Generally: UTC/UPC- governed by statute, RESTATEMENT- governed by C/L Professional Responsibility Four areas of Malpractice: Fail to arrange proper

execution of will; Fail to clearly document the Ts intent; violation of the RAP ; tax violations; Intervivos gifts v. upon death Intestacy UPC 2-101 Definition: any part of estate not effectively disposed of by will passes by intestate succession to heirs as prescribed in code (except as modified by will). (b) a D by will may expressly exclude or limit the right of individual or class to succeed to prop of D passing by intestate succession. If that person survives D, share of intestate estate which would have gone to person treated as if individual/class had disclaimed Share of Ss 2-102. Main policy: is to carry out the probable intent of the average decedent. Most common provision is to give the spouse share if only one child survives, 1/3 share if more than one child survive. UPC: if there are surviving children of the D but they are also sss, then everything to spouse. UPC: model code-1969 version followed by 1/3 of states, revised in 1990 (IN doesnt follow). Elective share: SS can renounce will and take a fractional share of estate. 90 UPC: sliding scale, 3% per year for each 10, 4% after until you reach %50. $50k supplemental in case the SS own assets and other entitlements are below. Most states give set % regardless of duration of marriage. Have to survive spouse. 69 UPC: developed augmented estate, providing that certain nonprobate transfers are subject to elective share (1/3 of augmented estate, which includes the probate estate and transfer (revocable, retained rights of, joint tenancy w/in 2 yrs before death exceeding 3k) property given to spouse during lifetime and received by spouse at death (life ins and pensions) made w/o consideration in $s worth at any time during marriage. Excludes life ins payable to someone other than SS. Gifts included, credited against ES. 90 UPC: redesigned so more like comm.. prop, adds up prop of both ss and splits according to a % based on length of marriage, once at 15 yrs, get 50%. Includes transfers before marriage where D retained substantial control of property. Marital Prop: C/L: separate prop, H and W own separately all prop each acquires (except joint ownership), most c/l states give ss an elective/force share. Community prop: H and W own all acquisitions from earnings after marriage in equal undivided shares (1/2 interest), prop owned before marriage, by gift, devise, descent is not comm. prop- 9 states Protected prop of ss: homestead, personal prop set aside (UPC says 10k limit), family allowance (maintainance/support), dower (1/3) Simultaneous Death - person succeeds to the prop of an intestate or testate decedent only if survives the decedent for an instant of time. Janus- 85: 2 ways in which death can be determined- (1) C/L standard, based on the irreversible cessation of circulatory and respiratory function (2) if artificially maintained, brain death standard. Survivorship is a fact, which must be proven by a preponderance of evidence by the party whose claim depends on survivorship. Testimony by lay witness: burden met by evidence of positive sign of life in one body and absence of sign in another. Testimony of medical professionals: usual and customary standards of medical practice Uniform Simultaneous Death Act 1953: where no sufficient evidence of the order of deaths, B presumed to predecease: revised requiring clear and convincing evidence of 120 hours (5 days) survival (for joint

tenancy A and B, die simultaneously, distributed as if A survived, as if B survived) Devises real prop to devisees, bequeaths personal prop to legatees, real prop descends to heirs, personal prop is distrib. to next of kin.___ Taking by representation: After the spouses share is set aside, children & issue of the D take the remainder. When a child dies before D and leaves decedents, they get to take by representation. In laws are excluded as intestate successors in almost all states. English distribution per stirpes (lawyers prefer): divides the prop into as many shares as there are living children and deceased children w/in living descendants. Modern (American) per stirpes (per capita w/ representation): divides the estate into shares at the generational level nearest decedent where one ore more descendants of the D are alive and provide for representation. 1990 UPC 2-106 (per capita at each generation) (clients seem to want): gives those equally related to the decedent equal shares. Shares are divided at the level where descendants are living. Shares of any deceased parties at that level are treated as one pot and are dropped down and divided equally among the representatives at the next generational level. Shares of Descendents Negative Disinheritance Old: disinheritance is not possible by a declaration in a will that my son John shall receive none of my prop. entire estate must be devised to other people New: UPC 2101(b) authorizes a negative will. The barred heir is treated as having predeceased the intestate. Shares of Ancestors and Collaterals When there is no descendant, after deducting spouses share, rest of the intestates prop distributed to decedents parents (UPC). If no parents, Collateral kindred: All persons related by blood to decedent but who not descendants or ancestors First-line collaterals: descendants of the decedents parents, other than the decedent and the decedents issue Second-line collaterals: descendants of the decedents grandparents, other than decedents parents and their issue, if there are none of either, then one of two schemes is used: parentelic system: intestate estate passes to grandparents and descendants, if none to greatgrandparents and descendants, and so on until an heir is found degree-of-relationship system: intestate estate passes to the closest of kin, counting degrees of kinship discerned from the table of consanguinity. Degree =counting the steps (one per generation) up from D to nearest common ancestor of D & claimant and then counting steps down to claimant from that common ancestor). Total steps=degree. Tie breaker: modified degree of relationship- if two claimants have same degree, those claiming through the nearest ancestor to decedent shall be preferred to those claiming thorugh an ancestor more remote Escheat intestate leaves no survivors prop goes to state. UPC 2-105 Half-Bloods Maj.: (and UPC)- treat the same as whole blood, VA (scottish rule), FL, TX, gives half share, MS only gives if no whole blood, OKexcluded when there are whole blood kindred in the same degree and the inheritance came to the decedent by an ancestor and the half is not a descendant of the ancestor Laughing heirs Heirs descended from parentelic ancestors beyond grandparents. UPC 2-103 bars inheritance by intestate succession beyond grandparents and their descendants. Some states oppose and allow even stepchildren and kin of

predeceased spouse to inherit when there are no blood relatives of the decedent TRANSFERS TO CHILDREN Advancements: if any child wishes to share in the intestate distribution of a deceased parents estate, the child must permit the administrator to include in the determination of the distributive shares the value of any prop that the D when living, gave the child by advancement. C/L: Presumption that an inter vivos gift to a child is an advancement. Can be rebutted by c/c evidence that the gift was absolute during decedents lifetime. If child died, taken out of their childrens share. Modern law: (UPC 2-109) reverses and transfers are not presumed unless it is shown otherwise (usually writing), or the writing or acknowledgement indicates the gift is to be taken into account. Also childs heirs get it if heir predeceases donor. Prop advanced is valued at time the heir came into possession or at time of Ds death (whichever is first). Hotchpot: child receiving the advancement allows it to be calculated w/ the rest of the estate and then the distributive shares are determined. Transfer of an Expectancy likelihood that person will become an heir upon the decedents intestacy. may not be transferred bc may be destroyed by will or deed. NOT A LEGAL INTEREST, but if transferred for adequate consideration, the transfer may be enforceable in equity as a contract. Heirs Apparent: no living person has heirs, heirs that expect are these_______________ Managing a Minors Prop: prop turned over to overseer=principal, income is what is generated from it (interest, rent, dividends) Guardian: does not have title to prop and cannot change investments w/o court order, has duty to preserve prop and deliver at age 18 (unless court says otherwise), must support the ward using only income from prop, must obtain court order to use principal, very costly and restrictive. Income only can be distributed w/o court approval. Conservatorship: more flexible, annual trips to courthouse for accounting purposes. UTMA Account (Custodian): same as trust, but at age 18 upon reaching Maj. is when terminate and distribute prop to minor. Useful for modest gifts, large should go to trust. Given prop to hold for the benefit of minor until 18. Has discretionary power to expend for minors benefit as much or all of prop as needed. Any prop left at 21 is transferred to minor. Subject to fiduciary duties, the standard of care that would be observed by a prudent person. Trusteeship: most flexible of three, can reinvest w/o court approval, doesnt have to have annual accounting, income and principal may be distributed w/o court approval, termination and prop distributed can be deferred until any age settler chooses. TYPES OF CHILDREN Posthumous Children child will be so treated if born alive from time of conception for purposes of inheritance or prop rights, Rebuttable presumption 280 days. Uniform Parentage Act 4: 300 days after death is Hs Adopted Children: UPC 2-113: individual who is related to D through 2 lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share From: a child inherits from the parent alone Through: a child can inherit from grandparents, etc. By: inheritance by the child from either parent In Hall, court held that once child is adopted, the rights of both natural parents and relatives are terminated. Adopted children unable to take prop

form a deceased natural uncle. UPC precludes natural parents from inheriting from or through a child except where the parent treats child as his own and cares for him. Biological Parents: once the child is adopted, no longer part of the biological parents family and child does not inherit from any biological ancestors or relatives. Other may allow adopted child to inherit from all four parents, biological and adoptive. UPC 2-114: Adoption of a child by the spouse of either natural parent has no effect on (1) the relationship between the child and the natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the natural parent. UPC allows adopted children to inherit via natural parents if adopted by step- parent. Natural parents cannot inherit through their children unless they hold the child out as their own. Reproductive Technology: parenthood should be determined by intent of parties as shown by surrogacy contract rather than by who gave birth Hecht: left sperm for girlfriend, couldnt use it. Woodward: children born long after father died, want social security benefits. Whether they are issue. BIOC test. Intended to have children after his death, consent. UPC signed writing consent, must be in utero w/in 3 yrs, or born no later than 45 months after. CA: consent, and in writing, must be w/in 4 months of death notice to sue the genetic material, child must be in utero w/in 2 yrs. LA: 3 yrs (cant disinherit child). UPA: requires consent in writing Adult Adoption: Natural parents refuse to permit adoption. child reaches Maj., child can be adopted. used to fulfill the wishes of the testators. Eliminates challenges from collateral kindred in intestacy. Can also be used to avoid will challenges. NY bans Spouse/lover: particular state constraints. Minary v. Citizens Fidelity Bank: residuary at stake, son adopted his W so that she could inherit from the previously set up trust, dies, cant inherit bc not Ds intent Foster Parents: The law treats the child as a child of the foster parent for purposes of inheritance. An oral agreement between natural and adoptive parents is implied after performance and the foster parents holding the child out as their own. The child can inherit from the foster parents, but not vice versa. Children can often inherit through Equitable adoption/virtual Wilkes: not found there, just bc no objection, doesnt mean K is ratified. Legal custodian didnt have permission to agree to adoption. Cook didnt statutorily adopt. Dissent: should be virtual bc full performance of the adoption agreement by the child should be sufficient to overcome objection that it is unenforceable. Doris Duke: settled out of c Non-marital Children All jurisdictions permit inheritance from the mother, but the rules regarding inheritance from the father vary. paternity can be proved by c/c evidence (subsequent marriage of the parents, acknowledgment by father, adjudication during life of father, clear and convincing proof after death. C/L: child was filius nullius, child of no one, and didnt inherit Uniform Parentage Act: law confers rights and obligations based on parent-child relationship regardless of marital status of parents (UPC 2-114). When not married, father and child relationship when father receives minor in home and openly holds child out as own, or the father acknowledges his paternity in writing in court (4). If relationship presumed to exist, action to challenge can be brought at any time. If no presume father (dont meet 4), action must be brought w/in 3 yrs after child is 18 (6,7) Bars to Succession Homicide; Mahoney VT66: 3 ways when no statute preventing a slayer from taking (1) legal title passes to

slayer, (2) legal title doesnt pass to slayer, (3) legal title passes, but held equity in a constructive trust for heirs or next of kin (innocent heirs). Line drawn between vol. and invol. Manslaughter, intent to kill brings into play a constructive trust. If insane, or slayer had vested interest in prop (no const. trust). UPC 2-803 bars nonprobate as well. Probate court has limited and special jurisdiction (dont have power to establish purely equitable rights and claims). UPC 2-803(g): provides that a criminal conviction of intentional killing is conclusive. But that acquittal/absence of conviction/plea of guilty to lesser crime doesnt preclude acquitted indiv. From being regarded as Ds killer. Preponderance of evidence whether slayer found criminally liable for killing. Chinese: punishes a potentials heirs misconduct by reducing or eliminating share, and rewards good behavior Disclaimer UPC/Maj.: allows universal disclaimers treating the heir/devisee as predeceasing the decedent. But if by law or under testamentary instrument the descendants of the disclaimant would share in the disclaimed interest by representation or otherwise were the disclaimant to predecease the decedent, the disclaimed interest passes by representation, or by the governing instrument. C/L: intestate successor cannot prevent title from passing to him or her, testate, can refuse to accept the devise. UPC 2-801(d): disclaimer relates back for all purposes. Therefore, As creditors cannot reach her share if she disclaims and the estate goes to A. courts are split as to whether this rule may apply to federal tax liens. The disclaimed prop is treated as passing directly to hers, bypassing the disclaimant. Saving estate taxes: IRC 2518 permits qualified disclaimers (those made w/in 9 months after interest is created or after donee reaches 21, whichever is later) to pass the prop from the intended recipient to the next in line free of any gift or estate taxes. CREDITORS MIGHT BE ABLE TO TOUCH THE PROCEED IF IT IS GOV. Drye v. US: trying to disclaim the estate to his son to avoid repaying his estate. Medicaid Purpose of Disclaimer: Troy v. Hart: different states will forbid transferring funds to get to that level of qualification. Can transfer to spouse, and incapacitated individuals. Must report that you have disclaimed to avoid fraud. If recipient dies leaving non or probate prop, the state may attempt to recover out of those assets benefits paid to the Medicaid recipient.___ PROBATE: IND CODE Title 29 Procedure: (1) opening probate three functions (1, provides evidence of transfer of title to new owners by probated will or decree of intestate succession, 2, protects creditors by requiring payment of debts, and 3, distributes decedents prop to those intended after creditors are paid). (2) supervising the representatives actions- supervised (many states require close supervision), unsupervised (some states allow PR to handle all matters informally so long as all interested parties are adults and approve fiduciarys account and release from liability), minors (if involved, judicial supervision required), UPC (allows unsupervised and supervised administration) (3) closing the estatecreditors must be paid, taxes must be paid, tax returns audited and accepted, real estate sold. Judicial approval of PRs actions required to relieve him from liability. UPC: (promulgated 69, revised 90): provides for informal probate/unsupervised (PR does not give notice to anyone and petitions for appointment. PR has duty of mailing notice to all interested parties w/in 30 days of appointment) and formal probate/supervised (formal judicial determination, after formal court proceedings, and

after notice to interested parties, any of whom may demand formal probate). IND Code section: $50,000 limit for deciding whether to go informal/formal Living Probate/ Ante-Mortem: statutes in AR, ND, OH allow a person to begin an adversary proceeding during his lifetime to declare the validity of a will and his testamentary capacity. Letters: testamentary or administration are issued per state statute, authorize PR to act on behalf of estate. Jurisdiction: primary or domiciliary: where decedent was domiciled at the time of death. Ancillary administration is required when real prop is located in another jurisdiction English System: provides for in common form (ex parte proceeding, no notice or process issued to any person. Interested parties could file a caveat compelling probate in solemn form) or in solemn form (notice to interested parties given by citation; greater court participation required). Barring Creditors of D: nonclaim statutes: every state requires creditors file claims w/in specified time period, those filed outside are barred. Two forms: short term: bar claims not filed w/in 2-6 monts after probate begin. SC held that Due process requires that known or reasonably ascertainable creditors be given actual notice before they are barred by these. Long term: 1-5 yrs of decedents death, regardless of when (or whether) probate procedures began. WILLS: CAPACITY/CONTESTS Mental Capacity The testator has to have ability to know: (1) the nature and extent of the testators prop (2) the persons who are the natural objects of the testators bounty(3) the disposition the testator is making, and (4) how these elements relate so as to form an orderly plan for the disposition of the testators prop. a mental capacity argument (only relevant at the time of the wills execution) invalidates the entire will. Must understand the significance of his act. Capacity: governed by a different legal test and requires less competence than the power to make a contract or a gift, but more competence than marriage. Estate of Washburn: presumption is that she had capacity, petitioner must show she doesnt (medical testimony, lay witnesses). In re Strittmater: Womans org, insane delusions. Found condition of insanity leads a testator to do something in her will that she otherwise would not have done, portion may be set aside. balance family w/ NWP, court looks at that disposition as being materially altered Reasons for mental capacity: (1) a will should represent the testator (2) mentally incompetent man/woman is not a person (3) law requires it to protect the decedents family (reciprocity), giving effect to expectations tends to preserve familial unit, inheritance seen as delayed payment for love, fairness of disposition sometimes used by court as factor (4) legitimacy cannot exist unless decisions are reasoned (5) assures sane person that the disposition the person desires will be carried out (6) protect society from irrational acts (7) may protect senile or incompetent testator from exploitation. Wright: man did strange things, lived in dirt shack, etc. testamentary capacity cannot be destroyed by showing a few isolated acts, idiosyncrasies, moral or mental irregularities or departure from norm unless they directly bear upon and have influenced the testamentary act. Only part will be struck, remainder will be allowed if the invalid portion can be separated w/o defeating the testators intent or destroying the testamentary scheme Insane Delusion: impairs testamentary capacity, a delusion which testator adheres to against all evidence and reason to the contrary. false conception of reality

w/ no rsbl basis (legal not psych concept). In re Honigman: cut off his W 1 month before death (thought affair), proof amply supported (pre of evidence) that T was suffering from unwarranted and insane delusions, set aside portions. Will may be struck down if its dispository provisions were or might have been caused by delusion. Maj.: delusion is insane even if there is some factual basis for it if a rational person in the testators situation could not have drawn the conclusion reached by the T. Mistake: mistaken belief is susceptible to change/correction once the T is told truth. Courts rarely correct mistakes important to distinguish from i.d. ID only invalidates the part of the will produced by the delusion. To rebut ID challenge, attack the rational basis of the Ts belief. UPC: corrects thought he was dead mistake Undue Influence: Lord Hannen: to be undue influence in eyes of law there must be coercion. Only when the will of a person who becomes a T is coerced into doing that which he or she does not desire to do, that is UI. Look for psychological domination. (1) Relationship the T was subservient to the influencer; there existed a relationship of trust and confidence; the influencer was mentally superior to the T; T was susceptible to influence. (2) Disposition and Opportunity influencer must have disposition to influence T and his decision; have ability and opportunity to exercise influence; look at influencers motive (3)Result Did UI result in change in will benefiting influencer. Can be circumstantial proof. Test: whether such control was exercised over the mind of the T as to overcome her free agency and free will and to substitute the will of another so as to cause the T to do what she would otherwise not have done if not for influence. In re Moses: intimate relationship w/ attorney, but independent attorney drafted the will, no contest. Sister attacked, court found UI. Confidential relationship gives rise to presumption of UI, can be overcome by evidence that, in making a will M had acted upon the independent advice and counsel of one entirely devoted to her interest. Lipper (see no contest). Kaufmann: will to gay partner, brother sues for UI and wins. Puckett v. Krida: confidential relationship plus suspicious circumstances. Testamentary libel: cause of action for libelous statements in will about someone else Bequests to Attorneys presumption of UI arises when attorney/ drafter receives legacy, except when atty is related. Rebuttable by by person occupying the confidential relation to prove absence of UI. Some states require additional evidence that the B was active in procuring the execution of the will. Moses court found UI when old woman devised to young lover. ABA Rule 1.8(c): exempts present gift at holiday or as token of appreciation, okay if related, but shouldnt be substantially large. NY: surrogate must investigate any bequest to an attorney who drafted will- no presumption of UI. CA: statute invalidates any bequest to a lawyer who drafts the will unless related by blood or marriage to T. exception if client consults an independent lawyer who attached a certification of independent review says no UI/fraud/duress. Fraud T is deceived by an intentional misrep and does that which T would not have done but for mis. Fraudulently produced provisions are excluded from wills unless they taint. entire will. impose a constructive trust on the wrongdoer. (1) Intent to deceive (2)purpose of influencing the disposition; and (3) causation: intentional misrep produced a fraudulent result Fraud in Inducement: occurs when person misrepresents facts, causing T to execute will,

include particular provisions in wrongdoers fav, refrain from revoke will, not to execute will. Problem is determining whether legacy is the fruit of the fraud. Fraud in the execution: occurs when a person misrepresents the character or contents of the instrument signed by the T, which does not carry out the Ts intent. Remedies Contest the will in probate court Constructive Trust: Tortious Interference w/ an Expectancy (not a will contest). Lantham v. Father Divine: religious cult leader prevented Lyon from revoking will and including cousins in it. Constructive Trust: where a divisee or legatee under a will already executed prevents the testator by fraud, duress, or undue influence from revoking the will and executing a new ill in favor of another, so that the testator dies leaving the original will enforce, the devisee or legatee holds the prop thus acquired upon a CT for the intended devisee or legatee. May be imposed where no fraud is involved but the court thinks that unjust enrichment would result if the person retained the prop (even if innocent, still may be imposed b/c unjust enrichment- heirs). Where a legatee has taken prop under a will, after agreeing outside the will, to devote the prop to a purpose intended and declared by the T, equity will enforce a CT to effectuate that purpose Tortious Interference w/ expectancy: tort (breach/proximate cause/damage), someone expecting a gift is harmed (P) action in equity. P must prove the interference involved conduct tortious in itself, such as fraud, duress or undue influence. Theory may not be used when the challenged based on mental incapacity. NOT A WILL CONTEST, doesnt challenge the validity of a will or probate, seeks recovery in tort damages (including punitive), tort sols governs it, starts running at the time P discovered (or should have) that the fraud or undue infl. and no contest clause in wills do not apply. Most states require P to pursue probate remedies first (if not direct heir, cant challenge, or maybe assets already distributed so probate challenge ineffective). Constructive trust, probably no damages. Treated differently among jurisdictions, some not at all. Longer sols. No tort in MA Shilling v. Herrera: brother vs. caretaker. First fraud was when she interfered w/ what he expected to inherit, and failed to notify him. Existence of expectancy, intentional interference, proximate cause, damages. No Contest Clause: provides that a B who contests the will shall take nothing (or a token amount) in lieu of the provisions made for the B in the will. Maj.: enforce the clause unless there is probable cause for the contest. Min.: believe the probable cause rule encourages litigation. Enforce clause unless the contestant alleges forgery or subs. revocation by a later will or codicil, or the B contests a provision benefiting the drafter of the will or a witness thereto. Key: investigate local law carefully. UPC: supports them unless probable cause exists for no contest. Lipper v. Weslow: grandchildren disinherited, no contest clause, but they werent getting anything anyway, frank (Attorney/son) got large share. Evidence insufficient to find UI. Clause explained reasons for leaving them nothing. Better to leave something so no contest will occur. More Contests in US than UK: Langbeinrelatives and friends are those required to testify. (1) no disinherited children in England, (2) Juries favorable to plaintiffs, in UK civil jury trials are not available for probate contests, (3) plaintiffs not accountable for attorneys fees, (4) authenticated wills available in England WILLS: FORMALITIES AND FORMS

Execution of Wills (1)Ritualistic: effectuating the requirements of a transfer/guarantees the completion of the will; impressing upon the transferor the significance of his statements. To convince the court that the statements of the transferor were deliberately intended to effectuate a transfer, some ceremonial is required for purpose of impressing the transferor w/ the significance of his statements(2)Evidentiary: requiring satisfactory evidence to insure a transfer/goes to the reliability of an execution. Increases the reliability of the proof presented to the court. (3)Protective: safeguarding the T from UI and other forms of imposition Ex: acknowledgment over the phone may not be acceptable (may argue conscious presence in some circumstances) prophylactic purpose. Prima facie evidence that there is no undue influence. (4)Channeling: making these documents standardized. Creating a safe harbor, T provided w/ assurance that his wish will be carried out Execution (1) in writing (2) signed by the testator (3) signed by at least two individuals (4) signature must be at foot of will (5) witnesses sign or attest in presence of T Presence Requirement Line of Sight Test: (English and Min.): a will is valid only if the T is able to see the W in the act of signing were he to look. Conscious Presence Test: Ws is in the presence of the T if the T, through sight, hearing, to general conscious events, comprehends that W is in act of signing. Physical Presence -UPC 2-502(a)(3): doesnt require witnesses to be immediately present. sufficient if they sign w/in reasonable time after T or w/ Ts acknowledgment of the signature. T must acknowledge that will is his. In Re Groffman: (ENG): will denied probate bc 2 ws acknowledged at different times. 9 Wills Act: will must be in writing and properly executed, must be signed in the presence of 2 ws and by his direction, and signature must be made or acknowledged by T in the presence of 2 ws at the same time, and W must attest in presence of T. Estate of Parsons (CA 80): 3 ws, 2 named in will. Under cal probate code 51 gift void unless 2 other ws, one disclaims to get around it. Purpose of 51 is to protect the T from fraud and UI at moment the will is executed, by insuring 2 ws are present who would not be financially motivated to join in a scheme. Ws can receive up to amount they would have gotten in intestacy. 51 is a Purging Statutes will remains valid, but any devise to an attesting w is void, takes nothing, goes by intestacy. Maj.- statutes purge witness only of benefit he receives that exceeds benefit he would have received if will had not been executed (CA), MA- interested witness gets 0 unless 2 other ws. UPC 2-505: dispenses w/ rule. Ay person generally competent may be a w, a will or any provision thereof is not invalid if Order of Signing W must attest after the T has signed the will. Signature: ts intent. Penn Wills act. Liability of Attorney: safeguards: order of signing, signature, addition after signature, delayed attestation (UPC requires reasonable). Attestation Clause: permits probate when w forgets or dies before T. Not an affidavit. Facilitates probate by providing prima facie evidence that the T voluntarily signed w/ ws. General philosophy of courts should favor giving effect to an intentional exercise of power to determine successors in ownership. Signed at time of will execution self-proving affidavit indicating the procedure w/ which will was signed. Signed after execution. At end of will, sworn before notary that will duly executed. Conclusive proof for probate. UPC 2-504 authorizes 2 forms: (a) allows combined attestation

clause / self-proving affidavit (one sig by each w). (b) aurhotizes self proving aff to be affixed to a will already signed and attested. This does not satisfy the attestation req for any state. Safe Guarding Will: WI says lawyer should keep. UPC 2-515: deposit of will in court (w/clerk) for safekeeping Good Method: UPC 2-506: recognize as valid a will executed w/ the formalities required either by the state where T was domiciled at death, the state where will was executed, or the state where T was domiciled when executed, some states follow neither so you should (1) fasten pages securily w/exact number of pgs, certain T has read and understands, 2 disinterested ws w/ notary, ask 3 questions (your will, read/understand/dispose of prop according to your wishes?), do you request ws signing, allw ws to see T sign, one w reads attest aloud, each w signs, attach spa. Alternatives to Strict Interpretation Curitive docs- designed to cure inequality (1) Substantial Compliance If will is in substantial compliance w/ the law, may be probated. Look to see if the formalities that they did go through followed the intent of the legislature (channeling/evidentiary). Whether doc expressed the decedents intent and does its form sufficiently approximate Wills Act formality to enable court to conclude that it serves purposes of Act. Wade v. Wade: Stevens v. Casdorph: focus on the testator and whether his signature was identified (line of sight test vs. conscious present test) (2) Harmless Error Dispensing Power UPC 2-503: gives court broader power to dispense w/ formalities if there is c and c evidence that the D intended the document to be his will, revo, addition, or revival or former will. Allows a document to be rewritten and probated. Even if doesnt comply w/ 2-503, doc treated as executed in compliance if prop. Establishes by clear and convincing evidence that the D intended. Pavlinko: H and W signed each others will, each gave residual to the other, court refused to rework the will. Ranney: ws signed spa, not attestation, W wants more than she got, challenges, will probated as it was. Holographic Wills UPC 2-502(b) states allow them. Most states require date. Most states allow signing anywhere. Several states require them to be entirely handwritten. A will written by the Ts hand and signed by the T Attesting witnesses are not necessary. If the signature and material portions of the document are in the testator's handwriting. Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. Vlalid if the printed portion could be eliminated and the handwritten portion could evidence testamentary intent. Johnson: (AZ)- law similar to UPC, filled out form he purchased at store for will do be distributed 8 ways, 6 children challenge, win. Handwritten portion needed to clearly express intent. Kimmel: wrote letter in poor English, expressing leaving certain prop, one of heirs challenge, will probated. Court said gift, condition if enny thing happens, keep letter locked up. nuncupative wills (oral) in view of imminent death. Allowed in some states under limited circumstances (uttered during last sickness, to 3 people who must reduce it to writing w/in specified time) Conditional Wills: still valid even if condition is not met. If I die from X. merely a statement of the

inducement for execution of the will, which can be probated upon death from any cause. Methodology -Analyzing Validity of Will Execution: 1.Does the document strictly comply w/ the statutory requirements for an attested will? 2.Does the J recognize holographic wills? If so, does the document work as a holographic will? 3.Do the facts show substantial compliance w/ the statutory requirements? 4.Should the will be allowed under a dispensing statute? (statute must exist in j and testators intent must be established by clear and convincing evidence.) 5.If all else fails, try to argue constructive trust. REVOCATION OF WILLS: ambulatory doc (subject to modification during Ts lifetime). UPC 2507: will or any part revoked by executing a subsequent will that revokes the previous or part or by inconsistency, or by performing a revocatory act on the will. subsequent writing executed w/ the usual formalities (1) will (2) amendment to will or codicil (3) document revoking will Inconsistency: will 2 wholly revokes 1 by incost if T intends 2 to replace rather than supplement. Subseq that doesnt expressly revoke, but makes complete disposition of estate, replaces previous will, subseq that doesnt make complete disposition, no presumed to revoke, but is viewed as a Codicilsupplements, doesnt replace. C/L- revo of codicil doesnt impact will, original remains. But if revoke will, presumed you revoke subseq codicils too Holographic codicils. Some states observe these, allowing written changes of a will if accmp by sign. a physical act destroying, obliterating, or burning the will (act + intent) T must have intent to revoke the part of the will. If not T, T must be conscious presence by direction. Harrison: T called attorney to revoke will he had (she had one too), he destroyed, not probated bc couldnt find hers either so assumed she revoked. Presumptions: if evidence establishes that T had possession of will before death and its not found, presump that T destroyed it. If destroy copy of will in your possession, presump arises that you have revoked and all duplicates are revoked. Can be rebutted (bop on proponent of will, must convince absence not due to destruction or revocation). AZ doesnt rebut presump, FLA rebutted where H lived in house and couple had been fighting before she died. Thompsan v Royall: writes on back that its void, signs. Not proper revocation VA, intent was clear but act was not, revocation of a will by cancellation w/in the meaning of the statute contemplates marks or lines across the written parts of the instrument or a physical defacement, or some mutilation of the writing itself w/ intent to revoke. UPC 2-507: cancelling doesnt have to touch words, words of cancellation must be written on will, not on separate doc. Probate of Lost Wills In the absence of a statute, a will that is lost, destroyed w/o the Ts consent, or not destroyed in conformity w/ a wills statute can be admitted to probate if its contents can be proven. contents must be proven by clear and convincing evidence e.g. a copy in the lawyers office. A few states prohibit unless the will was either in existence at Ts death (and destroyed after) or fraudulently destroyed during Ts life. Partial revocation by physical act: some states dont allow bc of fraud, must be revoked by another instrument. Will must be admitted to probate in form of original. Some states not permitted where intent and effect of the change would result in a substantial enhancement of another bequest (restatement disapproves of approach)

Revocation by Operation of Law: Changed Circumstances Divorce (Maj.) revokes any provision in decedents will for divorced spouse (min): revocation only if accompanied by prop settlement, only to wills not nonprobate. UPC: applies to nonprobate, joint tenants, transferring interests of former spouse into equal tenancies in common, as if disclaimer Marriage: Omitted Spouse : if T executes will and subsequently marries, Maj. of states give spouse intestate share unless it appears from will that omission was intentional, or ss provided for by transfer outside the will, or ss waived right Ommitted Child: Pretermitted Children Maj. statutes giving child born after execution of parents will, and not provided for in will, a share of parents estate. Min.: C/L marriage followed by birth of issue revokes a will executed before marriage (not followed by UPC). MO- no extrinsic evidence to show intent, must appear intentional, MA- child takes unless it appears that omission was intentional and not occasioned by mistake, extrinsic evid allowed. UPC: no extrinsic evid look to will only. If T has a predeceased child who is neither named, nor referred to in will, then the naming of the next degree of issue in line of descent will successfully preclude issue more removed from the T from invoking the statute. Where an issue of child is named or referred to, but child is not named or referred to, then the Ts child is pretermitted, if they survive Method: Look for revival statute first. If there is none, use DRR Dependent Relative Revocation (DRR) If T purports to revoke will upon mistaken assumption of law or fact, revocation is ineffective if T would not have revoked will had known the truth. DRR is used to carry out Ts true intent. If court finds T wouldnt have destroyed will if he knew new one was ineffective, crt,will cancel revocation and probate destroyed will. The mistake and the subsequent revocation must be part of the same scheme (relative). Courts have held it applies only:(1) alternative plan of disposition fails (make new will, tear up old one, new one fails); or (2) mistake recited in revoking instrument; or where mistake est by c/c evid. Carter v. First Meth Church of Albany (GA): will found w/ handwritten instrument establishing diff scheme of disposition. Pencil marks through will. If it is clear that cancelling of one and making another were part of 1 scheme, and the revocation of the old was so related to making of new as to be dependent on it, then if the new is not made or is invalid, the old will be given effect. If old not destroyed, trying to make a new one wont revive old. Estate of Alburn: WI T made will 1, will 2 revoked 1, destroyed 2 under mistaken belief that 1 could be revived. The law of the state in which the D was domiciled at death controls, court invoked DRR and made revocation of 2 ineffective was ok shown by evid, no revival in WI. Handwriting: standing alone, handwritten words are insufficient, crossing out name and writing new one isnt valid holographic will unless the whole thing is handwritten. Written changes not valid in states recognizing holographic wills. will says 100k to friend, crossed out put 250k, if juris does not recognize partial revo, ignore give 100k, if they do, gift revoked, but maybe DDR. REVIVAL When a 2d will revokes a 1st by either express clause or inconsistency, and later the 2d is revoked. Maj. Rule: 2 may revoke 1 at the time that 2 is executed. When 2 is revoked, only way that 1 will be revived is where the testator so intended (proof of circumstances surrounding revocation of 2 or oral declarations made contemporaneously wherew/).

Min. Rule: upon revocation of 2, regardless of testators intentions, will 1 is not revived w/o wills act formalities (re-executed, republished in a properly executed codicil) WI. Other: pure revivalwill number 1, will number2 (will number 2 does not revoke will number 1 until time of death), if 2 gone, will 1 survives (English C/L). UPC Presumptions: (a) if subseq will that wholly revoked prior will is revoked by revocatory act, previous will remains revoked unless revived. Revived if testator intended (presump that will 1 not revived). (b) if subseq will that partly revoked prior will is revoked, revoked part of prior will is revived unless it is evid that T did not intend revival (presup that part of will 1 is revived). (c) if subseq will is revoked by another will (loose term) prior will remains revoked in part or in whole unless revived (presump that will 1 not revived). Presump that wholly revoke will remains revoked, partly revoked will is revived. COMPONENTS OF A WILL: possible for docs and acts not executed formally to have the effect of determining who takes prop. 2 doctrines have this effect in that they permit extrinsic evid to resolve the identity of persons or prop. (1)Incorporation by Reference: UPC 2-510: Any writing in existence when will is executed may be incorporated by reference if language of will manifests this intent and describes writing sufficiently to permit its identification. Intent: T must have intent to incorporate writing Identification: T must identify writing to be incorporated \ w/ sufficient specificity so that no other document could reasonably be referred to by that description. Clark: notebook of possessions incorporated into will. Painting to Ginny Clark as provided in notebook. Anything she added after date she signed second codicil would not be incorporated. (2) Independent legal significance: if B or prop designations are identified by acts or events that have a lifetime motive and significance apart from their effect on the will. Aka doctrine of nontestamentary acts. I give contents of my desk or car doesnt matter that T doesnt describe w/ particularity even if they get a better gift. UPC 2-512: a will may dispose of prop by reference to acts and events that have significance apart from the effect on the dispositions made by the will, whether they occur before or after the execution of the will or before or after Ts death (execution or revo of another indivs will is such an event). Integration of Wills All papers present at time of wills execution intended to be part of will are integrated into will. Invalid instruments included. 1 document. No in IN Republication by Codicil A will is treated as reexecuted (republished) as of date of codicil. Only where updating will carries out testators intent. you can only republish things that have been valid prior wills no bootstrapping. Separate Writing Identifying Bequest of Tangible Prop: UPC 2-513- regardless of holographic will statutes, a will may refer to a written list disposing of non-currency prop not specifically disposed of by the will. signed by the T; describe items and devisees w/ rsble certainty. may be executed after the will and altered after its preparation. can have no ind significance. Johnson: valid holographic codicil incorporated the prior will by reference and republished and validated the prior will as the date of codicil Acts of Independent Significance Permits use of e/e, facts, and circumstances outside of will, to identify will beneficiaries or prop passing under will.

have lifetime motive and significance apart from effect on will, gift will be upheld CONTRACTS RELATING TO WILLS: governed by K law, and wills are governed separately. If leaves will that doesnt comply w/k, will probated by the k B is entitled to enforce the k by const. trust. Contracts to Make a Will:.in many states, must be in writing. If no sp, promisee entitled to revieve value of services rendered (quantum meruit). Value D put on services in oral agreement is evid of the reasonable value of services (promise to leave you my estate). In some states, oral k to make a will is specifically enforceable provided the terms are proved by c and c evid, rendition of services is wholly referable to K; services of such peculiar value to promisor as not to be estimated or compensable by any pecuniary standard. Contracts Not to Revoke a Will Joint Will one instrument executed by 2 persons as the will of both When 1 T dies, instrument is probated as the Ts will, when other dies, instrument is probated as others will. Mutual (reciprocal) Will: separate wills of 2 or more persons that contain similar or reciprocal provisions Joint and Mutual Wills: terms used to describe joint will devising prop in accordance w/ a K. Mutuality refers to K, not to reciprocal provisions of sep wills. Not enforceable unless c and c evid and mere execution of either kind doesnt give rise to a presump of k not to revoke UPC 2-514: contracts concerning succession: k to make a will or devise, or not to revoke a will, or to die intestate, may be established only by (i) provisions of a will stating material provisions of the k, (ii) an express reference in a will to a k and extrinsic evid proving the terms of the k, or (iii) a writing signed by the D evidencing the k. Putnam: FL D and former spouse signed mutual wills stating that neither would change the manner in which residuary was dispersed. W died, H remarried. New W wants share. Gave share to new W bc FL law favors ss. Pretermitted spouse statute: marries after making a will and spouse survives, receives equal share in value to that which the survivor would have received if T had died intestate unless: provision made for or waiver by prenup/postnup agreement, souse not provided for in will or will discloses intention to make provision for spouse. Maj. view: third party Bs prevail over second W. sss rights only attach to prop owned by D spouse, but bc of k, D spouse didnt have equitable title. When surviving T accepts benefits under k will, an equitable trust imposed upon prop in favor of k Bs. when accept benefits, T becomes estopped from making a diff disposition. When surviving T breaches the will k, the k Bs are entitled to judgment creditor status. Will Substitutes: Nonprobate Transfers each reserves to the owner complete lifetime dominion-mass substitutes life ins, pensions, joint accounts, revocable trusts Contracts w/ Payable-on-Death Provisions valid in agreements that are ins ks or suppl. agmnts to ins k. traditional rule: pods in ks other than life ins ks invalid. Today: widely accepted. nontestamentary. UPC 6-101: non probate transfers- authorizes pods, npt (ins k, employment k, pension, trust, marital prop agreement, mortgage). Money ceases to be payable if B dies before payment. Silent on survivorship, antilapse substitutes the issue of the named B who doesnt survive D. if the k permits the owner to change the B by will, owner may do so, but if power is not retained, UPC is silent. Maj: says you cant do it. Wilhoit: W got 5k from ins co when H died W entered agreement w ins co to keep 5k invested

w/clause that brother would get it, but he died 20 yrs before. Left it to grandson in will. Pod invalid bc didnt comply w/ statute of wills (not in an ins k so invalid), cant change B by will alone. Hillowitz: W was supposed to get interest in partnership when T died. Executors challenged provision in k as attempt to make testamentary gift, court upholds as a k. modern rule: many instruments which provide for the disposition of prop after death dont have to conform w/ statute of wills. Cook: D is B of life ins, divorced, H remarries, leaves to new W in holographic will, policy says only change B by written notice to ins co. to D. Maj.: have to comply w/ co policy. Exceptions: (1) co waves strict compliance, issued new (2) beyond power of insured to comply literally w/ requirement, court may treat change as legally made (3) if insured has pursued the course pointed out by req, but before new certificate issued, dies, court may treat as changed and grant equity Divorce. Maj: Unlike will, k not revoked by divorce. UPC 2-804: changes this, designations of relatives of ex spouses are also voided Multiple-Party Bank Accounts (look more like gifts) more than 1 person named on account from inception. Joint/Survivor Accounts: A and B have power to draw on account and survivor owns balance after death of 1. UPC calls it joint tenant w/ right of survivorship: belong to parties in prop to the net contribution of each to the sums on deposit. B can be changed by will. Payable-On-Death Account: depositor and B, B not allowed to draw on the account but entitled to the balance upon As death. Agency-convenience Account: dep and another who has access on behalf of dep. B has power to draw on the account during As life for the benefit of A, but does not receive the balance upon As death. Savings Account Trust (Totten Trust): functions as pod account, B deposits money as trustee for A. A entitled to balance when B dies, no power to draw on account. B retains the right to revoke the trust by w/drawing the funds at any time during his life. Franklin: JA to sister when caretaker, changed, bank didnt, went to new caretaker. Extrinsic evid admissible to show intent was not to create joint tenancy. Lack of don. intent must relate back to creation of JT. Court said intended to be a convenience account. UPC 6-215: says creditors can reach pod bank accounts and jba if estate insufficient. Safety Deposit Boxes: presumption of joint access not to joint ownership, but can be found by c and c evid Joint Tenancies: death of 1, survivor owns prop absolutely, gets marketable title, freed of any participation by decedent. Jt cant devise his share by will, must sever the tenancy first, then devise portion. At death, jts interest vanishes, nothing for creditor to reach, so creditor must seize before death. Death certificate rather than probate decree suffices to transfer title. REVOCABLE TRUSTS: A revocable, inter vivos trust is private and most flexible of all will substitutes bc donor can draft the dispositive provisions and the admin provisions precisely to donors liking. Trust settlor transfers legal title to prop to another person, trustee (which could also be settlor, gets income during life and remainder/principal distributed to whom settlor decides) to hold in trust for future benefit of another, and settlor retains power to revoke, alter or amend the trust and right to trust income during settlors lifetime. Upon death, assets are distributed or to be held in further trust for Bs. Trustee has fiduciary duty to Bs: loyalty and prudence in investments. Typical format: involving deed of trust (someone else is trustee), same as above. Revocable deeds in land should never be used. Farkas: interest of a B under a trust who must survive

the settlor is a contingent equitable interest in remainder. Reiser: where a person places prop in trust and reserves right to amend and revoke, or direct disposition of principal and income, the settlors creditors may, reach in satisfaction of the settlors debts, to the extent not satisfied by estate, assets owned by the trust over which settlor had such control at the time of his death (not over those he didnt control) Restatement of Trusts 330: a trust is revocable only if the settlor expressly reserves a power to revoke, and the terms of the trust strictly define and limit the resreved power of revocation, when reserves power but doesnt specify mode, power can be exercised in any manner which sufficiently manifests the intention of the settlor to revoke. UTA 602: may be revoked unless the terms of the trust make specified manner exclusive, by a will or any other method manifesting clear and convincing evid of intent Funding you must fund the trust w/ a corpus or res. (prop) 2 inquiries to establish a valid Inter Vivos Trust (1) whether B has an interest in prop upon execution of trust (2)Whether Ps control over stock was akin to that of a trustee Revocation of Trust: At C/L, where trust expressly states the methods through which the trust could be revoked, those methods were exclusive manner of revocation of that trust. In order to have power to revoke the trust, the power must be reserved in the trust. Pour-over Wills: will devising the residue of an estate to an existing inter vivos trust to be held under terms of trust. All assets are subject to unified trust administration. Incorporation by Reference: instrument must be in existence at time of wills execution. Independent Significance: will may dispose of prop by referring to some act that has significance apart from disposition of probate assets, trust doesnt have to be in existence when will executed, but must have assets in it before Ts death. UPC 2-511- UTATA- testamentary adds to trust: (a) will may devise prop to the trustee of a trust established or to be established (i) during lifetime of T, (ii) at Ts death if the trust is identified in the will and has terms set forth in written instrument other than will. The devise is not invalid bc trust is amendable, or bc trust was amended after execution of will. (b) unless will says otherwise, prop devised to a trust described n a is not held under a testamentary trust, but becomes part of trust to which it is devised, (c) unless will says otherwise, a revocation or termination of the trust before Ts death causes the devise to lapse. Does not require that some prop be transferred to intervivos trust during lifetime, nor does it require that the trust instrument be executed before or concurrently w/ will. Mayo Unfunded Life ins trust. Valid. Advantages: Prop management by a fiduciary; keep title clear; income/gift taxes; dealing w/ incomp Consequences of Death of Settlor: Costs; Delays; Creditors; Ancillary Probate; Avoid Restrictions Protecting Family Members and Placed on Testamentary Trusts; Choose the law of another jurisdiction to govern; Avoid will contests and mult. probate; Estate taxation; Control a sss disposition; Custodial trusts (some states); CONSTRUCTION OF WILLS Interpretation of Wills: Maj.: plain meaning rule (intent, no extrinsic evid/no reformation). No extrinsic evid of meaning Mahoney: only where testamentary language is not clear in its application to facts that evid may be introduced as to the circumstances under which the T used that language

in order to shed light upon its meaning. Where no doubt as to prop bequeathed or the identity of the B there is no room for extrinsic evid. Extrinsic Evid: admissible to explain any ambiguity arising on the face of a will, or latent ambiguity which does not so appear. allowed for misdescription; personal usage; statutory reasons dependant relative revocationharmless error (c/c ev); scriveners error; execution of a will; latent ambiguity; Russell, Fleming: e/e for improper execution sex. Patent Ambiguity: face of will as to meaning of provision, Ts intent is to be ascertained from the words of the will (and circumstances of execution may be taken into account). Not allowed for intent unless there are 2 susceptible meanings. Latent Amb: not apparent on its face but appears when the terms of the will are applied to the Ts prop or designated Bs. any evid can be brought in to show the existence of an ambiguity. After an amb exists, e/e be used to show the meaning of an ambiguity. Ts intent shown ONLY through circumstantial ev no direct ev. Equivocation: where a description fits 2 or more external objects equally well (same name), direct expressions of Ts intent are admissible. Misdescription: of prop or person, does not make the instrument inoperative, but a false description may be stricken Personal Use Exception T always referred to a person in an idiosyncratic manner Correcting Mistakes Generally, courts WILL NOT correct mistakes in documents (C/L). Erickson marriage; ct allowed e/e of intent. Exceptions Insane Delusion; DRR; mis-description, fraud, UI. Restatement: allows reformation of donative docs if establish mistake of law or fact, and what Ds intent was. evid of the scriveners error admissible if scr err and intent can be shown by c/c ev. ANTILAPSE STATUTES: substitue other Bs for the dead B if certain requirements are met. Usually devisee must have certain relationship to T, if so, goes to his issue. Applies to lapsed gift only if the devisee has relationship. ASK: alternative B? Is original B w/in lineage? Does B have issue? No lapse language? Process: When B predeceases T (or disclaimer, homicide, etc) issue of B will take if they survive by 120 hours. Only descendents of grandparents, not spouses. Generally, words of survivorship in the devise indicated intent that the anti-lapse statute not apply but (1990)changed this. Nonprobate Transfers. POD K law, 3d pty beneficiaries not req to survive and may pass K rights to heirs or devisee. Revocable Trusts no req of survivorship for remainder. Joint Tenancy antilapse statutes cannot apply bc the interest vanishes at death. Death of B Before Death of T C/L: default rules, apply unless the will provides what happens when B predeceases T. If devisee does not survive T, devise lapses (fails) and goes to Ts residuary devisee or heirs (in absence of res devisee). If a specific or general devise lapses, devise falls into the residue. No-residue-of-a-residue rule If devise of entire residue lapses, heirs of T take by intestacy. If a share of residue lapses, lapsed residuary share passes by intestacy to Ts heirs. UPC 2-604(b): overturns this in maj. of states. Class Gift If devise is to class of persons, and one member of the class predeceases the T, the surviving members of the class divide the gift. Restatement: the presumption is that the named indiv and the group form one class. UPC 2-605: almost all states apply antilapse to class gifts. [antilapse] check for

group minded lang. A gift to A and the children of B is a gift to ind and class in absence of other factors. Thus, if A dies before T, his share lapses and does not pass to children of B. if he survives me- evid that statute doesnt apply (maj), 1990 UPC reverses, applies to step children also. Void devise: Where devisee dead at time will executed, devise is void Changes in Prop After Execution of Will: Specific Devise: specific item of Ts prop General Legacy: $. If not enough for bequest, assets must be sold to satisfy Bs claim. Demonstrative: gen legacy payable from spec source (10k from sale of GM stock)- if T sold stock, no ademption Ademption by Extinction: T makes spec devise by will and subsequently changes prop devised, sells, gets rid, T subsequently dies w/o changing will, spec devise adeemed (real prop). Fails. Identity theory: when a T disposes, during lifetime, of subject of specific legacy or devise in a will, legacy or devise is held adeemed, Ts intent doesnt matter. C/l merely examines where prop is located at time of death.. 69UPC uses id theory, 90 version adopts intent approach: creating a mild presump against ademption, party claiming ademption has bop. Juris following identity Exceptions: classify the devise as general or deomonstrative rather than specific (no my), classify inter vivos disposition as a change in form, not substance (corp merger or reorg, B takes stock of new), construe the meaning of the will as of the time of death rather than as of the time of execution (car owned at death), create exceptions (ademption requires voluntary act of the T). UPC 2-606: non ademption- unpaid proceeds of sale, condemnation, insurance (4 states). Bank account:closed, CDs purchased adeemed. Stock splits v. dividends: absent contrary intent, a devisee of stock is entitled to additional shares received by T as a result of stock split (different for dividends)- UPC doesnt follow Doctrine of Satisfaction Transfer in lieu of a devise (spec and gen). when T makes trnfr after executing will. Depends on intent, but rebuttable. Only to general pecuniary bequests. Many states: presump reversed unless T puts it in writing at the time of gift Abatement T attempts to give away more prop in the Ts will than the T is actually able to give. Intestate, residuary, general, specific. Exhoneration of Liens presumed, absent contrary lang in will, that T wanted debt to be paid out of residuary. UPC 2-607 reverses. TRUSTS Trstee, Res, B T: will never fail w/o a trstee R: will not survive, need some prop in it B: no, must be a B to force the trstee to do something (charitable trsts dont have specific ones) private: exceptions- animals, mausoleums, otherwise you have to name an individual, group of individuals that are easily definable. If fails- resulting trst, reversion that goes back to Ss estate or S. dispositive provisions fix the Bs interests. Administrative provisions fix the trstees duties and powers. inter vivos trst created by declaration of trst during Ss life, where the S declares he holds certain prop in trst, or by a deed of trst, where the S transfers prop to another person as trstee, must be delivered. The remaindermen have equitable title to remainder, no merger of title. No res required if S executes pour over will.

Trstee holds legal title to the trst; the beneficiaries have an equitable interest. fid duties. Trstee must accept the position to become liable. trst will not fail for lack of a named trstee. If created by deed of trst, passive or dry trstee w/ no duties causes trst to fail. Duties: fairness in investment decisions, keep trst property separate from own, keep accurate records. Creation of a Trst creation of 1 or more equitable furture interests as well as a present interest in the income. No particular form of words. Did S manifest an intention to create trst. Where S is T an oral declaration of trst is sufficient, but if real property, must be in writing. A transfer of prop w/ intent to vest beneficial ownership on third person is sufficient to create trst. Trstees have a duty to administer trst for the sole benefit of the beneficiaries (Jiminez). Precatory Language wish or desire expressed in trst that does not create a legal obligation. Equitable disharge person devises prop, subject to paymt of $ to another, T creates equitable charge, not trst. no fiduciary relationship. Hebrew U: creation of trst requires statement declaring donor as trstee- it is not suff to declare himself donor, must manifest an intention to impose on himself enforceable duties of a trst. nature trst will not be used to effect trnsfr which fails as iv gift for lack of delivery. ok w/ const. delivery for gift- Restatement view Revocable Trst: testamentary trust, court supervises and trstee must account to court Necessity of Trst Prop TBR res may be any transferable int in prop (contingent remainders, life estates, royalties, life ins) Unthank ($200). Resulting Trst: an express trst fails or makes an incomplete disposition; one person pays the purchase price for prop and causes title to be taken in name of another person who is not natural object of purchasers bounty of purchaser ($ in RT). Once resulting trst is found, trstee must reconvey prop on demand. Statute of frauds N/A. Special Needs Trsts: trst that is going to mesh w/ the government benefits that the child is entitled to, need to have language in the trst, irrevocable, must be impossible for the child to ask for/have control over benefits, trstee must have full discretion, make clear not a support trst, but special needs. Dont give to another family member on behalf of the child. Gratuitous Trst: S has to give the trstee the prop (has to be delivery), S, trstee and sole B cannot exist as same. Reasons for one (1) probate avoidance, (2) want someone to have a successive interest in a prop (3) asset management (4) tax avoidance Pet Trst: IN: animals have to be in being at the time the trst has been created, ends when the last one dies Constructive Trst equitable remedy used to prevent unjust enrichment. A confidential or fiduciary relationship; an express or implied promise by the transferee; a transfer of prop in reliance on the promise and unjust enrichment of the transferee. fraud, murder, UI, breach of k not to make will, oral trsts that violate sof, secret testamentary trst, mistake, medicaid Change of Position If donee, in reliance on gift, changes position so much that inequitable to preclude trfr, ct will impose eq conveyance Effect of Death of Donor if nat object; const trst Brainard (trst) expectancy cannot be subject matter of trst and an attempted creation, being merely promise to transfer prop in future, is invalid unless supported by consideration. (not ok as trst). No future profits, selling stock- T: income, B: profits Speelman (gift) All that was necessary to be established was an intention that the title of the donor be presently divested and presently transferred as stated in the letter. Future profits, distinction may boil

down to whether there is something assignable (OK as gift). Honorary Trst The trst remains in the trstees name w/ his conscience to dictate the trsts use. Noncharitable, nonhuman purpose. Searight (dog). Grantor Trust: trust in which the income is taxable bc the S has retained substantial control Oral Inter Vivos Trsts of Land Where owner of int in land transfer it inter vivos to another in trst for transferor, but no writing outlining agreement as required by SOF and transferee refuses to perform trst, transferee holds int upon conste trst for transferor. if there exists a confidential relationship between the parties- a confidential relationship must be more than a parent/child relationship; must be relationship of trst and confidence. Hieble: son in a confidential relationship w/ mother, enforced. Pappas: getting a divorce, conveys to son, son wont give it back, must have clean hands, cant recover bc of fraud. Secret Trst: trst has been created and no one knows the terms except for settlor and trstee, cant hold for purposes of unjust enrichment. transfer in will w/ accompanying trst, but no indication of trsts existence. (const trst) Semi-secret Trst: indication of the trsts existence in will, but no identifiable beneficiaries or purpose. The trst will fail. It will cause a resulting trst in transferee. Olliffe: reverend wells will know what to do w/ this- void- goes to resulting trst. In England both are enforced by constructive Discretionary Trst trstee has discretion over payment of either tincome or principal or both. act in good faith, honestly, and for purposes settlor stated in trst. Duty to inquire (Marsman con trst). Bs creds cant reach prop in a discretionary trst until discretion exercised by trstee. SPRAY- must distribute all current income, but descretion as to who gets what $ Mandatory Trst trstee must distribute all income by predesiganted distributions. Spendthrift Trsts: only available to those w/ wealth. Not for those who have created a trst for themselves (made themselves wealthy). Some states have statutes which protect those trsts which are self settled (protective trsts, but cannot be created fraudulently). Beneficiaries cannot voluntarily alienate their interests nor can their creditors reach their interests. Exceptions: self settled trusts, child support/alimony, furnishing necessary support, fed tax lien, excess over amount need for support, % levy. Shelley: policy requires that interests of B of a trust should be subject to claims for cld sppt and ali, but H had no interest Dynasty/Perpetual Trst: more states are repealing their rules against perpetuities so people create private/charitable trst, a technique which allows creator to pass wealth from generation to generation to avoid taxes (disclaimer):AL/AZ/CO/DE/FL/ID/IL/ME/MO/N J/OH/WI/VI Support Trsts Trsts making payments as necessary for Bs support Incentive Trst: want to make children more responsible. Education, moral incentives, pursue a career. W Buffet: leave them enough that they can do anything but not so much that they can do nothing Modification and Termination of Trsts If the settlor and all beneficiaries consent, a trst can be modified or terminated, even if the trst contains a spendthrift clause. A trst will normally terminate, (1) revocation by settlor, (2) death of last life income B, (3) at the end of a prescribed number of yrs, (4) when purpose of the trst has been accomplished. May be prematurely revocated or modified when they are

revocable, but must follow terms of trst or they will be in violation. If no power to revoke, need consent of beneficiaries to make any changes, or if there has been invested power in someone else, when circumstance not know by settlor, after settlor dies purposes become frustrated. Material Purpose Doctrine (termination) Claflin Doct. A trust cannot be terminated prior to the time fixed for termination, even though all the Bs consent, if termination would be contrary to a material purpose of the S. generally: cant terminate if: spendthrift trust, if B is not to receive principal until attaining a certain age, if discretionary, or if it is a trust for support of B. active trst may not be terminated, even w/ consent of all beneficiaries if material purpose of the settlor remains to be accomplished. Modification: if S and Bs consent, if S dead (eng) trst can be terminated if all Bs are adults and consent, or modified or term if trst is on behalf of incompetent, minor. US: Ss intent cant be set aside after death, and purposes would not be frustrated by doing so. Where purposes for which trust has been created have been accomplished and all fo the beneficiaries are sui juris, a court will, on application of all of the beneficiaries or of one possessing the entire beneficial interest declare termination. Restatement: crt will not permit or direct the trustee to deviate from the terms of the trst merely because such deviation would be more advantageous for the B than compliance administrative problem -trstee can petition court for a change. Succ;essive interests Charitable Trsts: must have charitable purpose: (often governed by the IRC) education, religious, community benefit=charitable benefit, i.e. relief from poverty; advancement of education; advancement of religion; promotion of health; government or municipal purpose; or purposes beneficial to the community as a whole. A trst from which the income is to be paid at stated intervals to each member of a designated segment of the public, w/o regard to whether the recipients are poor or in need is mere benevolence and not a charity. No ascertainable B: may be able to pick them depending on the purpose of the trst. Shenandoah Valley National Bank v. Taylor (Candy Trst): wanted the trst to give out money to 1, 2, 3 grade on Easter and Christmas. Charitable trst vs. benevolent trst (acts dictated by mere kindness, good will, or a disposition to do good- had to comply w/ rule of perpetuities), didnt here so cousins get the money. Where gift in mere financial enrichment, a trst is sustained only where court finds from the entire context of the will that the ultimate intended recipients were poor or in need Mortmain statutes: permitted spouses and cc to set aside death bed will making gifts to charities (have repealed in all states but GA) Modification of Charitable Trsts Cy Pres: means as nearly as possible. Can work outside the rule of perpetuities. In re Neher: small town wanted her home turned into a hospital, already had one, looked to general purpose (helping the city), now used as administration building for hospital. When using cy pres, ask if its impossible, impracticable, or illegal to accomplish trsts purpose. Waste: allow for modification. Presump: rather than the trstee having to come in and prove general and charitable intended, presume under UPC/UTC that the settlor had general purpose, burden shifts to find specific intent. Restatement: cy pres if property is given in trust to be applied to a particular charitable purpose and it is or becomes impossible or impracitable or illegal to carry out particular purpose, and if the S

manifested a more general intention to devote the property to charitable purpose, trst will not fail but the court will direct the application of the prop to some charitable purpose which falls within the general charitable intention of the S. UTA: provides that a court may apply cy pres if a particular charitable purpose becomes unlawful, impracitable, impossible to fulfill, or wasteful Administrative Deviation: courts more wiling to deviate from administrative terms of trust, rather than dispositive terms. A court will permit deviation in admin terms of a trust when compliance would defeat or substantially impair the accomplishment of the purposes of the trust. If trust losing $, but there is a rule that doesnt allow change in investment, court may allow to keep trust from losing $, but if getting Ss intent for disposition, must show one of the cy pres requirements Racially or gender restrictive: public-violate equal protection, private- do not. May violate state and local race laws. Gend restricted do not violate ep The Fiduciary Obligation Duty of Loyalty: Self-Dealing: no further inquiry is made as to a trstees motives. trstees good faith and the reasonableness of his motives are irrelevant. D = settlor authorization, full disclosure to beneficiaries. Conflict of Interest: nostrict liability. no liability if transaction is fair and if trstee receives fair price for prop. Duties relating to Care of Prop;Duty to Earmark Prop;Duty to not commingle trst funds w/ the Trstees personal funds;Duty NOT to Delegate;Liability for Contracts and Torts; Duty of Impartiality UTA: exculpatory clause presumed to be result of abuse of fiduciary relationship unless trustee proves that it is fair and that S was adequately notified. Allows for modification of trust when widow cant live comfortably on income, if modification will substantially further Ss purpose in creating the trust. Allows change of trustee if there is a lack of cooperation that impairs administration of trust, and if investment decisions have resulted in investment performance that is substantially lower than comparable trust, or unfitness. UNITRUST: income B is entitled not to actual income earned by to a fixed % (allows trustee to invest in assets that will result in capital gains, then distribute some of principal to income Bs) UTTAH: a trst may be created for prop w/o a will POWERS OF APPOINTMENT Types of powers: in trust Bs are owners that give the B the ability to determine who will enjoy/use property. Allows to deal flexibly with changing circumstances in the future (law/economy) Terms: donor- person who creates the poa, usually the S of the trst or the T, donee- person who holds poa, objects of power: person in whose favor the power may be exercised. Appointee- person in whos favor the power HAS BEEN exercised (property becomes appointive prop). Takers in default: instruemtn may provide for people to take in event power is not exercised, if not named, property passes back to donor. General power of appt: power which is exercisable in favor of the decedent (donee, his estate, his creditors, or the creditors of his estate. Close to being full owner, bt no until power exercised. Special power of appt: any power that is not a general power, donee is limited as to who he can select to enjoy (power to appt among the issue of donee), allows donee do exercise the power in favor of another, but cannot appoint the prop to himself

Testamentary power: power exercisable only by will, alternative is power exercisable by deed (exercisable power) Creation of a power of appt. to create, the donor must manifest an intent to do so, either expressly or by implication (no particular words are necessary). Precatory words do not create a power of appt in the absence of other circumstances indicating a contrary intent Release of power of appt. donee cannot legally contract to make an appt in the future. If power is released, look at trst instrument to see what happens to prop. All (except powers in trst or imperative powers) are releasable in all jurisdictions. Can release, but goes back to takers in default, if there are none, might go back to the donors estate, might now go to donees estate. All powers of appt except powers in trust or imperative powers have been made releasable in all jurisdictions Restatement: passes to the donees, if there are takers in default and failure to exercise, goes to takers in default, also applies to ineffectively exercised general powers (blanket exercise, failure to specify, trying to exercise through a blanket exercise). Rule of Repugnancy: majority rule: if a deed or will conveys an absolute title in fee simple, an inconsistent clause in the instrument attempting to merely limit that title or convey to the same person a limited tilte in the same land will be disregarded. Special power: to a class, is not exercised, no takers in default? Lorring v. Marshall: sometimes courts will imply a taker in default or Exercise of a power of appt. UPC 2-608: in absence of requirement by donor in creating instrument that a power be exercised by express or specific reference to the power, a general residuary clause in a will or will making general disposition of Ts prop ONLY express an intention to exercise if: power is a general power and the creating instrument doesnt contain a gift if the power isnt exercised (doesnt list takers in default) or, Ts will manifests an intention to include the prop subject to the power (if no requirement for express or specific reference, a residuary clause will exercise a GPOA if the trust instrument doesnt list takers in default. Limitations on exercise of special power: maj: a donee of a general power of appt can appoint outright or in further trust and can create new powers of appt, special power- may not be able to appoint in further trst unless the creating instrument expressly permits UPC 2-704: Meaning of specific reference req: if instrument creating power requires reference, it is presumed that donors intention in requiring was to prevent an inadvertent ex of the power. Mere blending clasue doesnt make specific refernce, but if ex evidence shows that the donee intended to ex the power, maybe Residuary clause: maj: does not exercise a power of appt (either gen or special) held by t. min: exercises general power of appt unless a contrary intent affirmatively appears. NY-special if objects Anti-lapse: gen power- yes, spec- usually no, but descendent must be related to T/donee for antilapse Specific reference: provides description of poa, where you got it from Express reference says you are exercising a power and where you got it from Blending clause: clause gives away all your prop and all prop over which you had poa Failure to exercise: if donee of GPOA fails to exercise, the appointive prop passes in default of appt. if no gift in default, the prop reverts back to the donors estate. If donee of special power fails, and there is no gift in default, the appointive prop MAY

(if objects are defined limited class) pass to the object of power. No takers in default left, prop not appointed goes in equal shares to the members of the class to whom the prop could have been appointed. Imperative special POA: when creating instrument manifests an intent that the permissible appointees be benefited even if the donee fails to exercise power. If a special power is imperative, the donee must exercise it or the court will divide the assets equally among the potential appointees (bc no takers in default listed) RESTATEMENT: changes common law- donee of special power can created a gen power in an object of special power or create a special power in any person to appoint to an object of the original special power. Exclusive vs. Non exclusive: E: if the donee can exclude entirely one or more objects of the power. Non: if the donee must appoint some amount to each permissible object (depends on Ds intent as revelaed by the creating instrument- to 1 or more=exclusive). If no intent revealed, look at presump of jurisdiction (restatement- in absence of contrary intent special powers are presumptively EXCLUSIVE)
CASES: Hodell vs. Irving: 80s SC determined right to pass prop had a constitutional effect. Shapira v. Union National Bank: Dead hand/restatement, notion that Ts intent wants to should be given effect. Shelly vs. Kramer: when a crt is involved, need state action, when getting involved in violating constitutional right. Lovings v. Virginia: crt says not controlling the right to marry, just the money. Brainard: stocks interst, no res, vs. Speelman: future earnings sufficient property interest

DIFFERENCES BETWEEN UPCS 2008: Inflation adjustments: the supplemental electiveshare amount under 2-202(b): 75k (was 50k). Raises $ by 50% in Article II sections (partnership economic theory).50% of the augmented estate. Share of spouse 2102 (300k, 225, 150 was 200k, 150, 100), Share of Spouse: 2-201 (50% instead of 1/3), Homestead: 2-402 (22500, was 15k), Exempt prop: 2-403 15k (was 10), 2405, added new cost of living adjustment section 1-109. Intestacy: part 1 was divided into 2 subparts. (1) on general rules of intestacy and (2) on parent child relationships (non-marital/adopted/assisted reproduction). Execution of wills: execution; witnessed or notarized; holographic wills 2-502: amended to allow notarized wills as an alternative to wills that are attested by 2 ws. necessitated minor revisions to 2-504 on self proved wills (only attested) and to 3-406- effect of notarized wills in contested cases. Class Gifts: 2-705 revised. Reformation and Modfication: new sections Reformation to correct mistakes 2-805 and Modification to achieve transferors tax objectives 2-806 brought the reformation and modification s now contained in the UTC into UPC.
102(1)(A): spouse, no decedents and no parents surviving spouse gets everything 102(1)B): spouse, surviving decedents surviving spouse gets everything 102(2): spouse, no decedents, but parents gets $300,000 (can be adjusted for cost of living plus of whats left, rest goes to parents 102(3): surviving spouse has a child that is not the decedents $225,000 + to spouse if decedents of spouse, decedents descendents get whats left over, but spouse has their own descendents they get none 102(4) if one or more of the descendents is not the spouses, the left over goes to the rest of the descendents 103(A)1: goes to all the descendents, if one dies, it further goes down by representations 103(a)(2): no spouse, no descendents goes to all the parents equally 103(a)(3): no spouse, no parents, no descendents, but brothers and sisters brothers and sisters will get it and by representation 103(a(4) no spouse, no descendents, no parents, no brothers or sisters, but grandparents or representatives of such and for both sides of grandparents by representation 103(a)(5) no spouse, no descendents, no parents, no brothers and sisters, but grandparents or representatives of such goes to whichever side died 103(b)(1) none of the above, deceased spouse with his or her children (stepchildren) would go to stepchildren by representations 103(b)(2) none of the above, deceased spouse(s) with his or her children (stepchildren) more than one deceased spouse, goes to stepchildren the last stop is that it escheats to the estate change in language as far as if it goes on, as far as by capita and deceased spouses are new. IN: one half of the net estate for surviving spouse, if surviving children if survived by no children