate remedy.
i. Court notes that probate court is court of limited jurisdiction without full equitable
powers so case remanded to chancery court for imposition of constructive trust
ii. Court notes that in absence of statutory guidance, a court can take 3 options:
a. Distribute to the slayer Effect the language of the descent statutes
b. Prohibit the slayer form taking Right result, but heavy-handed by judiciary
c. Allow slayer to take, but impose constructive trust in favor of other heirs (note
that this isnt a real trust, but an equitable remedy that vests title in the proper
party other than the wrongdoer and then trust terminates)
2. UPC 2-803(b) (1997) Intentionally and feloniously killing the decedent bars the
slayer from taking from the decedent in any form, including nonprobate assets
i. The slayer is treated as having disclaimed any share
ii. UPC 2-803(g) (1997) A conviction is conclusive of the slaying, but if slayer
would be found guilty under preponderance of evidence standard, that suffices too
(even if the wrongdoer was otherwise acquitted of any crime in court)
B. Disclaimer
1. Disclaimer Refusal to take property by an heir or devisee, with the disclaimant
treated as if he had predeceased the decedent so that the disclaimant never takes the
property for all legal purposes
i. Qualified disclaimer under the IRC allows disclaimant to avoid gift tax so long
as disclaimant has no enjoyment of property and has no say in who gets property
17
ii. Relates back to the date of the decedents death so that disclaimants creditors
cant reach the share of the estate that was disclaimed (in a minority of states, a
disclaimer by an insolvent debtor might be a fraudulent conveyance)
iii. UPC 2-1106(b)(3)(A) (2002) Disclaimer only affects the disclaimants share,
so disclaimants heirs cant get more than the share to which disclaimant would
be entitled if disclaimant hadnt disclaimed
2. Drye v. United States (US. 1999) [18 CB 134]: Drye disclaimed in order to avoid levy
on account of a tax lien, thus passing the disclaimed property to his daughter, who set
up a trust to his benefit. U.S. seeks attach the tax lien to the trust property. Rule:
Drye exercised the power either to retain the property or to pass it to another,
sufficient control over the property so that the tax lien could attach.
i. Court disallows disclaimer that would defraud the government of a tax lien, and
while most creditors cant touch disclaimed property, U.S. as tax collector can
ii. Had grandmother bequeathed property granddaughter, feds would have no share
3. Troy v. Hart (Md. Ct. Spec. App. 1997) [19 CB 136]: Disclaimant, resident in a hospice
paid for my Medicare and Medicaid, disclaimed an intestate share in order to avoid
losing Medicaid eligibility. Rule: Disclaimant had a legal obligation to notify
Medicaid regarding his equitable interest in the disclaimed property. Although
the disclaimer is valid under MD law, a constructive trust is imposed in favor of
Medicaid b/c otherwise unjust enrichment will result.
WILLS: CAPACITY AND CONTESTS

I. MENTAL CAPACITY
A. The test of mental capacity
1. Mental capacity is the baseline level needed to make a will:
i. Testator must be 18 or older and capable of knowing and understanding in a
general way (1) his property; (2) natural objects of his bounty; and (3) disposition
that he seeks to make in a way that (4) relates all these elements to one another
ii. Requirement is minimal understanding of these, not average, b/c otherwise most
people would not be adjudged mentally competent
iii. Persons with mental capacities like Alzheimers can still execute a will so long as
it is done during a period of lucidity
2. In re Estate of Wright (Cal. 1936) [20 CB 141]: Testator executed will and upon death,
it was sought to be probated. Drawer of the will plus the two subscribing witnesses
testify that at execution time, testator lacked mental capacity. Rule: At time of wills
execution the drawer and witnesses attested that testator had mental capacity to
make a will and they are bound by this. Isolated acts testified to by the witnesses
dont defeat the presumption of sanity; there must be evidence of a medical
condition and the effect that it had on him physically or mentally.
i. Bad case for challenge b/c why did they attest if they thought him incompetent,
particularly since the witnesses didnt come forward until the will contest
ii. Challenge by daughter b/c she is dissatisfied w/distribution is not sufficient the
testator otherwise met all the requirements of mental capacity and so will controls
18
iii. Presumption of will properly executed is sanity and the burden is on the
contestant to show that the testator lacked mental capacity
B. Insane delusion
1. Insane delusion is a form of impaired incapacity where evidence shows that testator
adhered to some incorrect belief against all reason
i. Insane delusion is not medical/psychological condition but rather a legal term
ii. Insane delusion doesnt void entire will, but rather only that part touched by it
want to provide evidence of what a will provision would be but for the delusion
iii. Cf. mistake in mistake, there is adherence to an incorrect belief, but the testator
is willing to reconsider the correctness of the adherence in presented w/evidence
(courts generally dont reform/invalidate wills because of mistake)
2. In re Strittmater (N.J. Ct. App. 1947) [21 CB 149]: Evidence presented that testator
exhibited hate of men and regard for feminism, which manifested itself in certain
physical acts (smashing clock, killing pet kitten); testator left her estate to the Natl
Womens Party. Rule: Evidence doesnt show testator took great interest in the
Party, so it is her insane delusion regarding men that caused her to leave it to the
Party, thus voiding the bequest on account of insane delusion.
i. Case appears an anomaly based on judges conception that this doesnt fit very
well into socially accepted mores of this time
ii. Judgment is based on his social beliefs rather than testamentary intent, and the
paranoia is founded based on social mores rather than testators state of mind
3. In re Honigman (N.Y. 1960) [21 CB 150]: Testator had for a long time believed his
wife was unfaithful doing such things as hiding men in closets and bringing them up
to her 2d-story room by use of sheets. Judge allowed jury to determine testators
sanity, and they responded that he had insane delusions. Rule: In light of the
evidence provided regarding testators obsessive beliefs, there is a question of
fact properly for the jury regarding testators mental capacity.
i. Testator in this case took very steps to disinherit wife, leaving her a share of his
estate sufficiently large to prevent her from exercising elective share
ii. Insane delusion can be proved based on testators unreasonable adherence to a
particular belief in light of contrary evidence (issue isnt whether wife was
unfaithful, but whether testator had reasonable grounds for believing that)
II. UNDUE INFLUENCE, FRAUD & DURESS
A. Undue influence
1. Many formulations are attempted for undue influence, but few answer the question
directly of when particular influence is undue (there is always influence)
2. Estate of Lakatosh (Pa. Super. 1994) [22 CB 159]: Neighbor Roger took care of elderly
testator Rose including getting power of attorney and getting the bulk of Roses estate
under her will, which was drafted by a Rogers second cousin. Roger converted
nearly half of Roses estate before her death (transferring a chunk of it to his lover),
and left Rose to live in squalor. Rule: Contestant arguing undue influence can
shift burden to proponent to prove lack of undue influence where (1) there was
confidential relationship, (2) person enjoying such relationship got bulk of
19
3.
4.
5.
6.
estate, and (3) decedents intellect was weakened. These elements are met in this
case.
i. This is about as close as you get to the quintessential undue influence case
ii. A confidential relationship can occur where the weaker party comes to rely on the
stronger one and the weaker party is otherwise in a compromised position
iii. Courts remedy is constructive trust, which is typical remedy for undue influence
R(3d) Wills 8.3 & cmt. h (2003) Undue influence, which occurs when wrongdoer
exercises such influence that it overcomes the donors free will such that the donor
makes a gift that she otherwise wouldnt have made, voids a gift; there must be
existence of a confidential relationship plus some suspicious circumstances
surrounding making of gift
Lipper v. Weslow (Tex. Ct. App. 1963) [23 CB 162]: Testator has 4 grandchildren from
deceased son from first marriage and two surviving children from third marriage.
Surviving son drafted will executed by testator that explained purpose of will and
then specifically disinherited grandchildren. Rule: Although contestants put on
evidence of confidential relationship, they must also show that the confidential
relationship enabled son to substitute his preferences for that of testator. Where
testator had mental capacity and told three people afterward of her intentions in
the will, contestants fail.
i. Although theres confidential relationship, you have to show more
ii. Evidence in case of testators actions show her to be of strong mental intellect and
that she knew exactly what she was doing in the will
iii. Be careful if drafter of will is also beneficiary thereunder send to indep counsel
In re Will of Moses (Miss. 1969) [24 CB 170]: Fannie Moses was thrice married and
ultimately fell in love with Holland, her lawyer, who was 15 years her junior and her
lover. Moses went to an independent lawyer who drafted a will leaving everything to
Holland; Holland did not know about this will until Moses death. Rule: There was
sufficient evidence to find a confidential relationship supporting undue
influence. Because the independent counsel only acted as a scrivener without
giving advice to Moses, this did not rebut the presumption of undue influence.
In re Kaufmanns Will (N.Y. App. Div. 1964) [CB 174]: Millionaire Kaufmann moved
to N.Y. and moved in with Walter who took care of his life affairs so Kaufmann
could paint. Kaufmann wrote will leaving everything to Walter and also wrote
separate letter explaining why he did so. Rule: There is undue influence b/c of
confidential relationship between the parties and the letter demonstrates the
totality of control Walter had over Kaufmann.
i. Its unclear why case comes out this way other than on social norms what if this
had been a marriage relationship or heterosexual?
ii. Good counseling would require you consider more than just wills, but other
means of accomplishing ends such as trusts, inter vivos gifts, etc.
B. Fraud
1. Fraud Testator is deceived by a misrepresentation and does that which he wouldnt
have done but for the misrepresentation; usually requires that the defrauder have
intent to deceive testator and purpose influencing testamentary act
i. Any portion of the will touched by fraud will be excised
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2. Fraud in the inducement Misrepresentation of facts causing the testator to execute a

will to include particular provisions or to refrain from executing or revoking a will
3. Fraud in the execution Misrepresentation regarding the nature of the document
executed by the testator
C. Duress
1. R(3d) Wills 8.3(c) (2003) A donative transfer is procured by duress where
wrongdoer threatened to perform or did perform wrongful act that coerced donor into
making the transfer that donor otherwise wouldnt have (coercive undue influence)
2. Latham v. Father Divine (N.Y. 1949) [CB 189]: Decedent executed a will leaving
much of her property to religious leader Father Divine. Plaintiffs brought evidence
that decedent had a new will drawn, but did not execute it based on threat of violence
and intimidation by Father Divine. Rule: If there is duress, the appropriate
remedy is a constructive trust in plaintiffs favor.
3. An alternate theory to duress that can be used is tortuous interference with
expectancy, which is not a will contest but rather a C/A in tort
WILLS: FORMALITIES AND FORMS

I. EXECUTION OF WILLS
A. Attested wills
1. Formalities serve four functions in the law of wills:
i. Ritual function Ensures that testator appreciates the consequences and gravity of
his act and that everybody involves knows the seriousness of whats going on
ii. Evidentiary function B/c testator will be dead at point of proving the will, the
formalities ensure that the testator knew what he was doing and that the testator
acted freely so that we have a document that reflects testator intent
iii. Protective function Protects the testator to ensure that the will is what he wants
iv. Channeling function Makes wills all take same form so that theyre easy to
identify and so that testators have a functional safe harbor to ensure effective wills
2. UPC 2-502(a) Except as provided in (b), a will must be (1) in writing; (2) signed
by the testator or by some other individual in the testators conscious presence and at
the testators direction; and (3) signed by at least two individuals each of whom
signed w/in reasonable time after witness sees the signing of the will as provided in
(2) or after the testators acknowledgment of that signature or the will
i. UPC 2-502(b) A will not complying with (a) is a holographic will even if it
isnt witnessed so long as the signature and material portions are in testators
handwriting
ii. UPC 2-502(c) Extrinsic evidence can establish testator intent that its his will
3. In re Groffman (H.C.J. Eng. 1969) [26 CB 204]: Testator executed his will in presence
of Black, who then attested. Then Black left, and Leigh witnessed the will. Wills Act
required all parties to be present during witnessing. Rule: Although the court is
satisfied that the document represents the testators intent, the statute controls.
21
4. Stevens v. Casdorph (W.V. 1998) [26 CB 205]: Testator executed will in bank; bank
manager then separately went and had two witnesses (who didnt witness the
execution) sign. Rule: The formalities statute specifically required signing the
will in the presence of both witnesses and their witnessing in his presence, so the
execution fails to satisfy that requirement.
i. Dissent: Majority slavishly worships form over substance and ignores the spirit of
the testamentary law through an illiberal and inflexible construction
ii. Dissent wants to adopt line of sight presence test, which would validate this will
b/c even though testator didnt see the witnesses, he was in their line of sight
5. The meaning of presence in will execution
i. Line of sight test Testator doesnt have to see the witnesses sign but he must be
able to see them if he were to look
ii. Conscious presence test Witness is in testators presence if testator can see or
hear witness sign or through general consciousness of events knows of signing
6. Attestation clause A clause at the end of the will reciting that the witnesses saw the
testator execute the will
i. Makes out a prima facie case that the will was duly executed (and thus rules out
need to recall witnesses to testify about the events of execution)
ii. Always add a self-proving affidavit, which is a stronger attestation clause that will
rule out any questions as to the formalities of signing the will
7. Self-proving affidavit Notarization by testator and witnesses that the will has been
duly executed; such an affidavit proves in court that the will has been duly executed
i. UPC 2-504(a) Allows a combined attestation clause and self-proving affidavit
ii. UPC 2-504(b) Any will may be made self-proving by adding, after execution
and attestation, a separate self-proving affidavit of testator and all witnesses
iii. UPC 3-406 Self-proving affidavit creates conclusive presumption of
compliance with signature requirements and a will cant be contested on this
ground
8. Purging statutes
i. Estate of Parsons (Cal. Ct. App. 1980) [27 CB 211]: Testator executed will with
three witnesses, two of whom were takers under the will. One of the takers
disclaimed after the will was offered for probate. Contestants urge that there
werent enough competent witnesses. Rule: Probate Code section 51 requires
two competent, meaning disinterested, witnesses at the time of execution. A
witness disclaimer, even though it dates back to the time of execution, occurs
after execution and thus fails to turn an interested witness into a
disinterested one.
a. Probate Code 51 voided to the extent that an interested witness receives
more under the will than he would under an intestacy statute
b. That many states have adopted broader purging statutes not change CA law
c. Court says the purging statute overrules the disclaimer (so that the disclaimer
is ineffective), which is not in line with testamentary intent b/c as a result of
the disclaimer, one of testators chosen beneficiaries will not take or take less
ii. Some purging statutes expunge the entire gift to an interested witness
iii. UPC 2-505 Any person generally competent to be a witness is act as witness
to a will and no will provision is invalid b/c will is signed by an interested witness
22
(so long as there isnt undue influence) (rule makes sense b/c most witnesses
arent even aware of the contents of the wills they sign)
iv. Purging statutes are cures to improper execution and save wills from total voiding
9. The signature requirement all wills are required to be signed
i. Signing by the testator must precede witnessing (in order for attestation to be true)
ii. Use of nicknames and marks other than a formal signature are discouraged b/c
they open the door to challenge on grounds such as informality of signature
iii. Testators who need assistance signing raise problem of assuring that the testator is
actually signing of his own volition and not just holding a pen while another signs
iv. In re Pavlinkos Estate (Pa. 1959) [29 CB 220]: Husband and wife had identical
wills drawn up, leaving each other as their main beneficiaries. Lawyer screwed
up and had each sign the others will, which attested that the proper party was
signing. Rule: Neither will can be probated because each purports to be a
document different than what the testators were signing, while the Wills Act
requires the testator to sign his own will.
a. Court refuses to rewrite the wills to conform them to the signatures b/c to do
so would be using equity and justice in a particular case to basically eviscerate
the requirements of the Wills Act, at which point the Act becomes pointless
b. Court refuses to go beyond four corners of will
c. Parties executed mutual wills, which are mirror wills but substituting the
parties for each other, often signed by husbands and wives
v. In re Snide (N.Y. 1981) [29 CB 223]: Husband and wife mistakenly signed each
others mutual wills. Rule: Although each signed wrong will, its very
important that the wills had identical dispositive provisions. Each will is a
part of a testamentary scheme that can be understood only by looking
outside the will; the lower court was correct to reform each will
appropriately to correct the mistake.
a. On identical facts to Pavlinkos Estate, court comes out differently by
substituting names to effect testamentary intent rather than enforce rigid
formalities
b. Court makes clear that it can do so only after its satisfied theres no fraud
vi. Prospectively, its unclear which approach courts will use testamentary intent or
formalities
10. Safeguarding of wills many options available to testator:
i. UPC 2-515 Allows procedure for depositing will in court for safekeeping, a
process also allowed by a few other courts, but rarely used
ii. Best option is to leave w/law firms safe deposit box, but some states prohibit this
b/c it amounts to solicitation of future business, which is an ethical violation
iii. Worst option is to send home w/testator b/c hell be tempted to amend, revoke,
etc. by simply writing through the document, thus creating more confusion
iv. Goal of safeguarding will is to assure that it can be found after the testators death
and also to prevent unintended changes by the testator or third parties
B. Curative doctrines
1. Common law Wills Act required conformity with all formalities to have valid will,
with almost any straying from the Act to invalidate the will
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2. Doctrine of substantial compliance Will is admitted to probate if theres clear and

convincing evidence that the purposes of formalities were served despite a defective
execution
i. In re Will of Ranney (N.J. 1991) [29 CB 226]: Will included self-proving affidavit,
but not an attestation clause, so when witnesses executed affidavit, they swore
that they had previously attested the will, which was untrue. Rule: The selfproving affidavit signatures do not comply with signature requirement of NJ
law, but doctrine of substantial compliance saves the will b/c the will
substantially complies with requirement of NJ law.
a. Court notes attestation shows witness properly saw testator sign (but can be
called during will contest to testify to this), while affidavit does that as well as
conclusively proving will was duly executed
b. Doctrine justified on grounds of absurdity to require conformance with Wills
Act when such insistence would invalidate will that is voluntary testator act,
which would thus frustrate the purposes of the formalities
c. Remedy is to treat the will as if it were conforming, rather than rewriting it
ii. Doctrine is the work of Professor Langbein and is only one of ways to deal with
problems in the process of execution
3. Dispensing statutes Empowers court to dispense with formalities of the Wills Act if
the proponent can prove testamentary intent by clear and convincing evidence
i. UPC 2-503 Harmless error rule Although document may not be executed in
compliance with UPC, it is treated as if it had been if the proponent establishes by
clear and convincing evidence that decedent intended to constitute the decedents
will, partial or complete revocation, or other alteration to will
ii. Dispensing statutes differ from substantial compliance b/c its much broader and
does not require substantial compliance to get there (i.e., you can get a valid
will without even having gone halfway)
a. Courts more likely to accept substantial compliance b/c it requires the testator
to have done the bulk of the work to comply with the Wills Act
b. Dispensing statutes much friendlier to testators b/c will allow court to probate
an imperfectly executed will even if it falls well short of the mark
c. Handwritten wills w/o signature may suffice if state recognizes holographs
iii. In re Estate of Hall (Mont. 2002) [30 CB 231]: Husband and wife execute joint will
which is notarized by lawyer, but not attested b/c no witnesses are available.
Husband dies. Rule: Under MTs enactment of the UPC dispensing statute,
this is a valid will b/c evidence shows that upon execution of this will,
husband had wife physically destroy and thus revoke a prior will, thus
husband intended the joint will to be his new will.
a. At issue is a joint will of two parties (bad idea), which is really only effective
against the first party as the second to die can always change the will after the
first party dies (cf. mutual wills, which are two separate, mirror wills)
b. Joint wills require both parties consent in order to modify
c. Court cant apply substantial compliance here b/c will is not even close to
substantial compliance requirement necessary to trigger that curative doctrine
C. Holographic wills
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1. A holographic will is handwritten and signed by the testator w/o attesting witnesses
i. Idea is that handwriting requirement provides a proxy for evidentiary proof that
its testator intent and thus precludes probate of a forged document
ii. Some states also require that the holograph contain handwritten date
iii. Signature can appear anywhere in the document, but if its not at the end, it raises
questions of whether the decedent intended it to be the signature for the will
iv. Lots of problems b/c beyond evidentiary function, unclear if other purposes of the
formalities are met with holographic wills
2. Kimmels Estate (Pa. 1924) [31 CB 237]: Father handwrote and signed as Father a
letter to children indicating that if anything happened to him, some money in a bank
account went to the children. Father died the same day. Rule: The language of the
letter (if enny thing happens) combined with fact that letter makes a gift of
property creates the testamentary intent implied in every will. The informal
character of the letter doesnt prevent it from being probated as a holographic
will, and the gifts made in the letter are testamentary.
i. Signing letter as Father didnt defeat the holographic will b/c it answers all the
purposes of the Wills Act and wouldve been way decedent signed letters to sons
ii. Conditional wills like this are generally treated as being effective if the testator
dies, regardless of the cause of the death
3. Requirement that the will be written in the testators hand
i. 1st generation (common law): Entirely written, signed, and dated (so that a
partially typed, partially handwritten document fails as both a formal will and a
holographic will)
ii. 2d generation (1969 UPC): Only signature and material provisions of
holographic will must be handwritten
a. Courts ignored typewritten parts and determined from just handwritten portion
whether there was enough there to be a will
b. Courts struggled with what were material provisions and how to deal with
partially typewritten material provisions
iii. 3d generation (1990 UPC): Only signature and material portions of holographic
will must be handwritten, thus allowing a lot of boilerplate typewritten language
a. Allows courts to look at extrinsic evidence, such as the typewritten language,
to determine testamentary intent
4. In re Estate of Kuralt (Mont. 2002) [32 CB 245]: Decedent maintained residence in MT
with mistress. He wrote a letter bequeathing everything in MT to her, executed a will
that didnt mention this, inter vivos transferred some of the land to her, and then
wrote her telling her he intended to have lawyer transfer rest of MT property to her.
He died before this happened. Rule: The last letter was an effective holographic
codicil to decedents formal will, with sufficient testamentary intent highlighted
by the decedents use of the word inherit.
a. A codicil is a testamentary instrument that amends, but doesnt replace, a will
5. In states that also have dispensing power, an effective holographic will can be
something as simple as a writing with containing authors testamentary intent
II. REVOCATION OF WILLS
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A. Revocation by writing or physical act

1. All states permit revocation of existing will by a subsequent writing executed in
accordance with testamentary formalities or destruction of the existing will
i. UPC 2-507(a) Will is wholly or partially revoked by execution of new will
revoking it or a part thereof expressly or by inconsistency; or by performing a
revocatory act on the will w/intent and purpose of revoking it (or directing
another to do the same)
a. Revocatory acts including burning, tearing, or obliterating the will all
physical acts of violence
b. A revocatory acts affects the entire will whether the revocatory act touches
any of the words on the will
c. Some states permit partial revocation only by testamentary document
ii. UPC 2-503 Also permits harmless errors w/r/t will revocation
iii. A new will that complete disposes of the estate is treated as revoking a prior will
by inconsistency, but a new will doesnt make a complete disposition of the
testators estate, it is treated as an amending codicil rather than revoking prior will
iv. Revoking a codicil reinstates the prior will (rather than revoking the entire will)
2. Harrison v. Bird (Ala. 1993) [34 CB 253]: Decedent executed a will, but then asked
attorney to physically destroy it. Attorney tears it up and mails pieces to decedent.
Decedent dies, and copy of will is put up for probate. Rule: Evidence establishes
that decedent had her will before death and fact that it wasnt found creates
presumption that she destroyed will. Proponent bears burden of showing that
the absence of the will is not from testators destruction thereof.
3. A lost will or one destroyed w/o testator consent can be probated upon proof of the
contents thereof through copies of the will or by other clear and convincing evidence
4. Thompson v. Royall (Va. 1934) [34 CB 255]: Testator instructed her lawyer to destroy
will, but instead, they kept it for future purposes and put message on back (signed by
testator) that the will was null and void. Rule: The writing fails as a testamentary
revocation of the will and also as a physical act cancelling the will b/c if a will
may be revoked by writing on the back, it can be revoked by writing on a
separate sheet of paper, which the Wills Act prohibits.
i. Court agrees that its clear intent of testator is to revoke the will
ii. Reasoning is that any act that doesnt deface, mutilate, or destroy the will could
be done on a separate sheet of paper and thus has the same effect, neither of
which revokes by physical act a will
iii. Case comes out all wrong based on bad attorney advice (e.g., if testator had
written the message as well as signed, it wouldve been a holographic codicil and
thus wouldve formally revoked the will), but compounded by fact that court
takes very formalistic approach to formalities (despite testators intent)
B. Dependent relative revocation and revival
1. Doctrine of dependent relative revocation If testator purports to revoke will based
on mistaken assumption of law or fact, revocation is ineffective if the testator would
not have revoked had he known the truth
i. Prototypical case is destruction of old will based on incorrect belief that new will
is valid doctrine steps in to revive the old will from revocation
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2.
3.
4.
5.
ii. Courts typically only invoke DRR where there is (1) an alternative plan of
disposition that fails; and (2) mistake is recited in the terms of the revoking
instrument or established by clear and convincing evidence
iii. Will says $50K to C, $50K to B, remainder to D. Codicil that strikes the gift to
C (partial revocation) and inserts $100K to B might be treated as a mistake if
testator intended Cs share to pass to B (doctrine might step in here)
LaCroix v. Senecal (Conn. 1953) [36 CB 260]: Testator executed will, and then
executed codicil that substituted a residuary clause referring to her nephew both with
his nickname and legal name. A witness to the codicil triggered a purging statute
defeating a gift in the original will. Rule: DDR has long been accepted in CT, and
there is no room for doubt that the testator here was executing a codicil to make
a minor change not to disinherit a witness. Thus, when the codicil voided a gift
in the original will, the conditional intention of the testator was rendered
inoperative and the gift under the will remained valid.
Estate of Alburn (Wis. 1963) [36 CB 264]: Testator executed wills in 1955 and 1959.
Testator destroyed 1959 will on mistaken belief that revocation of it would revive the
1955 will. Rule: Court applies DDR based on evidence of testators mistaken
belief of the effect of revoking the 1959 will b/c the intent is to die testate, while
revocation of 1959 will would leave the testator intestate.
Revival occurs in situations with more than one will and one is revoked
i. English rule: revocation of 2d will (which revoked 1st will) reinstates 1st will
ii. Most American jurisdictions rejects English rule b/c its confusing and requires
you to wait until testators death to determine which will is the effective one
iii. UPC 2-509(a) If Will #2, which revoked Will #1, is subsequently revoked by
revocatory act, Will #1 remains revoked unless it is revived; Will #1 is revived if
circumstances of revocation of Will #2 or testators contemporaneous or
subsequent statements show testator intended Will #1 to take effect as executed
iv. UPC 2-509(b) If Will #2, which partly revoked Will #1, is thereafter revoked
by revocatory act, revoked part of Will #1 is presumed to be revived unless
testator did not intend for revoked part of Will #1 to take effect as executed
v. UPC 2-509(c) If Will #3 revokes Will #2, which revoked Will #1 or any part
thereof, Will #1 or the relevant part remains revoked unless it is revived; Will #1
is revived if it appears from Will #3 that testator intended to revive Will #1
Revocation by operation of law: change in family circumstances
i. In some states, divorce revokes any provision in a will for divorced spouse
ii. In other states, revocation only if divorce is accompanied by property settlement
iii. UPC 2-804 Applies also to nonprobate assets Except as otherwise expressly
provided in the particular instrument, divorce or annulment revokes any revocable
disposition or appointment of property made by a divorced individual to his
former spouse, and severs any joint tenancy relationship between the parties, with
divorced spouse (and her relatives) treated as if it had disclaimed
a. Relatives of surviving spouse also treated as if they had disclaimed
iv. Marriage after will execution Most states give new spouse an intestate share
(elective share) unless it appears that omission was intentional or new spouse
provided for in the will or in a will substitute
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v. Birth of child after will execution Almost all states have pretermitted child
statute that gives child not provided for in will share of parents estate
III.COMPONENTS OF A WILL
A. Integration of wills
1. Doctrine of integration All papers present at time of execution, intended to be
part of the will, are a part of the will
2. Usually pretty straightforward if documents are bound or if there is some internal
coherence, but can be problems where there is no internal coherence
B. Republication by codicil
1. Doctrine of republication by codicil A will is treated as reexecuted (republished)
as of the date of the codicil
2. Can have very broad consequences, e.g., Will #2 revokes Will #1, Codicil to Will
#1 executed, with result being that Will #1 is republished and Will #2 is revoked
by implication
3. Republication is not applied automatically, but only where updating the will
carries out the testators intent
4. Cf. incorporation by reference: republication by codicil only applies to a prior
validly executed will, while incorporation by reference can incorporate into a
valid will language or instruments that have never been executed
C. Incorporation by reference
1. UPC 2-510 Any writing in existence at the time of a wills execution may be
incorporated by reference if the will manifests this intent and describes the writing
sufficiently to incorporate its identification
2. UPC 2-513 A will can refer to a written statement/list of property disposition
not specifically disposed of by the will (except for money); it must be signed by
the testator and must describe the items and devisees with reasonable certainty;
and it can be prepared before or after the will and can be modified after the will
(and may be a document with no significance aside from its effect on the will)
3. Clark v. Greenhalge (Mass. 1991) [37 CB 273]: Testators will provided that all
property would go to Greenhalge except that specifically listed on a memo, but
also left what look like disposition instructions in a separate notebook not named
in the will. Codicils were executed after the notebooks came into existence. Rule:
Testator retained the right to modify her will without formal amendment of
the will by changing the memorandum, which could be understood to
encompass the instructions in the notebook. The dispositions in the notebook
are incorporated by reference by republication through the codicils.
i. Without the codicils, the notebook couldnt be incorporated by reference b/c it
didnt exist at the time of the original execution of the will
ii. If the notebook had been signed, it couldve been incorporated by reference
under UPC 2-513 even if the notebook was written after the will and there
had been no execution of the codicils.
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4. Johnson v. Johnson (Okla. 1954) [38 CB 279]: We have a typewritten will that was
never signed. At the bottom is a handwritten addition that is executed. Rule: The
will is not properly executed, but it is still a will because of its testamentary
character. The handwritten text is a holographic codicil, and through
republication by codicil, it cures any execution defects in the will and
incorporates the will and codicil as one.
i. Outcome is that holographic codicil incorporated by reference the prior will
and republished and validated the prior will as of the date of the codicil
ii. Dissent: A codicil cant validate a will that was never originally signed
iii. Better treatment is that the testator dies partially intestate leaving only a
partial holographic will (the original will having no effect)
iv. Robinson doesnt think republication helps here b/c you need a valid will
D. Acts of independent significance
1. UPC 2-512 A will may dispose of property by reference to acts/events that
have significance apart from their effect on dispositions made by will whether
they occur before or after execution of will or testators death
2. General idea is that beneficiary or property designations are identified by acts or
events having lifetime motive and significance apart from the will, gift will be
upheld under the doctrine of acts of independent significance
3. Where incorporation by reference are like a snapshot, the doctrine of acts of
independent significance are like a moving picture that can keep changing
4. While acts have to have independent significance and not be testamentary, they
can depend on the testamentary acts of others (which are independent of the
testator), e.g., Sarahs will leaves all residue to a charitable trust established by
will of her brother Barney will work b/c of acts of independent significance
IV. CONTRACTS RELATING TO WILLS
A. Contracts to make a will
1. Contracts to make a will are valid, and if the testator dies without making a will as
per the contract, the other party may sue the estate in contract for breach
(although any unconforming will executed is still probated)
2. Many states require these contracts to conform to Statute of Frauds
3. UPC 2-514 Contract to make will/devise, or to revoke a will/devise, or to die
intestate, can be established only by (1) provisions of a will stating material
components of contract; (2) express reference in a will to make such a contract
and extrinsic evidence proving the contracts terms; or (3) a writing signed by the
decedent evidencing the contract (though the execution of a joint or mutual will
does not create a presumption of a contract not to revoke the will(s))
B. Contracts not to revoke a will
1. Questions typically arise w/regard to joint wills and mutual wills
i. Joint will A single will for two people, which can be probated twice
ii. Mutual will Separate wills for two people with reciprocal provisions
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iii. Most courts hold execution of such will not give rise to presumption of
contract, except a beneficiary ousted under by modification of a joint will
after death of one spouse may get contract remedies if he can show that the
joint will was intended to be a contract between the parties
2. Example: T and A contract for T to leave estate to A in return for A caring for T.
T executes will in As favor. A changes his mind, and T rescinds contract.
Result? A takes under the will (will only revoked by testamentary act or
revocatory act, but not by rescission of contract), though Ts intestate heirs may
seek a constructive trust (but not a contract remedy as the contract was rescinded).
3. A contract not to revoke is breached if a party dies not leaving a will in
conformity with the contract, typically by an affirmative act changing the will
4. Via v. Putnum (Fla. 1995) [CB 290]: Decedent executed mutual will and later
remarried after first wifes death, but didnt amend to provide for new wife. Wife
took elective share, but residuary claimant children argued that there was a
contract and they claimed as creditors with higher priority than wife. Rule: Any
contract in favor of the children contained an implied limitation such that if
decedent remarries, the subsequent wife would have right to elect against will
and to the detriment of the children.
i. Court wants to ensure that surviving spouse is protected through elective share
ii. To hold for children would be to amend elective share statute to insert
exception that children under former will collect before surviving spouse
REVOCABLE TRUSTS AND PLANNING FOR INCAPACITY

I. REVOCABLE TRUSTS
A. Introduction
1. A typical inter vivos trust is created through a deed or declaration of trust where
settlor transfers legal title of property to another person (the trustee) pursuant to
writing where settlor retains power to revoke, alter, or amend the trust and right to
trust income during life (deed if third-party is transferred title as trustee)
i. Equitable title in an inter vivos trust rests with the beneficiary of the trust
ii. Trustee owes fiduciary duties of loyalty and prudence (and a host of related
subsidiary obligations such as the duty to make an accounting) to the beneficiary
iii. If trustee is sole beneficiary of trust, then the legal and equitable titles merge and
no trust is formed b/c there is nobody to hold the trustee accountable for breach
2. Farkas v. Williams (Ill. 1955) [42 CB 299]: Farkas purchased stock as trustee for
another, but the deed of trust allowed Farkas to retain all lifetime dividends as well as
power to revoke the trust. The corpus passed to the beneficiary at Farkas death.
Rule: A valid inter vivos trust was created b/c the settlor intended some present
interest to pass to the beneficiary (fiduciary duties as well as beneficiary interest
to inherit the property). Thus, this is non-testamentary and need not conform to
the Wills Act formalities.
i. Importantly, the deed of trust bound Farkas to act as trustee, so he owed particular
fiduciary duties and did not continue to owe the property absolutely (court has
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hard time finding this, ultimately says there are lots of formalities so that it looks
like we shouldnt be worried about fraud)
ii. Inter vivos trust transfers allow the settlor to control during his lifetime as well as
after his death by choosing the beneficiary (its a form of will substitute)
3. Creation of trust requires funding the trust and naming the beneficiaries
i. Beneficiaries may be designated by class but has to be determinate (e.g., my
grandchildren is valid, but my friends is invalid)
ii. Trusts need not be funded immediately, but there is no trust in existence until
there is a res in the trust for which the trustee is responsible to the beneficiary
4. Creditors rights cant use inter vivos trusts to avoid the claims of creditors at death
i. General rule: During settlors life, creditor can compel the trustee to satisfy
settlors debt to the extent the settlor can compel trustee to distribute trust assets
ii. State St. Bank & Trust Co. v. Reiser (Mass. App. 1979) [43 CB 308]: Reiser settled
trust with stocks. He borrowed $75K from bank. All agree that bank could
access trust assets during Reisers life. Reiser dies. Rule: At settlors death,
beneficiaries become vested in trust property. However, where person places
property in trust and reserves right to amend or revoke, creditors may, after
his death, reach into the trust (after depleting the estate) to the extent of
funds over which settlor had control during life.
a. Different treatment than other nonprobate assets like insurance b/c at death,
those pass by operation of law and creditor cant touch them
iii. Example: X borrowed $1 million from Bank. At death, X has self-settled trust of
$400,000 and probate estate of $900,000. Bank must first collect fully from the
probate estate, but then can reach $100,000 of the trust assets.
B. Pour-over wills/trusts
1. Pour-over wills are used to accomplish unified administration with the will and all
probate assets naming the pour-over trust as the beneficiary and the decedent just has
to decide beforehand who will benefit from the pour-over trust
2. A pour-over will depends on the doctrine of incorporation by reference of the trust or
on the doctrine of acts of independent significance
a. Incorporation by reference works where trust exists at time of will execution and
so long as there arent any amendments to the trust
b. Acts of independent significance works where trust is in existence at death
(regardless of when created) and is funded must be funded to demonstrate that
there was purpose separate from the testamentary scheme
3. Questions regarding validity of these instruments was validated in the Uniform
Testamentary Additions to Trust Act (UTATA), which has been incorporated in every
jurisdiction and is incorporated into the UPC
4. UPC 2-511(a) A will may validly devise property into an established trust or into
a trust to be established either during the testators life or at the testators death if the
trust is identified in the testators will
i. UPC 2-511(b) Property devised to such a trust is held according to the terms
of the trust document including any amendments thereto after the testators death
ii. UPC 2-511(c) A revocation/termination of the trust before the testators death
causes the devise to lapse
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5. Clymer v. Mayo (Mass. 1985) [45 CB 313]: Wife creates trust with husband as
beneficiary, then pour-over will. They then get divorced. Wife dies. Rule: Although
state statute only revokes ex-spouses share of will, a pour-over trust of the kind
employed here substitutes for a will and thus the statute also applies and the exspouses interest in the trust is revoked.
i. UPC 2-804 wouldve revoked the ex-spouse designation even in a trust
C. Advantages of revocable trusts
1. Property management by the trustee fully in favor of the beneficiary
2. A revocable trust has no advantages in terms of gift, estate, or income taxes
3. Allows avoidance of probate to the extent of assets contained within the trust
i. Disadvantage is that creditors can continue to assert claims toward the trust,
whereas in probate there is a very short claims bar date
ii. Also allows passage of real property without need for ancillary probate
4. Avoids restrictions protecting family members such as elective share
5. Avoids restrictions on testamentary trusts
i. Testamentary trusts are trusts created by a will that comes into being by an order
of the probate court, which is oftentimes supervisor of the trust
ii. Testamentary trusts require trustee to account to the court and is generally subject
to court supervision
6. Allows choice of law provision so that it can exist in perpetuity if you choose the law
of a state that effectively has ended the rule against perpetuities
7. Avoids will contests
II. PLANNING FOR INCAPACITY
A. Durable power of attorney
1. A power of attorney appoints an agent (attorney-in-fact) to act on behalf of the
principal, but it lapses upon incapacity of the principal, so its not helpful here
2. A durable power of attorney survives incapacity and is permitted by UPC 5-501 to
5-505 and laws in every state
i. Principal can terminate agency relationship at any time so long as hes competent
ii. Durable powers end when the principal dies, so holder can make no transfers after
the principals death and thus cant avoid probate
iii. Durable powers terminate if trustee dies unless principal names successor agent
3. Franzen v. Norwest Bank Colo. (Colo. 1998) [74 CB 347]: Rule: Power of attorney
need not indicate that attorney-in-fact has authority to deal with a particular
trust so long as it evidences an intention to authorize the agent to make decisions
concerning the principals interests in trusts generally.
B. Directives regarding health care and disposition of the body
1. Advance directives take three basic forms
i. Living will, or a common form Medical Directive, hat either generally or by
hypothetical explains how one wants to be treated in end-of-life situations or in
the event of incompetence
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ii. Proxy directives (health care proxy or durable power of attorney for health care),
which designates an agent to make health care decisions for the patient
iii. Hybrid or combined devices incorporating features of both that specify treatment
preferences while also assigning an agent to make substituted decisions
2. Disposition of the body want to make clear what you want to happen to your body
and your organs b/c youll be dead by the time this comes around
CONSTRUCTION OF WILLS
I. MISTAKEN OR AMBIGUOUS LANGUAGE IN WILLS
A. Traditional approach: no extrinsic evidence, no reformation
1. Most jurisdictions continue to adhere to the plain meaning and no reformation rules
i. Plain meaning rule Plain meaning of words of will cant be disturbed by
extrinsic evidence that another meaning was intended (but under personal usage
exception, extrinsic evidence admissible to show testator always referred to a
particular person or thing by an idiosyncratic name)
ii. No reformation rule Reformation, equitable remedy that corrects mistaken terms
in will to conform to testator intent, is prohibited on grounds that courts job is to
interpret words used by testator not the words hes purported to have intended to
2. Mahoney v. Grainger (Mass. 1933) [46 CB 366]: Testator wrote will with residuary
clause to her heirs at law. Drafting lawyer wanted to argue that testator had told him
to draft it so that her many cousins, not her sole heir at law (an aunt), would share the
residuary. Rule: The fact that drafter didnt draw up what testator intends isnt
grounds for reformation at court must enforce will as written (so only aunt
inherits). Only where testamentary language is unclear can evidence be
introduced regarding how testator used the language.
i. Case shows its important to get it right many of these errors could be corrected
with careful drafting and thinking through the situation
3. Moseley v. Goodman (Tenn. 1917) [CB 368]: Rule: Applies personal usage
exception to plain meaning rule where testator left property to Mrs. X, whom
she has always referred to as Mrs. Y. Court allowed extrinsic evidence that
when testator referred to Mrs. Y, she actually meant Mrs. X.
4. Patent ambiguities appear on the face of the will, while latent ambiguities appear
when trying to apply the will important thing to know is whether court will allow
admission of evidence to correct a mistake
B. Slouching toward reformation: correcting mistakes without reforming wills
1. Arnheiter v. Arnheiter (N.J. Sup. Ct. 1956) [45 CB 372]: Testator devised house by will
but used wrong house number. Proponent sought to correct mistake. Rule: Court
has no authority to correct an obvious mistake, but can invoke other doctrines to
step in. Here, uses doctrine that where specifics of a description dont fit any
property, less essential properties can be dropped where the remainder of the
description fits.
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2. The court reaches the right result, but through a variety of doctrines that try to make it
look like theyre doing anything but reforming the will
C. Openly reforming wills for mistake
1. Erickson v. Erickson (Conn. 1998) [47 CB 374]: Testator executed will without
providing for future wife, and then two days later gets married. CT statute provided
that marriage revokes a will that does not provide for the contingency of marriage.
Proponent tried to introduce extrinsic evidence that testator purposely didnt intend to
include wife. Rule: Trial court improperly excluded evidence that scrivener
forgot to include clause showing testator intent to exclude wife. Where a
scriveners error leads testator to execute will on belief that it will be valid after
testators marriage (2 days later), extrinsic evidence admissible to establish
testator intent.
i. That he gets married 2 days later does show some intent that he not want wife
provided for under the will (he knew at will execution that hes getting married)
ii. Court goes beyond correction of mistake here to openly except extrinsic evidence
regarding testator intent, while other courts continue to hold line re: reformation
2. R(3d) Wills 12.1 Donative document, though unambiguous, may be reformed to
conform to donor intent if clear and convincing evidence establishes that (1) mistake
of fact or law affected specific term of document; and (2) what donors intention was
II. DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR
A. Introduction
1. Beneficiarys failure to survive testator means that gift fails (it lapses) unless the
testator specifically provides otherwise, with this treatment at common law:
i. Specific or general (money) devises enter the residue
ii. Residuary devise with one residuary fails, then the heirs take by intestacy (as if
there were no residuary clause)
iii. Residuary devise with multiple residuary takers and only one share fails, only that
share enters intestacy (no residue of a residue rule)
iv. If one member of a class to whom a devise is given predeceases, remaining
members of the class share the lapsed devise (it doesnt enter residue)
v. Void devise (e.g., devise to a pet) same rules as for lapsed devises
2. Estate of Russell (Cal. 1968) [48 CB 388]: Testator left bulk of estate to her caretaker
and her dog. Contestant argues that 1/2 the gift to dog is void and thus should pass by
intestacy of law to heirs. Rule: Theres no ambiguity that 1/2 the estate was left to
the dog, and as a void gift, the dogs share passes by intestacy to the heirs.
i. Appears way out of line with testator intent as intent was to provide for dog
ii. Testator clearly didnt want to benefit heirs b/c he had already left two small
specific gifts to these heirs, i.e., theyd already been provided for under the will
iii. If court had rejected no-residue-of-a-residue rule, the dogs 1/2 couldve reentered
the residue where it wouldve passed to the caretaker
3. UPC 2-604(b) Rejects the no-residue-of-a-residue rule so that any failed share of
the residue reenters the residue (although most well-drafted wills already do this)
4. Lapse and nonprobate assets
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i. POD accounts beneficiary does not have to survive benefactor, although UPC
6-212, 6-307 changes this for POD bank accounts and brokerage accounts
ii. Revocable trusts No requirement of survivorship on the part of beneficiary w/r/t
to a remainder of the trust
iii. Joint tenancies No lapse b/c automatically transfers to other joint tenant
B. Antilapse statutes
1. Antilapse statutes dont prevent a lapse, but rather substitute other takers for the
lapsed gift, typically requiring particular relationship between the lapsed taker and the
testator and that the lapsed taker have survivors (default rule so testator can avoid it)
2. UPC 2-605 If devisee is a grandparent or lineal descendant of grandparent of
testator is dead at time of will execution (a void gift) or fails to survive testator (or
treated as if he predeceased testator) (a lapsed gift) issue of deceased devisee who
survive by 120 hours take place of decease devisee
i. If all of same degree of kinship to the devisee, they take equally
ii. If of unequal degree of kinship, those more remote degree take by representation
iii. One who is devisee of class gift, if he had survived testator, is treated as devisee
for purposes of this statute regardless of whether death occurs before or after will
execution (i.e., a void gift to a class member can trigger the antilapse statute)
iv. Antilapse statute applies if theres disclaimer, simultaneous death, or slayer stat.
v. UPC 2-603 Use of words of survivorship are not, in the absence of additional
evidence, sufficient indication of intent contrary to application of antilapse statute
3. Allen v. Talley (Tex. Ct. App. 1997) [49 CB 393]: Will gave to my living brothers and
sister to share and share alike. Issue is whether this is survivorship language so as
to avoid applicability of antilapse statute. Rule: These are words of survivorship as
to construe them as descriptive (i.e., not words of survivorship) b/c law already
does not recognize devise to a person dead at the time of wills execution. Antilapse statutes does not apply and only siblings who have not predeceased testator
may take.
i. UPC 2-603 rejects the majority rule of this case that use of survivorship words
is a signal that testator wants to preclude application of antilapse statute
4. Best way to avoid predecease/lapse problem is to provide substitute takers
5. Lapsed versus void gifts and treatment under antilapse statutes
i. A lapsed gift occurs if taker was alive at time of execution of will, but
predeceases testator all antilapse statutes cover this situation
ii. A void gift occurs if the taker is dead at the time of will execution (its void b/c
you cant devise to a person already dead) some antilapse statutes, including
UPC 2-605, apply to this situation
C. Class gifts
1. Class gifts do not lapse and thus do not trigger antilapse statute
i. Class takers are determined at the time of the wills probate so that if there are any
living members of the class, none of the class gift lapses
ii. Class gift arises if testator uses language demonstrating that he is group-minded
(but note that if you name specific people, youre going to be treated as if youre
making specific gifts)
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2. Dawson v. Yucus (Ill. App. Ct. 1968) [49 CB 400]: Desiring to transfer farmland she
inherited from her husbands side of the family back to that side of the family, testator
provided that two nephews on that side would each get 1/2 of her farmland. One of
the nephews predeceases, and the other argues class gift so it doesnt lapse. Rule:
Although there is an exception that naming particular persons doesnt defeat a
class gift if the testator is simply naming members of a class and intends to
retain a survivorship element, testators intention to return the farmland to the
other side of the family (rather than lapsing to residuary takers on her side)
doesnt make a class gift.
i. Court gets bogged down in class gift, without effecting testator intent that the
property return to the other side of the family
ii. Judges could have effectuated testator intent had they been sensitive to language
3. Antilapse statutes can apply to a class gift if the statute doesnt prohibit its
applicability to class gifts, and UPC 2-605 applies equally to class gifts
III.CHANGES IN PROPERTY AFTER EXECUTION OF WILL
A. Ademption by extinction
1. Bright line doctrine that provides that if the property devised by a specific gift is not
owned by the testator at the time of her death, the gift is adeemed by extinction
i. 1969 UPC 2-608 adopted the identity theory of ademption
ii. UPC 2-606 Adopts the intent theory of ademption but creates a presumption
in favor of ademption by placing burden on party seeking to avoid ademption to
show that ademption is inconsistent with testators intent
a. UPC 2-606(a)(5) Specific devisee has right to proceeds of specific
adeemed gift
b. Also contains a set of exceptions borrowed from the 1969 UPC for what
devisee can get in light of adeemed gift: remaining balance on purchase price
of specific property sold, condemnation award for specific property, insurance
for specific property
2. Ademption does not apply to general, demonstrative, or residual devises
i. Specific devise: Blackacre to X
ii. General devise: $10,000 to X
iii. Demonstrative devise: A general devise payable from a specific source ($10,000
to X to be paid from sale of GM stock), but if the specific source is not there or
insufficient to satisfy the devise, other assets must be sold to satisfy it
iv. Residual devise: Rest and remainder to X
3. Two theories of what happens after an ademption
i. Traditional identity theory: If specifically devised item is not in testators estate,
the gift is extinguished
ii. Intent theory of ademption: If gift is adeemed, beneficiary may be entitled to cash
value of item if beneficiary can show this is what the testator wanted
iii. Wasserman v. Cohen (Mass. 1993) [51 CB 406]: Trust left apartment building to
plaintiff as remainder, but apartment building was not in trust at time of settlors
death (it had never been conveyed to the trust). Plaintiff sought claim to proceeds
of apartment sale, which had been put into the trust. Rule: Although this
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involves a trust, rather than a specific devise in a will, ademption by

extinction applies to this nonprobate asset. Because it was the testator that
failed to convey the apartment to the trust, court will not go behind that to
divine intention.
a. Important b/c court extends ademption doctrine beyond wills
b. Note that some courts will look behind the unavailability of estate to apply the
intent theory of ademption instead of the identity theory of ademption and
other courts yet have found ways around ademption altogether
B. Other miscellaneous changes in property
1. A stock split generally will, unless testator provides for otherwise, result in the
recipient getting the entirety of the stock so that the testators intent in giving a
certain value to the recipient is fulfilled
2. Satisfaction of general devises
i. Ademption by satisfaction If testator is a parent of beneficiary and after
execution of the will transfers to beneficiary property similar in nature to that
which is given in the will, theres a rebuttable presumption that gift is in
satisfaction of that given made by the will
ii. Similar to the doctrine of advancement under intestacy law, but does not apply to
specific bequests (which would be deemed adeemed by extinction if it had already
been given to the beneficiary)
iii. UPC 2-609(a) Intent of testator to adeem by satisfaction must be in writing, so
there is no presumption that a gift to a child is an ademption by satisfaction
3. Exoneration of liens
i. Common law rule: if will makes specific disposition of property subject to a lien
to secure a note on which the testator was personally liable, it is presumed (absent
contrary language in the will) that testator wanted the debt, like all other debts, to
be paid out of the residuary estate
ii. UPC 2-607 Specific devise passes subject to any lien thereon without any
right of exoneration, regardless of a general directive in the will to pay debts
(rejects the common law rule on fear that exoneration will deplete the residue in a
manner not in line with testator intent)
4. Abatement
i. Abatement operates like bankruptcy priorities, telling order of payment from
estate if the estate has insufficient assets to pay debts as well as all devises
ii. In absence of will instructions to the contrary, devises ordinarily abate in the
following order: (1) reduction of residuary devises; (2) reduction of general and
demonstrative devises; and (3) pro rata reduction of specific devises
iii. If probate assets are insufficient, creditors can attack assets in inter vivos trust
iv. Note that creditors dont include secured creditors b/c of extinction of the doctrine
of exoneration of liens
RESTRICTIONS ON POWER OF DISPOSITION:

PROTECTION OF SPOUSE & CHILDREN
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I. RIGHTS OF THE SURVIVING SPOUSE

A. Introduction to marital property system
1. Law of the state of marital domicile at death controls what surviving spouse gets
2. In community property state, we have presumptive equal ownership so surviving
spouse is assured of protection (there is room for separate property, but onus of
showing separate property is on party making this claim)
3. In separate property state, title drives ownership and elective share steps in to protect
the surviving spouse (though may not be as generous as community property)
4. Right of surviving spouse to support comes from many sources:
i. Surviving spouse benefits under Social Security if decedent got such benefits
ii. Private pension plans covered by ERISA which require that the surviving spouse
have a survivorship interest if the employee predeceases the spouse
iii. Probate homestead allowing surviving spouse access to the family home
a. Some states allow surviving spouse a life estate in the family home free of the
claims of creditors
b. UPC 2-402 $15K homestead allowance to surviving or children that is
superior to all other claims (in addition to that passing to by intestacy, will, or
elective share)
iv. UPC 2-403 $10K personal property set aside from unencumbered personalty
such as household furniture, furnishings, automobiles, appliances, and personal
effects (in addition to anything passing by intestacy, will or elective share)
v. Family allowance that court can award for limited time to support family (taken in
addition to anything else passing to the surviving spouse/children)
a. UPC 2-404 Allows a reasonable family allowance (limited to one year if
the estate is inadequate to pay creditors)
v. Rights of dower and curtesy have been rejected in almost all states
a. Dower Allows widow a life estate in 1/3 of husbands qualifying lands
(once inchoate dower attaches, prevents husband from alienating lands free
and clear of wifes dower interest)
b. Curtesy Allows widower a life estate in all of wifes lands so long as a child
was born of the marriage (even if the child doesnt survive)
5. Estate tax marital deduction and the dependency of women Congress tried to
equalize estate tax burden on common law property couples as community property
by giving generous estate tax deduction for transfers to a spouse, and currently law
has evolved to point where wife needs only a life interest in the property (usually
achieved through a qualified terminable interest in property trust (QTIP trust) where
surviving spouse given life interest in trust and settlor can dispose as he pleases
through use of the remainder)
B. The elective share
1. Elective share (or forced share) allows the surviving spouse the choice to either take
under the decedents will or to renounce the will and take a fractional share of the
decedents estate
i. Not necessary in community property states b/c spouse already takes 1/2 share
through acquisition of rights in community property
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ii. Elective share ensures that decedent cant disinherit a surviving spouse
2. Rationales for the elective share (oftentimes in tension w/one another)
i. Partnership theory Same idea that underlies community property that both
spouses are partners in the marital effort and should share in its fruits
ii. Support theory Spouses owe each other duties of support, which survive death
3. In re Estate of Cross (Ohio 1996) [54 CB 430]: Surviving spouse was committed to a
nursing home. Will provided for son from another marriage to take everything.
Appointed guardian of spouse claims elective share, which appellate court denies b/c
surviving spouse already fully cared for by Medicaid. Rule: Guardian was required
to claim elective share b/c surviving spouses eligibility for Medicaid required
her to claim all income to which she is entitled or else lose Medicaid eligibility,
thus the guardian was acting in her best interest. Wife entitled to elective share.
i. You cant disinherit a surviving spouse, even where the spouse is incompetent b/c
the state can appoint a guardian to exercise it on her behalf
ii. Some states require guardian to take elective share if its in wifes economic
interest, but most states require a totality of circumstances approach
4. In re Estate of Cooper (N.Y. Sup. Ct. 1993) [54 CB 433]: Gay couple lived in a marital
relationship but without the benefit of marriage. One of them dies and the other tries
to claim an elective share against the will which left most of the estate to a former
lover. Ruling: The elective share statute specifically covers only a surviving
spouse, and there is no equal protection problem b/c the statute survives rational
basis scrutiny (gays are not a protected class).
i. NY statute defined surviving spouse as a husband or wife survivor of marriage, so
it clearly turns on the marital relationship
ii. Though law denies gay marital rights, no EP protection b/c not protected class
C. Property subject to the elective share
1. If elective share only touches probate property, then decedent spouse can evade it by
putting assets into nonprobate vehicles (FL allows this by saying elective share
applies only to the probate estate)
2. Sullivan v. Burkin (Mass. 1984) [55 CB 439]: Testator settled trust with his primary
assets, with a remainder to the defendant takers. Testators will specifically indicated
that it sought to disinherit his surviving spouse. Spouse seeks an elective share
against the trust as an invalid testamentary disposition. Rule: The trust is not
testamentary and is a valid inter vivos trust. Prospectively, however, a surviving
spouse will have a right of elective share against an inter vivos trust settled
during the marriage.
i. Many states have followed Mass. lead of allowing a surviving spouse to elect a
share against an inter vivos trust (although some states require a showing of fraud
on the part of the decedent spouse)
ii. Bongaards v. Millen (Mass. 2003) [CB 442]: Rule: Surviving spouse may not
reach a trust settled by a third party for the benefit of the decedent spouse
b/c these assets were never in the estate to begin with and cant be brought
into the estate for elective share purposes.
3. Many other forms of nonprobate asset can still be used to defeat elective share:
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i. Life insurance decedent insured never enjoyed the right to proceeds of the
insurance policy so it makes sense that you cant elect against it
ii. Joint titling/POD arrangements Generally, so long as the jointly titled
beneficiary had a right to access the asset, the asset should be beyond the reach of
the surviving spouses elective share
4. Most state statutes clarify what is and isnt included in the estate against which the
elective share is taken
i. NY statute includes property insofar as the decedent had control over it
ii. DE statute includes all property that would be in the estate for federal estate tax
purposes, regardless of whether theres estate tax liability, thus tying it to the
federal estate tax scheme
iii. UPC changes to make it closer to common property by dividing all the property of
both spouses (so includes the probate estate and certain other nonprobate assets,
collectively the augmented estate) and then gives the surviving spouse a percent
a. UPC 2-202(a) Percentage that surviving spouse gets under the elective
share is a function of the length of the marriage.
b. UPC 2-204 to 2-207 Decedents augmented estate includes the probate
estate plus (1) value of nonprobate will substitute transfers other than those to
the surviving spouse; (2) value of nonprobate will substitute transfers to the
surviving spouse; and (3) value of surviving spouses net assets plus surviving
spouses nonprobate transfers to others
c. Elective share is calculated by multiplying elective share percentage against
augmented estate and subtracting value of assets already owned by the
surviving spouse as well as any nonprobate transfers to the surviving spouse
D. Waiver of the elective share
1. Most courts will enforce contractual agreements to waive the elective share so long as
there is full disclosure of the parties financial status
2. UPC 2-313(a) Surviving spouse may waive, by written contract or by waiver
signed by surviving spouse, in whole or in part, the elective share, homestead
allowance, family allowance, and exempt property
i. UPC 2-313(b) Waiver is invalid if surviving spouse proves (1) lack of
voluntariness; or (2) waiver was unconscionable when executed and before
waiver, she didnt get disclosure of finances, did not waive right thereto, and did
not have adequate knowledge of the finances
ii. UPC adopts the rule proposed in Uniform Premarital Agreement that generally
recognizes waiver so long as voluntary and theres sufficient financial disclosure
iii. Some waivers may be prohibited where spouse has a statutory duty to claim, i.e.,
in order to maintain eligibility under welfare programs
3. In re Estate of Garbade (N.Y. Sup. Ct. 1995) [56 CB 453]: Husband and wife entered
into prenuptial agreement where wife waived elective share as well as other other
rights in exchange for $100,000 in life insurance payout if husband died. Wife
subsequently tries to claim elective share. Rule: Although wife didnt take steps to
educate herself about the waiver, absent fraud or other misconduct, parties are
bound by such waivers and the absence of independent counsel will not itself
warrant setting aside the agreement.
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E. Rights of surviving spouse in community property

1. Applicable conflict of law rules
i. Law of situs controls disposition of immovables
ii. Law of marital domicile at death controls all personalty wherever located
iii. Law of marital domicile at death controls the surviving spouses rights
2. Widows election Involves will executed by husband devising all the community
property in trust to pay income to wife and then to others as remainder and requiring
wife to elect between surrendering her half of community property and taking under
the will
3. Moving from a separate property state to a community property state
i. Ownership of moveables is determined by the state in which the couple is
domiciled when purchased, so separate property remains separate property
ii. This can create unfairness b/c moving to the community property state allows
husband to retain his separate property while depriving wife of elective share
iii. Quasi-community property Device devised by some community property states
where separate property is as such during life, but after death, any separate
property of the decedent that would be community property had it been acquired
in a community property state belongs half to the survivor (doesnt apply to real
property, which is still controlled by law of situs)
a. It immediately becomes quasi-community property upon entering state
b. If separate property owner dies first, she has no right to devise her 1/2 share in
the quasi-community property (doesnt vest until the separate property owner
dies)
c. Some states apply quasi-community property upon divorce, but not death
iv. Ways to evade this treatment: transfer to trust; retitle as joint tenants; or have
propertied spouse make inter vivos gift to the nonpropertied spouse
4. Moving from a community property state to a separate property state generally,
moving to a separate property state doesnt change the nature of the community
property
5. Income tax treatment between community and separate property states
i. At death, entire value of community property steps up to value as of the date of
the decedents death (IRC 1014(b)(6))
ii. In a separate property state, the death of a joint tenant steps up only the basis in
the decedent joint tenants share of the property
F. Spouses omitted from a premarital will (pretermitted spouse)
1. Estate of Shannon (Cal. Ct. App. 1990) [58 CB 462]: Testators will provided his
daughter takes the entire estate and made clear that nobody else was to take under the
will. He remarries a dozen years later and then dies. Rule: Burden falls on the
beneficiary to demonstrate that the decedent intended to exclude the new wife;
the wills language about excluding other takers is general language that cant
be construed as intent to prevent an after-acquired spouse from taking.
2. UPC 2-301 If the surviving spouse married testator after testator executed his
will, surviving spouse is entitled to receive, as an intestate share, no less than the
value of the estate she would receive had the testator died intestate as to that portion
41
of the estate that is neither devised to a child of the testator born before the testator
married the surviving spouse (who is not a child of the surviving spouse) unless it
appears that the will was made in contemplation of the marriage, the testator
expressly intended it to be effective notwithstanding a future marriage, or testator
provided by spouse by transfer outside the will which from which can be reasonably
inferred was to be in lieu of a testamentary provision
3. Wife can always take an elective share instead b/c its a surviving spouse
II. RIGHTS OF ISSUE OMITTED FROM THE WILL
A. Protection from intentional omission
1. In all states except LA, child or other descendant has no statutory protection against
intentional disinheritance by a parent
2. Unless left to a surviving spouse however, disinheriting children often invites a will
contest, although still much easier to disinherit children than a spouse
B. Protection from unintentional omission
1. Azcunce v. Estate of Azcunce (Fla. Ct. App. 1991) [59 CB 475]: Decedent executed
will that provided for his spouse and three children. Decedent executed a codicil to
the original will, a fourth child was born, and then executed a second codicil (that did
not mention the fourth daughter). Fourth daughter sues for a share under the
pretermitted child statute. Rule: Daughter was a pretermitted child under Fla.
statute after the first codicil, but the second codicil (which republished by
reference the original will) demonstrated testator intent to disinherit daughter
b/c it didnt provide for her.
i. Case seems to come out wrong b/c daughter was probably not intentionally
disinherited but father just probably didnt think of her during 2d codicil
ii. Guardian ad litem for first three children who objected to 4th child taking
probably doing the right thing in terms of duties, but it exacts an emotional toll on
the family
2. Pretermitted child statutes
i. Follow either one of two forms: some protect only children born or adopted after
execution of will (UPC), while others also protected children alive when will was
executed
ii. UPC 2-302(a) Except as provided in (b), if testator fails to provide for his
children born or adopted after execution of the will, child receives share in the
estate as follows: (1) if no other child alive at time of will execution, child gets his
share as if the decedent had died intestate; or (2) if there are one or more children
alive at will execution and will provides for them, the after-born child shares in
only their portion of the devise
iii. UPC 2-302(b) (a) doesnt apply where it appears omission was intentional or
testator provided for omitted after-born child through nonprobate transfer
3. In re Estate of Laura (N.H. 1997) [60 CB 481]: Decedent executed will leaving
everything to his daughter and specifically disinheriting his two sons. After
decedents death, grandchildren of the two sons sued as pretermitted heirs on the
grounds that the will had to mention the two sons issues to exclude them. Rule:
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Under NH statute, reference to the two sons included reference to and therefore
intentional disinheritance of all the sons issue.
i. NH has a very broad statute that covers pretermitted children
ii. Under such a broad statute, do you have to execute a codicil each time a child is
born no you can make use of contingent shares to the children
TRUSTS: CREATION AND CHARACTERISTICS

I. INTRODUCTION
A. Parties to a trust
1. The settlor is the person who creates the trust
i. Inter vivos trust is created during settlors life, while a testamentary trust is
created by the settlors will
ii. Can be created either by declaration of trust (where settlor declares that he holds
certain property in trust) or deed of trust (conveyance to a 3d-party trustee)
iii. One person can be both the settlor and the beneficiary of the trust (but the trustee
must owe duties to someone other than herself, i.e., there has to be another taker
somewhere along the line, or the trust fails leaving the settlor with absolute title)
2. The trustee is the legal titleholder of the trust property
i. If settlor intends to create a trust but fails to name a trustee, the court will appoint
a trustee to carry out the trust (trust never fails for want of a trustee)
ii. Trustee owes the beneficiary fiduciary duties of loyalty, prudence, and a host of
subsidiary duties (the duty of prudence is an objective standard)
3. The beneficiaries hold equitable interests and can enforce rights as against the trustee
for breach of fiduciary duty
i. Beneficiaries can recover wrongfully distributed trust property (unless the
property comes into the hands of a bona fide purchaser for value)
ii. Breach of fiduciary duty is a personal liability against the trustee
4. Its possible for one person to be settlor, trustee, and beneficiary (although you would
need at least one other beneficiary in order for the trust not to fail)
5. Trust is especially useful b/c it allows settlor to affect behavior of beneficiaries
6. Trusts vs. resulting trusts vs. debts
i. Trust involves specific property separate from the trustees funds, while a debt
entails commingling of the debt with debtors other property and remains debtors
property until creditor can demand it
ii. Resulting trust is another form of equitable trust that comes into play only so long
as its necessary to transfer ownership from the party holding the property to the
party to whom the property should belong; arises in two situations:
a. Where express trust fails or makes an incomplete disposition
b. Where one person pays purchase price for property and causes title to be taken
in the name of another person who is not natural object of purchasers bounty
B. Creation of a trust
1. Intent to create a trust
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i. Words trust or trustee need not be used as the sole question is whether the
grantor manifested an intention to create a trust relationship
ii. Jimenez v. Lee (Ore. 1976) [61 CB 499]: Grandmother made two gifts to
granddaughter and her parents for sake of granddaughters education. Father
cashed out these assets to purchase some stock with himself as custodian, which
fail. Granddaughter argued that this was a breach of trust. Rule: A trust was
formed here where, although the word trust was not used, there was the
grantors intent to vest beneficial ownership in a third person. Thus, when
father bought stock with himself as custodian, he expanded his role beyond
trustee to that of custodian, a breach of fiduciary duty.
a. Although there is no explicit declaration of trust, a trust is formed b/c of
grantors conveyance was in trust for the benefit of the granddaughter
b. Granddaughter is entitled to an accounting and can also hold father personally
liable for the losses he made to the trust property
iii. Hebrew Univ. Assn v. Nye (Conn. 1961) [61 CB 504]: Decedent promised
contents of her late husbands library to university, attended state dinner
celebrating the gift, and executed memorandum saying shed turn books over to
the university. Decedent took efforts to pack books, but she died before shipping
them. Rule: This is an imperfect gift and not a trust. A gift that is imperfect
for failure of delivery is not transferred into a declaration of trust for no
better reason than it is imperfect for lack of delivery. Courts dont supply
conveyances where there are none.
a. On remand, trial court used doctrine of constructive delivery to effect a gift
b. Ultimately, theres no trust b/c of lack of intent, but the beneficiary ultimately
wins b/c of constructive delivery and the gift
2. Necessity of trust property
i. Creation of trust typically requires some kind of property, no matter how minimal
ii. Exception is that no res required for inter vivos trust if the settlor executes a pourover will under UTATA/UPC
iii. Unthank v. Rippstein (Tex. 1964) [62 CB 509]: Decedent wrote letter to plaintiff
saying that he would pay her $200 a month for the next five years. Plaintiff dies
three days later. Decedent tries to argue that the decedent intended to bind her
estate as trustee of trust for her benefit. Rule: There is insufficient certainty in
the language by which a court could declare a trust b/c not sufficient to show
an intention of the decedent to place his property in trust such that his
further dominion over it would be a breach of fiduciary duty.
a. Court holds that most that there was a declaration of intention to pay her
b. Theres no trust b/c no trust property need actual property or expectation
iv. Taxation of grantor trusts Excessive control or economic benefit for the
transferor will result in attribution of trust income to the transferor
a. Attribution means grantor pays tax on it even if the income goes elsewhere
b. Things that will result in attribution to settlor: power to revoke, reversionary
interest, discretionary ability to control enjoyment or administrative control
(ability to sell or swap property our for other property)
c. Point is that there is no income or estate tax advantage to inter vivos trusts
3. Necessity of trust beneficiaries
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i. You must have identified or identifiable beneficiaries b/c there must be somebody
to enjoy the property (holder of beneficial title) as well as somebody that can hold
the trustee responsible
ii. A trust fails if there are no beneficiaries
iii. Clark v. Campbell (N.H. 1926) [63 CB 520]: Decedent creates testamentary trust
with disposition of trust assets to such cas my friends as the trustee saw fit.
Rule: The decedent has tried to create a private trust, but it fails for lack of
beneficiaries. You can designate a class of beneficiaries, but they must be
identifiable.
a. It is permissible to give the trustees a power of appointment to give to
members of a class, but it must be described in such a manner that the trustee
can identify them (there has to be some delimitation of the beneficiaries)
b. The trust fails and we have a resulting trust in which trustees will convey to
the residual takers under the will (res of trust goes back to probate estate)
iv. Many trusts now give beneficiaries the power of appointment that is to decide
who will receive the property upon the beneficiarys death
v. In re Searights Estate (Ohio Ct. App. 1950) [63 CB 522]: Decedent bequeathed
dog to trustee and put $1,000 in bank account for benefit of dog. Rule: A private
express trust would fail b/c the dog isnt a beneficiary that can hold the
trustee responsible. But we do have a valid honorary trust here where the
trustee accepted the property and indicated willingness to care for the dog.
a. Honorary trust valid where trust is not illegal or malicious and trustee accepts
and agrees to be bound by obligations of the trust
b. Court finds honorary trust doesnt violate rule against perpetuities here b/c at
some point the money in the account will be diminished so the trust has a
definite life
vi. Only time you dont need beneficiary is if youre making a charity a beneficiary
but no specific charity is identified state attorney general will step in to protect
those beneficiaries
4. Necessity of a written instrument
i. For personal property, you can have an oral trust that is pretty informal, but its
unlikely that youll have much value in the trust
ii. If realty is involved, you must have a written trust or will fail Statute of Frauds
iii. Hieble v. Hieble (Conn. 1972) [64 CB 528]: Mother who thought she was dying of
cancer conveyed realty to children as joint tenants and orally agreed that it would
be a temporary arrangement. After she was cured, she asked children to reconvey
back to her. Rule: No trust was formed here b/c the involvement of realty
requires a writing. However, the court imposes a constructive trust in favor
of the mother.
iv. Olliffe v. Wells (Mass. 1881) [64 CB 530]: Decedents will conveyed property to
Wells to hold in trust and to distribute to persons to carry out decedents wishes,
without indication of more specific beneficiaries. Rule: The will declares a trust
too indefinite to be carried because of the lack of beneficiaries out so the trust
fails, and by resulting trust, property goes to the residual takers of the will.
a. This was a gift in trust so while Wells held legal title, nobody held beneficial
title so that the trust failed
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b. This is a semisecret trust meaning a trustee was given property, but the
beneficiaries arent known on the face of the doc
c. Cf. secret trust where it looks like trustee is given property absolutely but in
reality there is an oral promise binding him to distribute to beneficiaries
II. RIGHTS OF THE BENEFICIARY TO DISTRIBUTIONS FROM THE TRUST
A. Categorization of trusts by beneficiarys right to receive distributions
1. Mandatory trust (a/k/a simple trust) Trustee must distribute all income of the trust
(O to X in trust to distribute all income to)
2. Discretionary trust (a/k/a complex trust) Trustee has discretion over payment of
income and/or principal
i. Spray trust Trustee must pay out income, but recipient is in trustees discretion)
(O to X in trust to distribute to As children in such amount as trustees
determine)
ii. Support trust Trustees discretion is bound by some standard of support (O to X
in trust to distribute to A in amounts necessary to support A in the standard of
living to which they are accustomed)
B. Marsman v. Nasca (Mass. App. Ct. 1991) [65 CB 534]: Trust established requiring trustee
to distribute income and in his discretion to distribute corpus to Cappy as they deem
advisable for his support and maintenance. Cappy asks for money, but trustee only
makes small payout. Cappy eventually has to convey house to step-daughter for failure
to keep up the mortgage payments. Cappy dies and trustee is sued for breach. Rule:
Although the trustee had discretion to pay out the corpus, this discretion was not
absolute as the trustee had to pay out corpus to maintain and support Cappy. The
trustees failure to pay out the corpus in order to protect Cappys interest in the
house is a breach of this duty and an abuse of discretion.
1. The trust contained an exculpatory clause for the trustee, but the trustee remains
personally liable b/c cant exculpate himself from breach committed in bad faith,
intentionally, or with reckless indifference to the interests of the beneficiary
2. Plaintiff here (Cappys new wife) cant recover the house from Cappys stepdaughter
b/c she was a bona fide purchaser for value
3. Court also reads trust to require trustee to inquire re: Cappys financial status so that
trustee can determine what Cappys needs are
C. If trustee has discretion modified by adjectives like absolute, sole, or uncontrolled,
courts wont intervene to substitute their judgment for the trustee, unless the trustee acts
with utter disregard to the interests of the beneficiary
D. UTC 1008(b) Exculpatory cause drafted by the trustee or caused to be drafted by the
trustee is invalid as an abuse of fiduciary or confidential relationship unless trustee
proves exculpatory term is fair under circumstances and that its existence and contents
were adequately communicated to the settlor
1. Generally will fail if tries to exculpate for bad faith, reckless indifference, intentional
or willful neglect
2. Courts will not, however, enforce mandatory arbitration clauses b/c the beneficiary
must retain his right to hold the trustee accountable in court
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III.RIGHTS OF THE BENEFICIARYS CREDITORS

A. Discretionary trusts
1. No focus on mandatory trusts b/c creditors have direct access to any funds trustee is
bound to pay out and can capture them before they get to the beneficiary
2. With a discretionary trust, creditor cant compel trustee to pay b/c trustee exercises
discretion of when it will pay out (and may choose never to pay out) and generally
must wait until the trustee makes a payment
i. If its a discretionary trust with an ascertainable standard, a creditor can compel a
distribution if the ascertainable standard is met (e.g., if standard is to provide for
medical care and judgment creditor provided medical services to beneficiary)
ii. General view is that creditors of a beneficiary of a support trust generally cant
demand a payment except a supplier of necessaries can compel the trustee to pay
out if it provided items for support of beneficiary
iii. UTC 504(b) Except as provided in (c), regardless of whether trust has a
spendthrift provision, a creditor of a beneficiary may not compel a distribution
that is subject to trustees discretion even if discretion expressed in an
ascertainable standard of trustee has abused discretion
iv. UTC 504(c) To extent trustee has not complied with standard of distribution
or abused discretion, court can order distribution to satisfy a judgment for support
or maintenance of spouse, former spouse, or children
B. Spendthrift trusts
1. Uniquely American invention that pays tribute to the dead hand by putting trust
beyond reach of beneficiarys creditors on the grounds that by having a spendthrift
clause, settlor intended to keep the money safe from the beneficiarys creditors
2. Scheffel v. Krueger (N.H. 2001) [66 CB 549]: Defendant sexually assaulted plaintiffs
minor child. Plaintiff got judgment and sought to assert it against spendthrift trust
established for defendants benefit. Rule: Spendthrift trusts are generally
inalienable unless they are self-settled or funded by a fraudulent transfer. The
existence of these statutory exceptions suggests that legislature did not intend to
craft an exception for tort creditors.
i. Almost all states recognize these two limited exceptions for spendthrift trusts
ii. Some states statutes do recognize an exception for tort creditor trying to satisfy a
tort judgment against a spendthrift trust
3. Shelley v. Shelley (Ore. 1960) [67 CB 550]: Testamentary trust w/Grant Shelley as
beneficiary, mandatory income distribution, and spendthrift provision. Also had
provision where trustee could pay out corpus for unusual and extraordinary expenses
incurred in support and care of Grant or his children. Grant disappears, leaving two
wives and children by both. They seek to satisfy spousal and child support against
the trust. Rule: B/c income is mandatory, judgments can be satisfied from that.
The spendthrift provision, however, is sufficient to protect the spendthrift
corpus from the judgments. But b/c trustee has discretion to distribute corpus
in emergency situation, the support of children needed here b/c Grant
disappeared qualifies, and thus trustees must make distribution to satisfy child
support judgments.
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i. For mandatory provision, court sees it as against public policy to allow

disposition of property where it allows beneficiary to evade his obligations and
impose burden on the state to care for his wife/children
ii. Generally, wives and children suing for support are best positioned to challenge
and evade a spendthrift trust
4. Uniform Trust Codes treatment of spendthrift trusts
i. UTC 502(a) Spendthrift provision valid only if it restrains both voluntary and
involuntary transfers of a beneficiarys interest (i.e., beneficiary cant assign it)
ii. UTC 502(b) Spendthrift trust or similar words sufficient to restrain
voluntary and involuntary transfers of the interest sufficient to form the trust
iii. UTC 502(c) Beneficiary cant transfer interest in a spendthrift trust and
creditor of beneficiary cant reach the interest or a distribution by the trustee
before its receipt by the beneficiary (except as provided in 503)
iv. UTC 503(b) Even if trust has spendthrift provision, a beneficiarys child,
spouse, or ex-spouse who has judgment against beneficiary for support or
maintenance, or judgment creditor who has provided services for protection of
beneficiarys interest in the trust, may obtain an order attaching present or future
distributions to or for the benefit of the beneficiary
v. UTC 503(c) Spendthrift provision unenforceable against claim of the enacting
state or the United States to extent state statute or federal law so provides
5. A mandatory trust can also be a spendthrift trust so long as the creditor cant
intervene and compel the trustee to divert a distribution to the creditor
C. Self-settled asset protection trusts
1. General rule still in effect is that self-settled trusts may not be spendthrift trusts as
they would simply be fraudulent means of evading the claims of creditors
2. Many offshore jurisdictions and a handful of American states now do allow APTs
when the settlor is not a domicile of the state
3. Fed. Trade Commn v. Affordable Media, LLC (9th Cir. 1999) [69 CB 560]: Ponzi
scheme promoters put their profits into a self-settled Cook Islands trust. When trial
court ordered them to repatriate these assets, this triggered duress clause of trust
which removed them as co-trustees of the trust; defendants thus argued that they no
longer had control over the trust assets and couldnt repatriate them. Rule: The
defendants still hold the role of trust protector and thus have the power to
appoint new trustees who will repatriate the assets.
i. Fact that they had this power showed by their attempted resignation as trust
protector once the FTC discovered this power
ii. Biggest whole in APTs is that even if they have duress clause, no settlor is going
to wholly let control of them go to 3d party so usually a way to get in and require
the settlor to repatriate these assets
4. Putting assets in a self-settled trust to evade Medicaid may result in a five year ban
from eligibility for Medicaid
IV. MODIFICATION AND TERMINATION OF TRUSTS
A. Introduction
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1. If the settlor and all the beneficiaries agree, an irrevocable trust may be modified or
terminated, even if it contains a spendthrift provision (trustee cant block it b/c he has
no interest)
2. In US, great weight of authority is that even if all beneficiaries agree (and settlor is
dead or doesnt), termination or modification is prohibited prior to the time fixed for
termination if such would be contrary to a material purpose of the testator (Claflin
doctrine)
3. UTC 412(a) Court may modify administrative or dispositive terms of trust, or
terminate it, because of circumstances not anticipated by the settlor if such will
further the purposes of the trust; to extent possible, modification must be made
consistently with the settlors probable intent
i. UTC 412(b) Court may modify administrative terms of trust if continuation of
trust on such terms would be impracticable or wasteful or impair trust admin
ii. UTC 412(c) Upon trust termination hereunder, trustee shall distribute trust
property in a manner consistent with purposes of the trust
B. Trust modification
1. In re Trust of Stuchell (Ore. Ct. App. 1990) [70 CB 574]: Grandfather establishes
testamentary trust and petitioner is sole remaining beneficiary. Trust will terminate
on death of last income beneficiary and remainder distributed to petitioners lineal
descendants. Petitioner sought to modify trust to prevent the reversionary taker from
being disqualified from public assistance. Rule: There is no common law or
statutory basis for the modification requested and the modification cant be
made simply b/c its more advantageous to beneficiaries than compliance with
the direction.
2. One way to draft around modification problems is to give the lifetime beneficiary a
special power of appointment to designate or change the reversionary takers
3. You can also make use of trust protectors who have the power to modify the trust in
order to serve the changing needs of the beneficiaries particularly with
intergenerational trusts where there may be changes not anticipated by the settlor
i. Although not clear that fiduciary duties keep the trust protector in check, it would
seem impossible if the trust protector didnt owe duties to beneficiary
ii. If allowed, a trust protector typically needs court approval to change the trust,
which always opens doors for a disgruntled beneficiary to object
C. Trust termination and removal of the trustee
1. Trusts generally provide for the terms of their own termination
2. In re Estate of Brown (Vt. 1987) [71 CB 580]: Trust provided for education of children
with remainder used to support X and Y. Children were educated, so X and Y sought
termination so that they could have direct access to funds, arguing the material
purpose of the trust had been satisfied. Rule: The termination cant be compelled
here b/c a material purpose of the settlor remains unaccomplished. The trusts
first object, education of children, is complete, but the second purpose is to
assure lifetime income for beneficiaries through management and discretion of
trustee, as trust used language of providing for these beneficiaries for remainder
of their lives
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i. Court is honoring dead hand and transferor intent of providing life income, rather
than a lump sum, to the residuary beneficiaries
ii. Perhaps settlor thought that they might waste the assets
3. Presumption in most states is that trust is irrevocable unless you state otherwise; UTC
changes this by saying presumption is revocability unless otherwise provided
4. Trustee is generally removable for dishonesty or breach of trust in some way
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TRUSTS & ESTATES OUTLINE

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B................................................................................................................Protection from unintentional omission

II........................................................................RIGHTS OF THE BENEFICIARY TO DISTRIBUTIONS FROM THE TRUST

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IV..................................................................................................................TRANSFER OF THE DECEDENTS ESTATE

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II........................................................................RIGHTS OF THE BENEFICIARY TO DISTRIBUTIONS FROM THE TRUST

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C........................................................................................................................Self-settled asset protection trusts

INTRODUCTION TO ESTATE PLANNING

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unconstitutional or against public policy. Rule: Provision is valid and enforceable

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WILLS: CAPACITY AND CONTESTS

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2. Fraud in the inducement Misrepresentation of facts causing the testator to execute a

WILLS: FORMALITIES AND FORMS

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2. Doctrine of substantial compliance Will is admitted to probate if theres clear and

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A. Revocation by writing or physical act

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REVOCABLE TRUSTS AND PLANNING FOR INCAPACITY

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involves a trust, rather than a specific devise in a will, ademption by

RESTRICTIONS ON POWER OF DISPOSITION:

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I. RIGHTS OF THE SURVIVING SPOUSE

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E. Rights of surviving spouse in community property

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TRUSTS: CREATION AND CHARACTERISTICS

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