I. Introduction
A. Terminology
1. Descentintestate entitlement of heirs at law (realty)
2. Distributionintestate entitlement of next of kin (personalty)
3. Linealsancestors and descendants in the blood line, such as parents, grandparents,
grandchildren, etc.
4. Collateralsnon lineal relatives who are related by blood or adopted (aunt, uncles,
cousins, etc.)
5. Testate
a. Testatorperson who makes a will
b. Attested Willswills that are witnessed
c. Holographic Willsunwittnessed, signed by testator and handwritten material
d. Devisegift of realty under will (devisee)
e. Bequestgift of personalty by will
f. Legacygift of cash by will
g. Codicildocuments executed with all the formalities of a will which add, delete,
or change provisions in a will
6. Probateprocess of proving after a testator’s death that her will is valid
a. Executorappointed by will
b. Administratorappointed by court
c. Function of Probatetransfer title, make sure its clear, protect creditors,
distribute the rest
B. Testamentary Power
1. Historicalstatute of will, statute of frauds, wills act
2. UPCadopted in whole or in part by about 1/3 of the states
3. Restatements
4. Constitutional PrinciplesBefore Hodel, generally viewed as solely out of statute
a. Hodel v. Irvingcourt held invalid under taking clause of the 5th Amendment a
federal statute under which Indian lands could not pass but instead escheated to
the tribe (Constitution prohibited Congress from totally abolishing both descent and
devise)
1. Problems with holding: Is the right really abolished if you can still transfer
inter vivos? Is regulatory takings analysis a good fit for inheritance
discussion? Never says right to transfer/pass on property is constitutional
right, but just says it is tied to Anglo American scheme of law.
D. Taxation, Improvidence, and Inheritance
1. Taxationtestamentary freedom is disrupted by taxation (estate, gift, generation
skipping tax)
2. Dissipation of Wealth; Improvidenceno system does as effective a job of redistribution
as taxation and improvidence
E. Competing Intereststensions between living beneficiaries and decedent s
1. Taxationdirect taxes on wealth transfers
2. Tensions Among Beneficiaries
3. Claims by Third Partiescreditors, spouses, greedy children, charities, etc.
4. Control from the Gravedead hand desire (Rule Against Perpetuities) but it is respected
in some areas of the law
a. Condition a gift on marriageShapira v. Union National Bankfathers will
conditioning his son’s inheritance on the son being married to a Jewish woman and
whose parents were both Jewish was upheld
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1. If it was conditioned on the son not marry at all, it would have been void
for public policy but reasonable restrictions on marriage are valid
5. Elective Share Rights
F. Probate and Non-probate Transfers
1. Non-probate Transfers: Will Substitutes
a. Life Insuranceowner may designate a beneficiary to receive the proceeds of
the policy and upon death, they are payable without regard to terms of the will or
intestacy
b. Retirement Plan InterestsParticipant/Employee in an employer’s retirement
plan and the owner of an individual retirement account (IRA) may designate one or
more to receive benefits without regard to will
c. Joint Tenancy PropertyPasses to surviving joint tenant regardless of will or
intestacy
d. Other payable on Death Arrangements (POD)Many states allow bank accounts,
and some allow securities such as stocks and bonds to be payable on that person’s
death directly to a beneficiary
e. TrustDepending on terms of the agreement
i. Exception for testamentary power of appointment (if decedent had and
exercised a power of appointment over trust property, then it passes on
death in accordance with the exercise of that power but still probably not
probate
f. Small Estatestates may allow estates to be collected upon affidavit for small
estates (which ranger between 5K-100K dollars), which don’t give title, just
possession
f. Estate Planning ImplicationsCritical to consider non-probate property when
doing estate planning
2. Probate Propertypasses under terms of will or intestacy
3. Probate Administrationprocess by which title to probate property of a decedent is
transferred to her heirs or devisees in each case after payment of all legitimate charges
against the estate (taxes, debts, costs of administration)
a. Probate vs. Probate AdministrationProbate is process of validating the will, and
usually can be admitted in less than a month, whereas probate administration is
almost for a period of months or even years.
b. Necessity of Probate AdministrationIf no probate property, don’t need
administration or some other circumstances
i. Tangible Personalty
1. only tangible personal property such as household furnishing
2. no dispute among decedents surviving family members and
3. claims of creditors can be resolved without dispute
ii. RealtyIf probate property included real estate, a probate administration
will probably be necessary because they need to be able to prove clear title
to real estate
iii. Third parties—L If asset controlled by a third party, such as a bank
account or securities, third party may require probate to release the asset
c. Probate Administration Procedureform varies from state to state
i. court supervision of personal representative
ii. Under UPCstreamlined and flexible (can occur without prior notice and
without judicial involvement if no one interested requests formal
proceedings
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iii. If there is a will, you file the original and it becomes property of the state,
then you give notice to potential beneficiaries, etc, and letters are issued
that give the administrator or executor authority from the court
d. Choosing the Personal Representativefamily members, banks, trust
companies, business associates
i. Duties of the Administratorcollect assets, manage, receive and pay
creditors claims, distribute the rest
ii. Role of the Attorneymany times representatives have attorneys to help
ii. creditors of decedentmost states have special statutes of limitation that
require creditors to submit their claims within a short period of time
iii. Other potential claimantsmay be duty to notify potential claimants
e. Why try to avoid probate process? Money, time, uncertainty
G. Attorney Duties to Client
1. Simpson v. CalivasDuty runs from a drafting attorney to an intended beneficiary (third
party beneficiary status) because there is foreseeability of liability of heirs and
beneficiaries can sue for malpractice.
2. Hoytz v. MinyardIssue as to whether attorney owed Judy a duty to deal with her in
good faith as there is evidence she had a special confidence in him
H. Who May InheritState Definitions of FamilySurviving Spouse
1.Peffely-Warner v. BowenA woman partner in a meretricious relationship is not a widow
with respect to intestate devolution (or social security act)
a. Three tests to determine:
1. Valid Marriage Test
2. Intestacy Devolution Test
3. Legal Impediment test
2. In re Estate of CooperNY refusal to allow same sex marriages does not violate the
Equal Protection Clause. Survivor of a homosexual relationship alleged to be a spousal
relationship is not entitled to election against decedent’s will
3. In re Estate of GardinerPost operative male to female transsexual, married MG, court
held marriage void (look at their birth certificate)opposite sex in the narrow sense
4. Status Based (relationship must be recognized by the state) for intestacy and surviving
spouse statutes
a. Exception: Common Law Marriage (only 11 states, and limited to opposite sex)
5. Divorce or annulmentnot a spouse for intestate succession purposes
6. Formal Separationnot divorced and is considered a spouse (unless order purports to
terminate all marital rights
7. Desertion or Adulterygenerally won’t affect marital status, spouse
8. Common law Marriages
a. Majoritynot spouse
b. Minoritypersons who live together as husband and wife and hold themselves
out to the public as such but no formal marriage ceremony are treated as being
married
I. Who May InheritState Definitions of a FamilyDescendants
1. Posthumous ChildrenWhere, for purposes of inheritance, it is to a child’s advantage to
be treated as in being from the time of conception rather than the time of birth, the child
will be so treated If born alive
a. Time of gestation (rebuttal presumption)280 days
2. Adopted Children
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a. Hall v. Vallandinghamstatute in which adoption by a step parent cut off
inheriting from ancestors of a deceased natural parent (elimination of dual
inheritance was upheld)
b. UPCchildren can inherit from natural relatives but natural relatives can’t inherit
from them.
c. Some states allow inheritance from both natural and adoptive parents if a
stepparent adopts the child
d. Some statues allow for inheritance if it is clear that relationship was one of
parent and child and it is established that they would have adopted but for a legal
barrier
e. Some statues distinguish between minor and adult adoption (adult “lovers” may
use this in order to inherit)
f. O’Neal v. Wilkesbecause aunt had no authority to enter into an adoption
contract, it was invalid and child couldn’t inherit through intestacy
g. Adoption
Common Law
Modern Statutes
Natural
Adoptive
Natural
Adoptive
Y
Y
inherit from
N
Y
Y
N
inherit through
N
Y
Y
N
parents inherit
N
Y
h. Equitable Adoptionsomeone who has not been formally adopted may be
treated as adopted for inheritance purposes
1. Rationaleprotect against consequences of reliance on an adoption that
was not properly performed
2. Requirements—GA: 1. agreement fro adoption between natural and
adopting parents, 2. natural parents give up custody, 3 the child lives with
the adopting parents, and 4. the adopting parents treat the child as a
natural child (THIS IS NOT IN EVERY STATE)
3. O’Neal v. Wilkeschild not acknowledged by her natural father, mother
died, and place with couple who raised her as their natural child by another
family member. Court denied virtual adoption because no one with the
authority to consent to the adoption did so
4. Virtual adoption parents and their relatives are not heirs of the child
i. Common Adoption Issues
1. Retroactivitynatural born under documents that were in existence
before a statute treating adopted as natural born were enacted
2. Applicability to Class Giftssome appear only to apply to intestacy and
there is a question about class gift (vs. UPC applies to all three situations)
3. Nonmarital Childrenchildren of unmarried parents were given harsh treatment by the
common law (couldn’t inherit from neither father nor mother) and only child’s spouse and
descendents could inherit
a. Today, all jurisdictions permit inheritance from the mother but rules regarding
father vary
1. Trimble v. GordonSC held that denying a nonmarital child inheritance
rights violated Equal Protection Clause using strict scrutiny test even though
not a suspect class, but Lalli held that you could permit inheritance only if
father had married mother or had been formally adjudicated the father by a
court during father’s lifetime
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2. Uniform Parentage Actadopted in one third of states, presumed to have
a parent child relationship if:
a. while the child is a minor, the father receives the child into his
home and openly holds out the child as his natural child or
b. acknowledges paternity in a writing filed appropriately
3. In most states, paternity can be proven after death by clear and
convincing evidence
4. UPCif the father openly acknowledges and supports the child
4. Artificial Insemination
a. Woodward v. Social Securitychildren who are artificially inseminated are
entitled to inheritance of children if father dies before birth if it is shown that it is
the genetic child of the father and that he affirmatively consented to conception
-look at statue to determine intestacy (not a natural or constitutional right)
-children should all be treated the same (vs. rights of other family members)
b. In some jurisdictions, birth is treated as natural and husband of mother is treated
as natural father
c. Man who provided is not eh parent unless he is mother’s husband
d. Surrogate Motherhoodwife of natural father may not be mother without a
formal adoption
e. Hecht v. Superior Courtcourt upheld devise to decedent’s girlfriend of sperm
that he had stored with a sperm bank (is a child conceived after the death of the donor
allowed to inherit as an heir?)
5. Half Bloods and Step Siblingsmost states no longer discriminate against adopteds or
nonmarital children, but some still provide different shares for half bloods
a. Majority Rule(UPC)share equal, but in a few states, half bloods receive half
the share a full blood would get
b. Step Siblings are not heirs in most states
6. Aliensmost modern statues have no discrimination against them but some do
II. The Default: Intestate Succession
A. Intestate Succession in GeneralStatutory Estate Plan (legislature’s guess at what
average decedent would want done with her property)
1. Property Subject to Intestate Successionprobate property only
a. Abolition of Dower and Curtsey (assumed here)
b. Net Probate Estatereduced by taxes, debts, administrative expense, etc.
2. Governing Lawstatue statutes in the state where resident for personalty and
where land is located for realty (and differences in state law occur)
B. Surviving SpouseThe share of a surviving spouse of intestate varies from state to
state (and may depend upon who survived)
1. UPCgenerally greater than share under non UPC
a. Fixed Dollar Amount (set by each state and UPC only makes
recommendation plus at least a fraction of any balance in the estate,
notwithstanding the existence of other potential beneficiaries
1. Support Theorysurviving spouse will need a certain minimum
amount to avoid being supported by state
b. Remaining estate under UPCentire estate to spouse if no descendant or
parent or if all of decedent’s descendants are also descendants of the
spouse
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c. This is different from traditional laws of intestacy
1. Descendants by another relationship of the decedent or spouse
Fixed dollar amount also varies if other kids
a. if kids from another marriagefixed amount is 100K
b. if survivor has kids from another marriage and all q
decedents’ kids were survivor’s, then 150K + ½ balance
2. Spouse’s share if no descendentsif parents survived, spouse
gets first 200K plus ¾ of the balance
2. Non-UPC statesless generous than UPC states (many limit to 1/3 or ½ of the
estate)
a. If decedent was not survived by any descendants, some states give all
3. Decedent’s Probable Intent
a. Entire Estate? Unless there are children by a former marriage, or
substantial family property, most decedents probably want the surviving
spouses to take the entire estate
4. Nonprobate Property Ignored
a. This may raise issues of disinheritance of spouse, which most jurisdictions
won’t allow
5. Survivorship
a. Janus v. TarasewiczS and T (spouses) died after having taken laced
Tylenol. Stanley pronounced dead that evening, but T on life support for two
days. Insurance named T as primary beneficiary and mother is contingent,
insurance company paid to T estate and court agreed that T did survive S.
b. Uniform Simultaneous Death Actunless will contains explicit
survivorship condition, most jurisdictions determine survivorship under
USDA, in which the prospective recipient of property is treated as having
predeceased the owner if there is not sufficient evidence as to the order of
death (this doesn’t apply, for example, in Janus, when there was adequate
evidence T outlived J.
c. UPCheir must survive an intestate decedent by more than 120 hours
6. Common Disaster Clausesshould plan for possibility of multiple deaths that
occur in rapid succession (this comes in form of common disaster clause that may
produce more problems than it solves)
C. Descendants: Representation(child’s descendants represent the dead child and
divide shares among themselves)
1. Per Stirpes every child takes what their parent would have, and if there is more
than one child, they divide the shares equally into however many children there are
-divide property into shares at the first level
Example: (D)—SS 1/2
(C1)
(C2) (C3)
GC1 GC2 GC3
1/8 1/8 ¼
a. Division occurs as if both children were alive
b. Division at child level regardless of whether any children are living
c. Equality under bloodlineseach child’s blood line will receive the same
share of D’s estate
d. If a child has no representatives, no share for him (C3)
Each line of descendants receives an equal share of the estate (make sure each
branch adds up to the same for each child of decedent)
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3. Per Capita Representationdivide shares at the level in which there is at least
one alive and provide for representation of any deceased descendant on that level
(then do same as per stirpes) (Old UPC)
Only difference with per stirpes is the level at which equality of lines starts
(make sure each branch adds up for each heir at which there is a living one)
4. Per Capita at each generation (1990 UPC)initial divisions made at level where
one or more alive but the shares of deceased persons on that level are treat as one
pot and dropped down and divided equally among representatives on the next level
make sure each generation has the same shares across the board
D. Ancestors and CollateralsTypically, if descendants, whatever doesn’t go to spouse
goes to them. If no descendants but a spouse, sometimes spouse gets all. In others (UPC)
that will be the case only if there is not some other heir. IF decedent not survived by any
descendants, the portion of the estate that doesn’t pass to a surviving spouse divided
among ancestors and collaterals
1. ParentsIf one or both parents survive, usually then passes to parents in equal
shares
a. Limitations on the Right to Inheritif a parent abandoned decedent as a
child, in many states they can’t inherit from that child
1. UPCIf parent openly treated child as a child and did not refuse to
support, then the parent can inherit
b. If no surviving parentsome such as UPC would leave all to surviving
spouse while others would leave share the parents would have received to
descendants of the parents
2. Parent’s Descendants (First line collaterals)Whatever spouse and parents
don’t take will pass to descendants of the decedent’s parents
3. More Remote Heirs: The Parentelic SystemIf no descendant, no parent or
descendant of a parent, some states follow parentelic system in which it goes up
and down the family tree again (grandparents-second line collaterals, etc.) and if
none, estate given to living descendants of the nearest lineal ancestor of whom
descendants are living (with representation)
a. To Grandparent or their descendants (1/2 to maternal or their
descendants and ½ to paternal or their descendants)
b. To more remote ancestors (great grandparents, etc.)
1. UPCdoesn’t recognize as heirs relatives who are more remote
than grandparents and their descendants
4. More Remote Heirs: The Degree of Relationship Systemadd the number of
steps from decedent up to nearest common ancestor to the number of steps down
from the common ancestor to the relative (so that everyone with same degree of
relationship gets the same amount)
5. Example #1
(MGP)
(PGP)
( Aunt)
(M) ----------(F)
Uncle
cousin
(D)
cousin cousin
a. degree of relationshipeach cousin gets 1/3
b. ParentelicMGP cousin gets ½, PGP cousins get 1/4
6. Example #2
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(MGGP)
(GA)
MGP
( PGP)
Moms
(M)-----(F)
(Uncle)
Cousin
(D)
(cousin)
(Cousins kid)
Cousins grandkid
a. Degree of relationship—moms cousin gets all
b. Parentelicmoms cousin and cousins grandkid gets all (descendant of
closest common ancestor)
7. Escheatwhat would apply if no one alive to take, then escheats to state
a. Laughing Heirssometimes states limit the extent to which ancestors and
collaterals of remote degree are heirs (UPC—Grandparents and
descendants)
designed to preclude property passing to someone who is so removed from
the decedent as to not be personally affected by death but who would laugh
all the way to the bank
8. Exam:
a. First, determine spouse’s share
b. If not entire estate or if no spouse, consider the shares of descendants
and representation issue (in most states, if not to spouse, then to
descendants
c. If no descendants, either all to spouse or decedent’s parents
d. IF no parents, then siblings and descendants of siblings
e. If no spouse, descendants, parent, sibling, then to no more remote
f. escheat
E. Partial IntestacyIf will doesn’t effectively dispose of her entire estate
1. Failure of part of Residuary GiftIf half to A and half to B but A predeceased the
testator, old common law rule said that ½ goes through intestacy but today the
majority of states and UPC say it goes to B
2. Negative WillsWhat if negative will that disinherits someone and part of estate
goes through intestacy?
a. Common Lawin order to disinherit, you must devise all of estate to other
people (you can’t just say I disinherit)
b. Majorityintestacy results in child taking despite will
1. Rationaleproperty undisposed of by the will passes outside of its
terms
c. UPCtestator may override application of the intestate succession statute
by use of a negative will and passes as if disinherited heir had
disclaimed/predeceased the decedent
F. Limitations on Inheritance
1. Homicidebars inheritance rights under intestacy (and under will) on maxim that
no man may profit by a wrong committed
a. Many states have statues but some don’t
1. In re Estate of Mahoneywife who killed her husband was
convicted of manslaughter and was his sole heir. Legal title
descended to wife under intestacy to be received by her in
constructive trust for the decedent’s other heirs (no slayer statue, no
intestacy statutes, equity decision) (have to determine if intentional
by preponderance of the evidence)
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Constructive trustshomicide, fraud, unjust enrichment
b. Slayer Statutesdifferent approaches and many glitches
a. who takes if slayer doesn’t?
1. UPCpasses as if slayer had disclaimed it
2. as if slayer predeceased the victim
3. passes to victims other heirs
c. What about nonprobate transfers and wills?
UPC includes all three
d. Preponderance of the evidence standard
2. Other Misconduct
a. Martial Misconductgenerally won’t bar inheritance
b. Refusal to support a childmay (UPC) but not common to bar inheritance
c. Abuse of an ElderCAL is deemed to have predeceased
3. Advancementsusually only applies to fully intestate estate (UPC applies to all)
a. Heirs subject to it
1. Used to only be children based on assumption that an intestate
would want to treat all children equally
2. Now some treat all descendants or even all heirs (UPC) but not a
spouse (but UPC does include spouse)
b. Issue if descendants of a donee who received an advancement and then
predeceased decedent
c. Proof of Intentat common law, gifts to children presumed to be
advancements but because the doctrine of advancements is not favored,
statutes in most states reverse presumption and require some proof
1. Contemporaneous Writing
2. Change of Intent
4. Disclaimerssometimes called renunciation, not recognized at common law but
statutes today typically allow
a. Why Disclaim?
1. Tax motivations
2. Avoid Creditors
b. Effect of a Disclaimer
1. UPCas if predeceased
c. Troy v. Hart-Medicaid recipient cannot disclaim and inheritance that would
allow the disclaimant to become self sufficient
5. Transfers to Minors
a. Guardian of the person has responsibility for the minor child’s custody and
care (one parent still living)
b. Management of property
1. Guardianship (conservatorship)doesn’t have title, can’t change
investments, duty to preserve and give at age eighteen unless a court
approves, can only use income to support ward, not the principal
without court approval
a. many states have revised laws and name conservator which
is like trustee and has much more flexible powers even though
appointment and court supervision is still required
2. Custodianshipgiven property to hold for the benefit of a minor
(under Uniform Transfers to Minors Act)property may be transferred
to a person as a custodian for the benefit of a minor, and has
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discretionary powers to expend for minor’s benefit without court
order, etc.
a. right to manage and reinvest property but is a fiduciary and
subject to standard of care of prudent person, not under
supervision of the court, when ward attains 21, transfers
property
3. Trustmost flexible alternative, can be tailored to specific
circumstances, etc.
III. Attempting to Manifest Intent: Wills (Testate Succession
A. Executing Wills
It is a will if it distributes property, names an executor, or revokes a prior will
1. Testamentary Capacity
a. Elements of Capacityanyone who is of requisite age and mentality
b. Minimum AgeStatutory (usually 18 and sometimes waived if married)
c. Mentality and Presumption of Capacity “of sound mind” presumed if proper
execution and witnesses
d. Test of Mental Capacitymost statues don’t address necessary capacity, so it is
usually resolved by case law
1. Four Part Testability to understand: a. nature and extent of property;
natural objects of the testator’s bounty (those persons who they “ought to
have in mind”; c. disposition being made; and d. how these three all interact
2. Actual Knowledge Not necessary (just must have ability to understand
even if he doesn’t)
3. Understanding the disposition being madegeneral pattern
4. Understanding natural objects of her bounty without providing for them
did testator know that her provisions were outside of the ordinary
5. Understanding the nature and Extent of Testator’s propertyonly needs
to understand the kinds and values of property she owns
6. Capacity for Other Tasksnot determinative whether they could contract,
conduct normal business, etc. (there is a greater capacity needed for those
things than there is for wills)
a. capacity to create a trust is higher than to execute a will
b. wards may have testamentary capacity
7. When Capacity is Necessaryat the moment of execution
B. Lack of Mental Capacity
1. Two Forms Invalidate a Will deficient capability (lacks one of the above things)
and derangement (paranoia, dementia, delusion
2. Possible Testsnatural (biological/genetic status or “orderly” (community norms)
Wrightisolated acts should be ignored unless they bear on the gift
(not insane, okay to cut off relatives who don’t care)
vs. Strittmaterinsane, relatives who didn’t take care got money
-Both tests required that you show insanity and that it was related to the gift
2. ParanoiaIn re Strittmatertestator left entire estate to National Women’s Party for
which she worked as a volunteer and of which she was a member. In holding the will
invalid, the court noted that the decedent’s doctor diagnosed her as suffering from
paranoia and considered, among other things, that decedent wrote that her father was a
corrupt vicious and unintelligent savage” was very anti males. According to court, evidence
showed she had an insane hatred towards men
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a. Questionable decisioncould have been abused, discriminated, etc. Reaction
might have been too severe but that is not relevant. Today, this would probably not
fail.
3. Insane Delusions—belief to which the testator adhered without knowledge or evidence
that a sane person would believe
a. Must affect the disposition under the will and conclusions must be ones that no
rational person would draw (some require that the falsity of conclusions were
pointed out and testator still continued to believe)
b. Credible Evidencenot insane delusion if it is based on evidence a rational
person could believe (will invalidate any portion of the will affected by it if it was one
that no rational person would believe)
c. In re Honigmandecedent substantially disinherited his wife, who had
participated in the business from which the wealth was accumulated, because he
believed she was fooling around with another man. She successfully challenged will
for lack of mental capacity even though decedent allegedly hid outside his home
and saw the other man enter the home while his wife was inside (if this was
believed, it would be enough to say a rational person could draw same conclusions,
but the jury didn’t believe it in this case)
d. Testators who meet the four-part test may nevertheless suffer derangement
sufficient to invalidate all or part of the will
4. Other mental characteristicseccentricities, peculiarities, exaggerated personality,
religious beliefs, supernatural beliefs will usually not invalidate a will on grounds of
insanity.
C. Testamentary Intent
1. Intention Required to be a valid will (intent that it be her will)
2. Lack of Testamentary Intent may serve as a will contest ground or a ground to deny
probate
3. Presumption of Testamentary Intentproper execution of a will raises a presumption
that the testator knew and understood will with requisite intent (rebuttal could be made)
4. Letter to an Attorneycommon source of challenge is a client who writes a letter to an
attorney asking that he prepares a will and sets forth the objectives. This is not a will
because client didn’t intend the letter to constitute a will
D. Undue Influence
1. Common Contest Groundprobably most frequent contest ground
2. Distinguishable from Fraud
3. What Influence is Undue?
a. Relates to execution of a will (directly connected with execution of a will)
1. Example: Child A and Child B hate each other, Child A talks parent into
leaving nothing to Child B. There is no undue influence if parent later
executes a will if Child A had nothing to do with the creation and execution
b. Improper Purposemust be directed toward procurement of a disposition in
favor of the influencer or someone the influencer wished to favor (and not if
directed at dispossessing someone else)
1. Example: Maherastestamentary gift to church was found to be product
of undue influence by spiritual advisor
c. Substitution of Desires of Influencer for free will of testatormust destroy
testator’s free will and result in a will that reflects wishes of influencer instead of
the testator
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1. This in many cases is determined by the susceptibility of the testator (a lot
of cases with elderly, dependent, weak willed testators)
2. Necessary to show what this testator thought and whether this testator
was influenced (subjectivity)
d. Coercion; Duress
1. Lawful vs. unlawful threatsexample is if a gun is to her head so she
signed but other threats, such as abandonment, may be enough to show
undue influences
4. Unnatural or Unjust provision will support but not prove undue influence
5. Proving Undue Influenceusually scant, circumstantial, hard to verify so many
jurisdiction say that proof of three elements shifts burden (testators susceptibility,
influencer’s opportunity to exercise control over testator, and influencer’s motive to
exercise control)
a. Presumption of Undue Influence if
1. Drafter of Beneficiarya drafter of a will that also benefits is presumed to
have exerted undue influence
a. Example: Lipper v. Weslowchild of testator was an attorney who
drafted her will and left estate equally to her two children by her
second marriage (in this case, the presumption was not applied but if
it had been the burden would have shifted to proponent of the will)
Test of undue influencesuch control was exercised over the
mind of the testatrix so as to overcome her free agency and
free will and substitute the will of another
How to avoid something like this when drafting
affidavit, put it in her words (it was full of legalese)
2. Confidential Relationshipconfidential or fiduciary relation if the
dominant party participated in preparation of the will (relationship alone is
not enough)
a. Relations coveredclergy, attorney, doctors, trustee, conservator,
close business partner, etc.
b. Drafting attorney/Beneficiarypresumption, except sometimes if
attorney is related to testator
1. NYsurrogate must investigate any bequest to an attorney,
who must submit affidavit explaining facts, etc.
2. In re Hendersonsubstantial bequest to a long time
attorney who suggested the client employ another lawyer to
draft the will, was also subject to judicial inquiry since it could
be inferred from the facts that the client did not have full
benefit of counseling form another independent lawyer
c. Rebutting the Presumptiondirect showing that testator was
strong willed and made her own decision or received independent
legal advice
6. Effect of Undue Influenceundue influence only invalidates the affected parts of the will
7. Bequests to Attorneyspresumption of undue influence
a. Natural Bequestno larger than if another drafter were involved may be
permissible without contest concerns
b. Model Rules of Professional Conductgift to drafting attorney is copacetic if the
testator is related to the attorney (example: Lipper case)
8. Sexual Relationships
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a. In re Will of Mosestestator was a widow who was sexually involved with her
attorney to whom she gave most of her estate. He didn’t draft the document or
participate in finding her other counsel but the court held that the attorney client
relationship between the beneficiary and testator when the will was executed and
their sexual relationship gave rise to a presumption of undue influence
1. Court held that drafter did not provide any meaningful independent advice
2. One was to read it is that the sexual relationship between the attorney
(who was much younger than her) and his client, and case in south in 1969,
may explain the result
3. As an attorney, to prevent this, you should have more proof that it is
actual intent with letters, affidavits, or create revocable inter vivos trust
b. Kaufmannwealthy testator and his same sex partner, relationship for 10 years,
numerous wills benefiting his partner were executed, court struck all by finding
undue influence when first one was executed
1. This is a questionable decision
c. Trends Handoutin will contests where the testator is female, courts more often
subjectively interpret the evidence to find undue influence
E. Fraud
1. Definitiontrick, device, or deception, typically involving misrepresentation, intended to
deceive the testator and induce execution of a will or codicil that benefits the perpetrator
a. Preventing Revocation of a Will or Execution
1. Latham v. Father Divineplaintiffs alleged that defendants, by
misrepresentation, undue influence, physical force, and murder, prevented
the testator from revoking her will and executing a new one in the plaintiffs
favor. The court held that if the allegations were proven, the defendants,
who were then devises under the will, would hold the estate in constructive
trust for the plaintiffs
2. Two Types of Fraud: Fraud in the execution or fraud in the inducement
a. Fraud in the executiondeceptions as to the provisions of the document the
testator intended to sing or as to the character of the document itself
1. usually if poor eyesight, illiteracy, foreign language, unable to read
b. Fraud in the inducementtestator knowingly executed the document, with
provisions she intended to include but the will resulted from a deception worked
upon the testator in forming that intent. Six elements must be shown:
1. false statements or material omissions of fact that prevented the testator
from recognizing the4 truth
2. made with knowledge they were false
3. intended to deceive (not innocent)
4. statements or omissions were material
5. statements or omissions actually deceived and
6. causation
1. testvaried (but for, sole motive, would have made standard
3. Effect of Fraudremedy depends on circumstances
a. Constructive TrustFather Divinefraud in the execution that prevents
revocation of a will results in imposition of a constructive trust
b. Failure of the Willif entire will is product of fraud, entire will fails
c. Partial InvalidationIf fraud only taints some of the provision of the will
F. Practicalities
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1. Burdens of Proof and Validity Issuesstates differ. In many states (UPC), proponent of
will must prove it was validly executed and the fact of the testator’s death
a. Proving testamentary capacity or incapacityin some jurisdictions the proponent
also bears the burden of proving testamentary capacity, rather than the contestant
having to establish lack of capacity
2. Probate vs. Contestissues related to execution generally affect whether will is
admitted to probate whereas issues related to capacity, undue influence, and so forth are
addressed in will contest proceedings (sometimes these proceedings are separate, some
are combined)
3. Standingif she has an interest or right that will be adversely affected if will is allowed
a. heirs who receive nothing or less than if she would under the intestacy
b. creditorcourts are divided
c. personal representativesdivided
4. Contests Usually Fail after probate, presumption favors validity
5. Planning in Anticipation of Contest
a. Contradict with potential contestant not to contest the will
b. Estoppelinclude a bequest so that individual that is sufficiently attractive that
the contests will be discouraged because it will be defeated
c. No Contest Clausesin terrorem provision
1. Intended effectnot to preclude a contest but to eliminate the bequest
for a contestant under the challenged will if the contest fails and the will is
upheld (this will force contestant to accept sure thing or risk losing it all)
2. No effect if contest succeedswill and no contest clause fail
3. Enforceabilitysome say valid only to the extent that the contest was
frivolous, vexatious, not in good faith, or not based on reasonable grounds
a. UPCno contest clause will not be enforced if there was probable
cause
4. Characterization of Challengecourt that is reluctant to enforce a
forfeiture against an unsuccessful contestant may avoid may avoid it
depending on the language by construing action brought by the contestant
as other than a contest
d. Living Probatesmall number allow the pre mortem validation of a will
e. Using trusts to avoid contests (inter vivos) which reduce the likelihood of success
of a challenge
6. Predicting Contestschildren by prior marriage, treats similarly situated descendants
differently, no close relatives who might be inclined to accept unfavorable will because
they don’t want to tarnish reputation or have enjoyed an alternative lifestyle or made an
unusual disposition
G. Tortious Interference with an Inheritance
1. Tortseparate cause of action
a. Remedysuccessful will contests shares in descendant’s estate, but tort action
results in a judgment against the tortfeasor, which may be preferable if the estate is
small
2. Timing for Actionwill contest cannot be brought after decedent’s death, but tortuous
interference may be brought before the death
3. Elements 1. expectancy 2. ∆ conduct interfered with it; 3.defendant intended to
interfere with it; 4. defendant’s conduct was tortuous, such as fraud, duress, undue
influence; 5. but for ∆ interference, ∏ would have inheritance; and 6. damages
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4. Applies only when fraud is practiced on testator (vs. sham wills when it is on the
beneficiary)
H. Sham Wills
1. Fleming v. Morrison-court admitted extrinsic evidence that testator executed a will
leaving his estate to Fleming only to induce her to sleep with him. Will was denied to
probate because lack of testamentary intent
I. Ambiguous Intent
1. Estate of RussellDecedent’s holographic will included specific bequests to her sole
heir and left the residue of her estate to “CQ and Roxy Russell” (who was a dog). Because
dogs can’t own property, issue was whether C got all or half passed by intestacy. Supreme
Court said extrinsic evidence could be admitted to resolve ambiguities (regardless of
patent or latent) but first must determine if there is an ambiguity. Question is whether the
language is reasonably susceptible to more than one meaning. If so, evidence is admitted
to determine testators intent. Questionable decision, but court says that language of
residuary clause was not susceptible to interpretation that CQ was to take entire residue or
that provision for Roxy was precatory (language could only mean that C and R were
intended to share in estate equally, so Roxy’s half failed, and went to heirs (if the UPC was
applied here, it would have gone to the other residuary in the event that it fails to one
residuary)
2. Latent vs. Patent Ambiguitylatent is one that doesn’t appear on the face of the will but
appears when the terms of the will are applied to testator’s property or designated
beneficiaries; patent is one that appears on the face of the will. IN some states, evidence is
not allowed and will fails but sometimes courts construe language of will without admitting
extrinsic evidence
3. Misdescription of Property or Personsa mere false description doesn’t make it
inoperative (may be stricken)
Patch v. Whitelot number 6 in square 403 to his brother, owned lot 3 in square
406. Court struck misdescription and held his lot 3 passed to brother.
J. Statutory RequirementsAttested Wills
1. Purposes of Execution FormalitiesIn many jurisdictions, it requires strict compliance
with a variety of very specific rules (formalities)
a. Trend is to Relax Formalities
1. Example: UPC dispensing power under which a document not executed in
compliance with traditional formalities will be treated as a valid will if clear
and convincing evidence that it was intended to be a will
b. Testator’s Intent vs. complianceIn many cases, the clearly expressed intent of
the testator is thwarted by non-compliance with technical execution (or revocation)
formalities
c. Why be picky? Part of law for centuries. Four functions:
1. Ritual FunctionDid property owner really mean it? Make it unlikely that
a document not intended by testator to have a testamentary effect will do so
and that a will won’t be casually considered (impress transferor with
significant of his actions)
2. Evidentiary Functionto know for sure it is a will so that persons
interested can rely on documents with some confidence
3. Protective FunctionExecution of a will be the free act of the testator and
not the result of undue influence, fraud, duress (reduce these kinds of
possibilities) (harder to justify under modern conditions because back then
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wills were executed on death bed and may have needed special protection,
but not so much anymore)
4. Channeling FunctionTestators have a routine, accepted, and thus fairly
reliable means of disposing property (helps testator to have safe harbor and
be sure that his wishes will be carried out)
2. Essential Requirements
a. In writingwritten (anything almost as long as it is readable. Can be written on
fuselage of an aircraft that crashed, all of flop house, dresser drawer, postcards,
books, etc.
b. Signedany mark (even X) will do if it is the full act intended for validation of the
will by the testator.
1. with assistancepermissible if testator can’t do it himself and
affirmatively asks for help
2. signature by proxysomeone else signs for the testator who does not
physically participate. Must be done in testator’s presence
3. Location of Signaturea few states require it at physical end so that no
one can forge additions
4. Provisions after signaturewere they there when will was executed or
after execution?
a. If beforemay depend on nature of provision
1. nondispositive such as naming a personal
representative would just be ignored
2. Dispositivemay invalidate the will
b. If afterwill be seen as an invalid attempted codicil to the will that
will not affect its validity
5. Publicationdeclaration by the testator at execution that the document is
the testator’s will but is required by decreasing number of jurisdictions
c. Attestedwitnesses, if any, (the will is not holographic) must attest
1. Only 2 witnesses are required, but use of a third is common and good
practice to protect against one being unavailable, incompetent, or cannot be
found at probate (some just require witnesses to be able to understand and
relate the events, some have minimum age)
a. Interested witnesses
1. Common Law a person interested in the estate could not
serve as a witness and if insufficient number of disinterested
witnesses, the will was not validly executed
2. Todayinterested witness can serve as a competent
witness as long and the question is what effect the witness’
interest would have on devise to witness
b. What constitutes an interest?
1. MajorityIf they take more under the will than without it
2. Minorityany beneficiary of a will is interested
c. Renunciation of InterestPurification of the interest by
renunciation of the interest left to the witness typically is not
permitted
1. Estate of Parsonsdecedent’s will was witnessed by N,
who was left 100 dollars under the will, G, left real property,
and W who was notary, CAL voided gifts under will to
interested witnesses in excess of what they would have
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received unless will was witnessed by two other disinterested
witnesses. N tried to disclaim gift to her, but court said
disclaimer didn’t cause her to be disinterested because the
purpose was to protect testator from fraud and undue
influence and therefore it is determined at the time of
execution
d. Gifts that do not make a Witness Interested bequest to a church
(minister disinterested), drafting attorney as representative because
benefit is compensation for services and not a gift
e. Presumption of Undue Influencesome states treat as undue
influence presumption and unless witness can rebut, their gift is
forfeited.
1. Purgejudge credibility and purge interest by statute only if
the witness is needed to testify to admit the will (forced to
testify and left with only the amount he would have received if
not admitted)
2. RationaleOther beneficiaries of will might pay witness to
disclaim or renounce so that remaining could take under the
will. Purge statue operates automatically
f. UPCInterest is not a disqualification (devise can serve as a
witness without affecting validity of the will, except as being a factor
considered with undue influence)
g. Notary as Witnessnot common but not unique
h. Request by testator that witnesses attest In minority, statutes
require that testator ask witness to witness the will
2. Presencemust sign in the presence of the witnesses or acknowledge to
them that the signature is hers
a. Witnesses present at the same timeIn re Groffmantestator
signed his own will before asking them to witness, acknowledges his
signature on the will to each of them separately, but because statute
required them to sign or acknowledge in the presence of two or more
witnesses “present at the same time,” the will was denied probate
1. In this case, the court acknowledged that twill reflected
testator’s intent (but widow got all and children from prior
marriage were in the picture and under will, widow would only
have gotten life estate)
2. Policywitnesses will be testifying with respect to what
happened and the testator’s capacity, at the same time (could
do in two different years if allowed to not be there at the same
time)
3. Most states, including UPC have done away with this
requirement
b. In Testator’s presencemany statutes don’t require witnesses to
sign in their collective presence, most require that they sign in
testator’s presence
1. UPCmust sign within reasonable time after testator’s
execution of the will
2. In re Estate of Royalrefused to allow witnesses to sing
after testator’s death even though it was shown it was
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impossible for witness to sign before death (UPC reasonable
time was deemed to end at testators death)
3. In re Estate of Peterswitnesses might be able to singe
after death in a proper case, but this was 15 months later
c. What is presence?
1. Line of sight testsee witness sign
2. Conscious presence test(UPC)testator had a conscious
awareness that witnesses were attesting, capable of
understanding what they were doing, and could have seen if
she wanted to
3. Effect of Attestationwitness’ certification that testator signed the will
a. proof that testator and witness property signed
b. attestation clausegood practice to include a clause
c. forgetful or absent witnessessignatures on attestation clause
provide prima facie evidence of due execution
4. Order of Signinggood authority upholding wills regardless of order
signed when they are all together
5. Self Proving Affidavitsigned by testator and witnesses and state that
requisites for valid execution were followed
a. Effectlike a deposition and in most cases they need not appear
at probate to certify (if wills not contested, the affidavit affirms all
things they would testify )(UPC says it may not be contested as to
signature requirements)
3. Procedure for Validly Executing a Will
a. Testator should examine the entire will and understand all its provisions
b. Testator, three observes who are disinterested, the person conducting the
execution, and a notary should be in a room from which all others are excluded and
which no one will part until execution is over
c. Person supervising should ask, Is this your will, do you understand it, does it
express your wishes regarding disposition of your property after your death, and do
you request these observers to witness your execution of it? Audible affirmative
responses
d. Observers should witness testator sign and date it, which should be at the end of
the will. Also, testator should initial or sign each prior page of the will. Will should be
fastened together with every page and secured and specify the exact number of
pages it contains
e. Person conducting execution should instruct three observers that your signature
as witness attests that the testator declared it was his will, he dated and signed in
your presence, and he asked you to witness. You are attesting that you signed in
testator’s presence and the other witnesses, believing the testator to be of sound
mind and memory. Then all should sign and write addresses
f. should have self proving affidavit at the end of the will, swearing that it has been
duly executed, singed by testator
4. Safeguarding a WillCommon practice is to give will to client but there may be
problems because markings, lost them, etc. So, it may be better for attorneys to keep the
will and client gets a copy but this may appear as solicitation, so some states, allow them
to be deposited with court clerk (but this is rare)
5. Mistakes in Execution
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a. Traditional Ruledon’t correct mistakesIn re Pavlinko’s Estateall requisite
formalities were met but each spouse signed the will intended for each other. Court
refused to correct mistakes in the execution and denied probate. (vs.
wrongdoingthe will testator didn’t really intend will be corrected) but not with
innocent mistake
1. Rationale for not correcting mistakeseven though no uncertainty about
intent of decedent, a majority of courts would deny relief because there is a
historical aversion to correcting mistakes that takes the form of strict
compliance with formalities
2. Protecting against Fraudulent ClaimsIf courts ignore the requirements
to accomplish equity, the wills act would become meaningless (according to
the court)
b. Trendcorrect mistakes in limited circumstances In re Snidesimilar to
Pavlinko, but admitted will to probate because they contained identical provisions
and were executed at the same time in compliance with the required formalities (no
risk of fraud)
c. UPC (dispensing power)A document or writing added upon a document is
treated as if it had been executed in compliance with that section if the proponent
of the document establishes by clear and convincing evidence that the decedent
intended the document to be the decedents will, partial or complete revocation,
addition or alteration, or partial or complete revival (this is most common with
witnesses and attempts to change, but if it is not signed, it will be hard to establish
that she intended it to be her will)
6. Substantial Compliance
a. In re Will of Ranneywitnesses signed the self proving affidavit that was
attached to the will but failed to sign will itself. Court adopted a substantial
compliance approach to rectify or ignore the defective execution. Held that affidavit
is not part of the will and may be the first court to hold that close is good enough
when the intent is apparent and there are no facts indicating a potential abuse or
impropriety. (adopts part of UPC/harmless error and said that because they singed
self proving affidavit, it was the same as if they signed attestation clause
7. Consequences of Requiring Strict Adherence to Execution Formalitiesmay end up in
going completely against testator’s wishes. Many cases find ways to admit wills that lack
formalities and there has been a movement towards relaxing the requirements of
execution shows that courts and legislatures troubled by these realities and by frustration
of testator’s intent
8. Invalidating a Will: 1. insane delusionment; 2. undue influence; 3. didn’t really mean it
(no intent); 4. Fraud; 5. Failure to meet statutory requirements
K. Statutory RequirementsUnattested Wills
1. Holographic Wills Requirements: all in his handwriting, some require dated
a. Handwritten by Testator and Unattested (about ½ states recognize, as does UPC)
b. Entirely in Testator’s Handwritingmost states say they must be entirely in
handwriting
1.Surplusage Theory will that contains some material not in testator’s
handwriting may be a valid holograph if the nonholographic provision can be
ignored and balance of the will administered without them
2. Intent Theoryonly those nonholographic items that are not intended to
be an operative part of the will. Substantive nonholographic material
invalidates the will
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c. A few states require that it be dated (most don’t require attested will to be)
d. Most states that allow say it can be signed anywhere but issues if not at end of
whether it was intended to be a signature
e. UPCvalid if the material portions and the signature are in testator’s
handwriting. This would allow more holographs, but still questions as to what are
material (testamentary intent can be established by looking at portions that are not
in handwriting and as long as material portions are handwritten, you’re fine.
f. Forms
1. In re Estate of Johnsonpreprinted will form with only the fill in blanks
were in testator’s handwriting. Court held that handwritten portions did not
establish the necessary testamentary intent and thus the material portions
of the instrument were not in the testator’s handwriting, the court found the
handwritten words and handwritten list of others inadequate to establish
decedent’s intent (UPC says that portions of holographic will not in testator’s
handwriting may be considered to establish intent
2. In re estate of Muderwill handwritten on printed will form, signed and
notarized but not witnessed. Court upheld will as a holograph and said that
the handwritten provision may draw testamentary context from both the
printed and handwritten language on the form and don’t need to ignore
preprinted words when testator clearly did not
3. Can Muder and Johnson be reconciled?
1.Muder was printed paragraph, Johnson was a form will with
handwriting inserted
Johnsonreally undue influence or fraud?
4. Form wills are valid as long as they are witnessed
f. Testamentary Intent
1. In re Kimmel’s Estateletter from father to two sons was held to be a
holograph based on language that stated father might come to visit soon
and if he did he would bring valuable papers he wanted to keep for him so
that various listed assets would go to named persons, and the son should
keep letter because it might help him out
L. Conditional Wills
1. Effect on Testamentary IntentIf will states condition that did not occur, was it still
intended to be her all events will?
a. Favored Constructionstatements were merely gratuitous expression of the
inducement for writing a will that would apply under all circumstances
2. Conditional Wills and Extrinsic Evidence
a. Conditional wills and latent and patent ambiguitybecause the condition in a
conditional will is on the face of the will, consideration of extrinsic evidence is not
allowed
b. Eaton v. BrownIf I don’t return…I leave all to my son. Testator returned and
died some months later. Supreme Court ordered it be probated and said the first
sentence expresses what was on her mind at the time
M. Will Components
1. Integration of Wills
a. Multiple Pagesif not all prepared at once, must be proof they were present at
execution and were intended to be included in the will
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b. Additional, Revised, or Retyped Pagescannot be valid part of a will unless valid
codicil are met because those pages were not present at execution of will in its final
form
1. What if revised page is invalid? Original, unaltered page might remain
valid part of will, if still identifiable (under dependent relative revocation
theory)
2. Effect of Invalid changes on rest of willDoes removal or substitution of
one page invalidate entire will?
a. If the pages are separable the will may be able to stand on its own
example: Page 2 changed, old one destroyed, left 10K to A
it would be just given to residuary, but if page 2 also listed
residuary, it would fail because pages are not separable
3. Two Versions of a Page at Executiononly the one proven to be intended
at execution to be the will (whichever one was stapled with the others but if
kept together, may be impossible and in that case, neither can be shown
and will can only stand if separable)
4. Integration Proof
a. Integration Presumptioncondition of the document at death was
its condition when it was signed
b. Initials or Signatures on each pageonly as reliable as handwriting
analysis procedures employed
c. Relationship of Pagesinternal connection or flow of provisions is
also taken as indicative of presence and intent at execution
d. Extrinsic Evidencetypically admissible
5. Multiple WillsIf lawyers draft, they typically include clauses revoking all
prior wills, but persons who prepare their own may die with more than one
1. Judicial Integrationif wills are not inconsistent. If each is
separately valid, then the several documents are considered in terms
of their effect on each other. If the documents are inconsistent, any
provisions will be ineffective and the last of the inconsistent wills to
be executed prevails
6. Estate of Bealetestator dictated his will to his secretary, earlier will
treated three sons equal, in new will, left all his property to wife and two
older sons, 14 pages and was given three carbon copies, witnessed by three
friends, had a pile of papers, signed last page, none of witnesses could
identify papers, initials on margin. On same day asked her to retype two
pages and change executor and enclosed those pages. Retyped and had
testator’s initial. Court said the will was admitted as the will existed before
the changes
2. Republication by Codicil
a. Codicildocuments executed with all the formalities of a will that change
provisions in a will referred to in the codicil (may supplement, explain, modify, add,
delete, qualify, alter, restrain, or revoke prior provisions)
b. A will is treated as reexecuted or republished as of the date of the codicil
c. Difference with Incorporation by Referencerepublication applies only to a prior
will whereas incorporation applies to incorporate other instruments that have not
been validly executed
d. Elements
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1. Physical Existence of a willvalidated or revived will must be physically in
existence when the codicil republishing it is executed (physical revocation of
the will precludes its republication by codicil)
2. Intent to validate or revise
3. Identificationsufficient description of will to be revived (or physical
attachment)
e. In states that don’t recognize incorporation by reference, codicils may be used to
give effect to invalid wills other than for faulty execution but a codicil cannot
republish an instrument that was not fully executed
3. Incorporation by Referenceany writing in existence when a will is executed may be
incorporated by reference is the language of the will manifests this intent and sufficiently
describes this writing
a. Functionsfacilitate laziness, allow added degree of privacy
b. Operationtreat this other writing as if it were apart of the will even though it is
not and usually was not physically present at execution
c. Elements
1. Intent to incorporate which must be apparent from the face of the will
2. Existence of incorporated document before execution of the incorporation
a. Tangible personal property handwritten lists disposing of
tangible personal property often fail to be incorporated
1. UPCauthorizes this type of list if signed by testator as if it
were a valid holograph (except for money)
2. Clark v. Greenhalgetestator’s 1977 will included a
provision for her personal representative to distribute tangible
property among such persons as I may designate by a
memorandum left by me and known to him. Testator left
document prepared in 1972 and amended in 1976 entitled
Memorandum that disposed of certain items of tangible
property. Painting listed in notebook was supposed to go to
plaintiff. Testator executed two codicils to her will and court
found that notebook was in existence when codicils were
executed. Notebook was treated as being in existence when
the will was executed (issue should be whether the notebook
was in existence in 1980) (but no evidence that writing was in
existence and written before 1980)
-Even though court says incorporation, it may be implying that
people should be allowed to change gifts if they want
3. Reference to Existence of Incorporated Document
4. Identification of Incorporated Document with reasonable certainty
a. Simon v. Graysontestators 1932 will, republished by a
1933 codicil, directed distribution of $4K in accordance with
1932 letter. At testator’s death, a 1933 letter was found with
instructions for distributions. The 1933 letter was held to be
the one referred to tin the will and was incorporated by
reference to it. (could have been 1932 letter that was later
replace in which case the 1933 letter shouldn’t have been
incorporated, since it wasn’t referred to by the will
5. Conformance of the Document with Will Description
d. Clark and Simoncould they be seen as valid holographic codicils?
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1.. Simonletter was written, dated, and signed, but reference to will
was sketchy
2. Clarkno signature on the notebook
e. Johnson v. Johnsonincorporation by reference is a fallback argument
rather than an affirmative estate planning tool, to validate a will that was not
executed in the usual fashion. Attorney left a single unsigned typewritten
paper stating that it was his will. At the bottom, in his handwriting and signed
by him were words “To my brother, ten dollars only. This will shall be
complete unless hereafter altered, changed, or rewritten.
1. Republication by CodicilCourt says this. Typed portion was a will
even though not validly executed, and the bottom was validly
executed codicil that republished it. Not all jurisdictions allow a validly
executed codicil to republish an invalidly executed will.
2. Incorporation by Referenceholographic will that incorporated the
typed portion by reference to it?
a. Testator’s intentdid testator intend the entire page to be
his will? If so, then it is not valid holographic will because not
even material portions were handwritten and the nonwritten
handwritten would be excised as surplus. Not even material
portions were handwritten
b. Reference to Typed Portionsif holographic, only reference
is “this will” which seems to indicate that both portions of
page was single will
3. Two possibilities for this case:
a. Manipulating doctrine to effectuate intent
b. mistaking doctrines of incorporation and integration
f. Incorporation by Holograph of Typed DocumentIn states that allow
holographs, arguably a holograph should not be permitted to incorporate a
typewritten document by reference because the verification function of a
holograph is lacking with typewritten. But some courts do allow
4. Acts of Independent Legal Significanceallows a testator to describe property or
identify persons who will be beneficiaries under her will by reference to acts,
circumstances, or documents that are extraneous to the will if they have a substantial
significance apart from their impact on the will
a. example: to my parents, spouse, employees, etc. because marriage and
employment have significance independent from the will, my car, my household
furnishings, my safety deposit box
b. Assumption that changes have independent significanceacts wouldn’t’ have
been done solely for testamentary disposition so they are independently important
c. List of Giftsinvalid under this is gifts such as the persons listed on the
paper…because it has the sole objective of testamentary disposition
d. Control by othersneed not be subject to testator’s control
e. UPCa will may dispose of property whether they occur before or after testator’s
death
f. also called nontestamentary acts
N. Will Construction
1. Admission of Extrinsic Evidenceplain meaning rule (can’t introduce evidence to
contradict the plain meaning)
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a. Traditional ApproachMahoney v. Graingerdecedent left residue to her heirs
at law to be divided among them equally, share and share like. Heir refers to
someone who is entitled to receive the estate of intestate decedent. Although she
had 25 or so first cousins, her sole heir was an aunt. Extrinsic evidence was
admitted that her lawyer asked her who her nearest relatives and she said she
wanted her cousins to get it. The evidence was admitted only to establish the
circumstances when the will was executed
1. No ambiguitymeaning of words heirs at law was not ambiguous. Will
duly executed must be accepted as final expression of intent of testator. If
will was ambiguous, extrinsic evidence of testator’s intent would have been
admissible, but here there was no ambiguity so aunt received all
a. this rule has been criticized as fundamentally misdirected because
there is only some persons meaning and not he meaning of the
person who wrote the document.
b. Fleming v. Morrison-court admitted extrinsic evidence that testator executed a
will leaving his estate to Fleming only to induce her to sleep with him. Will was
denied to probate because lack of testamentary intent
c. Estate of RussellDecedent’s holographic will included specific bequests to her
sole heir and left the residue of her estate to “CQ and Roxy Russell” (who was a
dog). Because dogs can’t own property, issue was whether C got all or half passed
by intestacy. Supreme Court said extrinsic evidence could be admitted to resolve
ambiguities (regardless of patent or latent) but first must determine if there is an
ambiguity. Question is whether the language is reasonably susceptible to more than
one meaning. If so, evidence is admitted to determine testators intent.
Questionable decision, but court says that language of residuary clause was not
susceptible to interpretation that CQ was to take entire residue or that provision for
Roxy was precatory (language could only mean that C and R were intended to share
in estate equally, so Roxy’s half failed, and went to heirs (if the UPC was applied
here, it would have gone to the other residuary in the event that it fails to one
residuary)
2. Correcting Errors
a. Erickson v. Ericksontestator executed his will two days before his marriage and
devised his estate to his bride to be. Because it did not expressly provide for the
contingency of his marriage, the children said it was revoked by pretermitted
spouse statue. Court remanded case at which surviving spouse could introduce
extrinsic evidence that could be used to establish and correct the mistake
If scrivener’s error has misled testator to execute will believing it will be valid even if
subsequent marriage, extrinsic evidence of error is admissible to establish intent
1. compared to undue influence, fraud, duress (3d party misleads)
2. statute of wills doesn’t compel enforcement of dispositions that are
unintended
3. presumption of intent is rebuttable
3. Changes in Condition or Status of Beneficiary Is there a lapse? IF yes, will go to
residuary beneficiary or through intestacy unless antilapse statute applies, will provides
substitute, or it can be construed as a class gift
a. If devisee doesn’t survive testator, devise lapses (Fails) and it falls to residue. If
residuary devise fails, the heirs take by intestacy
1. No residue of a residueif ½ of residue to A, ½ to B, B predeceases T,
then it passes to T heirs and not A
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a. this rule has been overturned by statutes in most states
b. Class giftsurviving members of class divide the gift (test is whether the testator
is group minded)
1. Dawson v. Yucus1/2 farm to S, half to G, who were both nephews. S
claimed it was a class gift and he would have taken the entire interest
(antilapse statute didn’t apply to G who was related only by marriage.). Court
held that because devisees were designated by name and size of shares
was fixed, devise was not a class gift.
2. In re MossGift to A and the children of B was held to be a single class
gift because otherwise would resulted in lapse of gift to A
could argue all equal relationship and intent to stay in family (all nieces and
nephews)
c. If devisee dead at time of will, devise is void, and same as if lapsed.
d. Antilapse Statutesprevent failure of gifts and dispose of a lapsed gift, usually to
predeceased devisees descendants by representation (usually only if there is a
close blood relationship. Typically the beneficiary must be relatives of testator and
sometimes even lineal descendants
These apply unless testator says it doesn’t apply
e. UPCapplies to beneficiaries who are grandparents or descendants of
grandparents and include step-children
-survivorship requirement alone may not override antilapse statue absent
additional sufficient indications of a contrary intent (this is controversial)
f. Allen v. Talleydifficult in some cases to determine whether antilapse statute
should not apply (left estate to my living brothers and sisters..J, C, L1, L2, J2 and
three were living at time of will but predeceased testator. Their descendants
claimed their parents shares but court instead held that C and L go t entire share
because it was deemed to impose a condition of survivorship and antilapse statute
was not intended to apply
g. Substituted GiftsIF devisee dies before testator, does the will provide for an
alternative taker? If so, there is no lapse
1. Jackson v. ShultzTo my wife, to her and her heirs and assigns forever
Wife predeceased. Three children survived testator. Testator died without
heirs and would have escheated bed cause the antilapse statute is not
applicable to gifts to spouses. Court found that testator intended that his
estate would pass to Bessie’s heirs if she predeceased him
a. To A or her heirs vs. To A and her heirsif or, it would have been
easy, but the language and is generally construed to mean only that
the devisee receives a fee not an alternative gift. Nevertheless, the
court held that and could be read as or in order to carry out intent
2. Hofing v. Willssimilar language and it was held that construction of and
to mean or is unreasonable because it would allow the donee to assign right
to whomever they chose
4. Changes in Property after Execution of WillAdemption is property that a testator
doesn’t own at death
a. Specific Devisegifts of particular assets or gifts payable from specified funds
b. Demonstrative Devisesspecific gifts that may be stratified from general funds if
the specified funds are exhausted (first are specific then, if inadequate funds,
general are used)
c. General Devisesgift to be made to devisee but not of particular assets or funds
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d. Examples
1. My living room furniturespecific bequest
2. The money that X owes mespecific legacy
3. 100 shares of X company stockgeneral bequest, maybe demonstrative
if testator owned X stock but if not enough shares, personal representative
would buy additional stock
4. 100 dollars worth of my X company stockprobably specific because the
word my is not just any shares of stock
5. 100 dollars to be satisfied with my X company stockspecific
6. Greater of money and property of the value of one million or 1/3 of my
estategeneral legacy or residuary bequest
7. All the rest of my landresiduary
8. All my personal Propertygeneral
9. 100 dollars from my bank account at X bankspecific but could be
demonstrative
e. Ademption by Extinctionif specific gift doesn’t exist at death. Unless will
provides otherwise, the gift will fail due to extinction
1. Applicable only to Specific Devises
2. Theoryassumes that a testator who intended to preserve a gift to a
devisee would have changed the will to do so
a. actual intent is irrelevant
1. Example: Wasserman v. Cohensettlor provided for a
specific gift of an apartment building to a beneficiary and the
gift adeemed when the settlor sold the building prior to death
and did not amend trust to provide an alternative gift (court
didn’t consider question of whether settlor actually intended
the gift to adeem (applied the traditional wills doctrine to an
inter vivos trust)
f. Ways to Avoid Ademption
a. classify devise as demonstrative rather than specific
b. Classify inter vivos disposition as a change in form, not substance (UPC)
c. Construe the meaning of the will as of the time of death rather than as of
the time of execution
d. Create Exceptions
g. UPCspecific devisee has right to it at death and the purchase price if sold,
amount of condemnation, unpaid insurance proceeds, security interest,
replacement property (prevents ademption unless there is a positive proof that
there was intent to adeem)
O. Revoking Wills Can do by subsequent writing or by physical act
1. By Subsequent Instrument
1. Any Subsequent Instrumentwill, codicil, or any other instrument that is
executed with the same formalities of a will
2. Writing on the Will Itselfmay be revocation by subsequent instrument (if
holographic wills are recognized) or a physical act of cancellation if across the page
(but not if it was just in margin and holographs not recognized)
3. Revocation by Inconsistent Subsequent Instrument-even if it doesn’t’ say so, if
it is inconsistent, there may be little question that testator intended subsequent
instrument to revoke the prior one
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a. Subsequent instrument is a codicil, then presumption that testator didn’t
intend to revoke the will and only meant to amend
b. Subsequent Wills that don’t address prior instruments
1. disposition of entire estateif later will disposed of all assets in
inconsistent manner, all prior inconsistent would be revoked but if
not clearly inconsistent, integration may work unintended results
c. May not really matter if will or codicil
2. By Physical Actmutilation of paper or obliteration or cancellation of words
a. Mutilationcutting, tearing, burning, or other forms for destroying the paper
1. Practice Considerationto avoid uncertainties with respect to intent,
physical acts should revoke entire will
2. Need not touch the words on the paper of the will
3. Will itself must be mutilated and not just a backing, self proving affidavit,
or cover
b. Obliteration or Cancellationdone on physical words such as tape strips of
paper, or mark through the words
1. Cancellation need not touch every word
a. traditionalmust touch some of the words
b. UPCneed not touch any words
c. Thompson v. Royaltestator’s lawyer writing on back of will’s cover
that it was null and void, dated and signed, will admitted to probate
over objections that it had been revoked because the writing on the
back cover did not touch the words of the will
3. Cancellation by words or Markswriting canceled or revoked across
the page is a cancellation by physical act and may be revocation by
subsequent instrument
c. Act and Intent Requirednot revoked if done by mistake, to wrong document, or
intent changed before full intended act was completed. Must be done by testator
himself
a. Strict Compliancevs. UPC
d. Presumption of Revocation by Physical ActPresumption of destruction if cannot
be found or is produced in a mutilated obliterated, or canceled condition as long as
testator was last person to have possession, it was not available to others and
there was a diligent search if will was lost.
1. Access to Otherssomeone who would benefit had access
2. Lost will and Presumption Not RaisedAdmission is possible by proof of
will if it is not found but presumption of revocation is rebutted (ex: confirmed
copy)
3. Harrison v. Birdsaved the revocation by the presumption of destruction
with intent to revoke (testator had executed duplicate wills, called attorney
who tore it up and advised testator in a letter that he had revoked the will for
her and sending her the pieces. Pieces of will were not found after testator’s
death. Duplicate of will was denied probate
a. governing statue imposed proxy for physical revocation so the act
of tearing it up didn’t revoke but because pieces were sent and not
found, the presumption that she destroyed with intent to revoke it
applied and not rebutted
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e. Extrinsic Evidence is usually admissible to prove lack of possession by testator,
declarations of testator regarding intent, and circumstances showing reasons for
testator to revoke
f. Partial Revocation by Physical Actsome allow if less than al of will is physically
mutilated but others don’t.
1. If not allowed by state law and the testator only performs act on part of
will, presumption is that none of the will is revoked unless portions of the will
cannot be read
2. If valid under state law, the issue is what becomes of the property that
was subject to revocation?
1. intestacy or increase a residuary gift but not increase a
preresiduary gift
g. Proxy Revocation by physical Actusually only if done in presence of testator, at
her direction, and in some states, in the presence of witnesses.
1. invalid revocationlost wills
2. Proxy Revocation under UPCin testator’s conscious presence and at her
direction but no witnesses needed
h. Multiple Documents
1. If revocation is by physical act to will, presumed to revoke all codicils too,
but revocation of a codicil is not revoking entire will or other codicils
i. Stapled WillsProblems when removed
j. Duplicate Executed Original Willsneither necessary nor advisable (revocation of
one typically revokes all)
1. However, if testator had numerous copies and still kept one, this
presumption is weak
3. By Operation of Law
a. Divorce or Annulmentonly divorce or annulment still operates to revoke a will in
most states
1. in some states, marriage also does or at least allows spouse to intestate
share
2. in one state, birth of a child revokes a will
b. By divorceprovide for divorce in different ways (some treat former spouse as
predeceased or disclaimed, but rest of will not actually revoked, but others deem all
provisions for spouse as having been revoked and rest valid, and still others say
that entire will is revoked
c. Common Problem with Divorce Statutesif remarries former spouse, UPC
revalidates the provisions but most non UPC states don’t address the issue
1. may provide consequences unintended such as moving former spouses
child into immediate possession (in many cases, testator may prefer that
she be treated as having died intestate)
2. Judicial solutions
3. UPCdivorce results in former spouse and their relatives as if disclaimed
d. Nonprobate propertyalso impacted by operation of law
e. Dependent Relative Revocation
1. Brought about by mistake of fact or law
example: I revoke the devise to B because he just won the lottery, but
really he didn’t, then the revocation would be denied effect
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2. Contrasted with RevivalIf Will #1 was physically revoked in connection
with Will #2 and it turns out that Will#2 was not validly executed, the
revocation of #1 is ignored.
a. Physical Existence of the willneed not be in existence because it
does not restore the will, its revocation never occurred
3. Conditional Revocationrevocation was implicitly dependent
(conditioned) on the certain facts or legal results to which the revocation
related
1. most often applied when a testator revokes a will with an
alternative disposition that fails
4. Carter v. First United Methodist ChurchDecedent’s 1963 will was found
with pencil marks though the position, folded with a 1978 handwritten but
unsigned document that was labeled her will and that included dispositive
provisions different from those in the 1963 will. Because the 2 were found
together, the purported revocation of the 1963 will was deemed conditioned
on the unsigned 1978 will taking effect and the presumption was raised that
the testator would not have wanted first one revoked if second was invalid
5. Estate of Alburnsecond will was revoked in the mistaken belief that the
first will would be revived but because that belief was proven wrong, the
revocation of second will was ignored.
f. Interlineationsif it only attempts to add devises, only execution issued are
raised (reduces residue but not seen as revocation to residuary). These are
attempted codicils and must be executed in accordance with formalities (unless
UPC or substantial compliance). If it is an attempt to change or eliminate a devise,
firs there are execution issues (attested or holographic codicil? If so change will be
given effect. If not, then must consider revocation issues. Does the jurisdiction
recognize partial revocations by physical act? If not, interlineations have no effect
but if so, dependent relative revocation must be considered.
g. RevivalTestator executes Will1, later executes Will2, which revokes will1 by an
express clause or inconsistency. Later testator revokes will2. IS will1 revived?
1. MajorityUpon revocation of will 2, will 1 is revived if testator intends(can
be shown from circumstances or oral declarations
2. Some states say that it I s not revoked unless will 2 remains in effect until
death
3. minorityrevoked will cannot be revived unless reexecuted with
testamentary formalities or republished in later executed writing
4. UPCfollows the majority of states
P. Restrictions on the Power of Disposition: Family Protection
1. Protection of the Spouse--Introduction
a. Separate Property Systemhusband and wife own separately all property each
acquires
b. Community Property SystemHusband and wife own all acquisitions from
earnings after marriage in equal undivided shares
2. Right of Surviving Spouse to Support
a. Social Securitycommunity property principles (Retirement benefits of deceased
and surviving spouse); worker can’t shift benefits to anyone else
b. Private Pension PlansERISAspouse must have survivorships rights. If
employee retires alive then joint and survivor annuity to Ee and spouse but if before
retirement, there is a preretirmente survivor annuity
29
c. Problem if they get divorced and not remarried. If no statue, then probably the ex
still takes
d. Homesteadstate laws designed to securing surviving spouse and minor
children from debtors (probate homestead) so they have the right to occupy family
home for his or her lifetime (entitlement that is free from creditor claims and cannot
be defeated by decedent’s will)
1. sometimes dollar amount (UPC15K, and in others it’s a right to occupy
family home)
e. Exempt Personal Propertycars, household appliance, furniture, may be exempt
but this is usually limited to a dollar amount (UPC10K)
f. Family Allowancesupport during administration (in some fixed, in others it is set
by probate court that is exempt from creditors claims and may not be defeated by
will
g. Curtsey and DowerCL gave widow 1/3 of real setae and man got all of wife’s
real estate only if they had children. Today, these have been abolished.
3. The Elective Sharein all but one of the separate property states give spouse an
elective share for the rationale that the surviving spouse contributed to the descendents
acquisition of wealth and deserves to have a portion of it
a. Size differs among the states1/3 of probate estate or augmented (Which
includes non probate property) and sometimes increased to ½ if no descendants.
Sometimes it is same as if intestate and may even be entire estate
1. intestate share almost always at least as large if not larger than forced
b. Effect of election on Spouse’s right to other propertyallowed to reject the
decedent’s estate land to take an elective share but the spouse may then not take
under the will of the decedent (can choose one or the other but not both). Also, if
any intestate property, the election precludes taking of any share of intestate
property
c. In many state, homestead allowance, personal property, and family allowance are
in addition to elective share because they are often directed towards maintenance
during the administration and not for division of marital wealth
d. Sullivan v. Burkinsubjects trust assets to elective share if settlor alone had a
general power of appointment exercisable during life or death over the trust (power
to revoke a trust is a general power of appointment, all revocable trusts are subject
to spousal elections if power exercisable by the settlor alone. (included in estate if
revocable, created during marriage, and decedent maintained power)
(this is the power of appointment test)
Other testsillusory transfer (motive and control) (retains control)
(revocable inter vivos trust set up by her husband during their marriage is
illusory and invalid) (most widely accepted)
Present Donative Intentwhether the transferor intended to make a present
gift (was anything given up presently)
e. UPCSurviving spouse’s elective share is a percentage of augmented probate
estate , which includes transfers greater than 10K per year per donee made within
two years of death and nonprobate transfers to others that essentially are not
effective until death, subtracts transfers to the spouse.
1. 1990 UPCspouses own property is also included in augmented estate
(partnership theory of marriage similar to community property and support
theory to a limited extent) and also depends on how long they’ve been
married (less than a yearno elective share, 1-15 yearsincreasing
30
percentage, and 15 or moreall treated as marital (see p. 265 in study
guide for how to calculate)
f. Waiver is allowed by written contract, agreement, or signed waiver
1. Garbadeupheld a prenuptial agreement limiting the surviving spouse’s
rights against the estate to the proceeds of an insurance policy because no
showing of fraud and husband made a full disclosure
g. Rights of Surviving Spouse in Community PropertyHusband and wife own
earnings and acquisitions form earnings of both spouses during marriage in
undivided equal shares. Separate Property includes property brought before
marriage or during by gift or inheritance. Couples can make agreements regarding
their property (Can make separate property into community or change community
into joint tenancy, tenancy in common, or sole ownership)
1.When one spouse dies, each take one half.
2. Widow’s electionEven after statutes gave wife equal management
power, this says that the husband can devise all the community property in
trust to pay income to his wife for life, remainder to others on her death
(Creates one trust of all community property and wife gets for life)
3. Multistate Couples
a. law of the situs controls problems related to land
b. domicile at the time personal property is acquired determines
characterization of property
c. law of domicile at death of one spouse controls survivor’s natural
rights
1. moving from separate to communityproblem because if
property acquired under this, all is husband’s but wife gets
elective share. But if she moves, there is no elective share
a. remedysome statesquasi community
property(property that would have been included as
community is treated as community except for real
property outside the state
2. moving from community to separategenerally community
property stays community property. If sold, etc., it should be
careful to preserve this as community property.
h. Premarital WillsSpouse Omitted from Premarital Will
1. Estate of Shannontestator will left entire estate to a child and included
a provision that the testator institutionally omitted all other living persons
and relatives but surviving spo9use took a share under a pretermitted
spouse statute because the will was executed twelve years prior to the
testator’s marriage and dint’ show a specific intent to exclude the spouse
(extrinsic evidence was admitted but controlling statute required that the
testator’s intention to be shown from the will itself)
2. UPCPretermitted share is an intestate share of the portion that was left
to beneficiaries who are not descendants born prior to the marriage and it is
not available to a surviving spouse if the decedent left entire estate to
descendants born before the marriage who aren’t descendants of the
spouse on the assumption that decedent forgot to revise with will is not
sufficient to overcome testamentary objectives.
a. testator’s intent if testator’s failure to provide was intentional as
shown by evidence that will executed in contemplation of marriage,
31
provision that said notwithstanding marriage, or decedent provided
for spouse by will substitute in lieu of testamentary gift
b. no augmented estate concept (wouldn’t reach will substitutes, etc.)
4. Protection of the Children
a. Intentionally Disinherited Children only LA has protection for disinherited
children but the law disfavors it and it could be a risky affair
b. Pretermitted Child Statutesfound in most states (UPC only protects children,
some protect more remote descendants)
1.Azcunce v. Estate of Azcuncefather’s will devise property in trust for his
then living three children and his wife, no after borns provision. Fourth child
was born a year later. Her status as pretermitted heir was defeated by the
father’s execution of a codicil which expressly republished the terms of the
will. Evidence he didn’t intend to disinherit but statute only protected after
born and adopted
2. Esponosa v. Sparber, etc.drafted will and didn’t’ put in a provision for
after born, contacted attorney and asked him to include in will but
disagreement as to amount of assets, Azcunce didn’t sign the second will,
mother brought malpractice suit. Suit could not be brought because no
privity of contract and not a third party beneficiary (only those beneficiaries
as expressed in will)
3. UPCIF not children living when will executed, child gets intestate share
unless all to parent then takes nothing. IF one or more children, pretermitted
share on pro rata basis with the other children in property devised to them
IV. Will Substitutes: Nonprobate Transfers
A. Contracts with Payable on Death Provisions
1. What they arePOD are contractual arrangements under which, on the death of a party
to contract, benefits are payable to one or more beneficiaries without regard to terms of
will or intestacy (life insurance, annuities, deferred compensation plans, bank accounts,
and other agreements)
2. Testamentary Challengemore common POD are viewed as nontestamentary and not
subject to successful challenge for failure to comply with will formalities without regard to
other testamentary characteristics
a. Wilhoit v. People’s Life Insurance Companybeneficiary of life insurance policy
deposited proceeds with insurance company under an arrangement that differed in
minor respects from the payout option under the policy itself. Court held that it was
not covered by the protection form a testamentary attack afforded life insurance.
Beneficiary had designated her own beneficiary to receive any remaining funds, that
person predeceased them and then B executed a will that devised the funds to a
devisee (giving effect to B’s intent for disposing of the funds influenced the courts
conclusion that the deposit arrangement was invalid).
b. Current treatment of payable on death ContractsUPC broadly authorizes POD in
all contracts and other things not usually viewed as contracts such as promissory
notes, bonds, conveyances, deeds of gift, trusts (most states follow this)
1. Estate of Hillowitzcourts have not rejected will substitutes merely for
failing to comply with formalities of the wills act (decedent was a partner in a
partnership that called for his interest to be paid to his wife on his death.
Personal representative of decedent’s estate challenged the provision and
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the court held for widow because it deemed the partnership agreement a
third party contract for her benefit, not an invalid testamentary disposition
c. Insurance Proceeds Not Controlled by Insured’s Will
1. Cook v. Equitable Life Assurancewhen a beneficiary of a policy is
named, the insured’s will has no effect on the disposition of the proceeds
(insured named his wife as beneficiary before they were divorced, and
without changing that, he executed a will that left to his new spouse and
child, but the court awarded the proceeds to ex spouse)
-this is an example that the same rules that apply to wills
might be helpful with respect to will substitutes
2. UPCdivorce revokes the designation of the divorced spouse as
beneficiary
3. Multiple Party Bank Accountsjoint and survivor account, payable on death account,
agency account, and savings account trust
a. Franklin v. Anna National Bank Individual established a joint tenancy bank
account with is sister in law when she began caring for him. When he changed
caregivers he unsuccessfully attempted to substitute his new caregiver as the other
joint tenant. At his death, the personal representative and the sister in law both
claimed the facts. Based on the facts, the presumption that the depositor intended
a true joint tenancy with survivorship was rebutted and the funds were deemed part
of his estate because no gift intended and no true joint tenancy
V. Trusts
A. Testamentary vs. Inter Vivos Trusts
1. Revocable Trustarrangement by which one ore more trustees hold legal title to
property for the benefit of one or more beneficiaries (settlor may revoke and property goes
back to him)
2. Basic Structuresettlor is often sole beneficiary during her life then at death distributed
to beneficiaries named by the settlor in the trust instrument, much like probate property
3. Why create? Minimize rights of creditor or spouse, prepare for incapacity, secure
management assistance, avoid a will contest, avoid probate
4. Fundamental Requirement for Validitydon’t need execution formalities because there
is a present declaration of trust and transfer of property to the trust
5. Deed of Trusttransfer legal title to property to trustee pursuant to writing, interest and
title in trustee, and declaration of trustsettlor himself is trustee, title in settlor/trustee
6.Farkas v. Williamssettlor named himself as trustee, retaining a life estate and power to
revoke. Trust provided for assets to be distributed at death to a named beneficiary. Court
relied on impaired alienability and fiduciary responsibility to hold that the settlor
accomplished something during life that was sufficient to distinguish from purely
testamentary
QuestionsDoes Farkas have complete control? Does Williams have any rights?
-This shows that trusts and wills aren’t that far apart (could argue unexecuted will)
-safest way to show you really want a trust is to give a deed of trust
7. Trust Requirements1. Trustee; 2. manages for 3. beneficiary; 4. property and 5.
device
8. Unlawful or illegal trust purposeillegal activity, defraud spouse and hide assets, go
around rule against perpetuities, discourage marriage, defraud creditors
9.In re Reynoldsinter vivos trust in which a deceased spouse retained a limited power of
appointmentwas it a violation of the elective share? Her retained power of appointment,
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though limited, left her with meaningful control so this was a functional substitute allowing
disposal of entire trust by way of one or a series of bequest. (it is a testamentary transfer)
10. Creation of a Trust
a. Valid Purpose (can’t be testamentary)
b. Settlor and Transfer
c. Trustee
d. Intent to Create a Trustno particular words, just need to manifest intent
1. Jiminez v. Leefather was accountable to his daughter as a trustee when
gifts for the daughter’s education were made shortly after her birth. There
was no trust instrument nor any express mention of the creation of a trust
but the trusts were created because they were intended that the gifts be
held for benefit of his daughters.
2. Substance controls
3. different than with a moral obligation (with the hope that, my wish and
desire, etc.)
4. different from custodianship (in which just for general benefit of minor)
e. Property
1. Unthank v. RippsteinLetter written right before death (but not in
anticipation of death) that said she would send 200 cash a month for five
years as long as he lived that long and crossed out those words. Claims he
bound his estate to make payments for that long (first claimed holographic
codicil, court reject). Appeals court said voluntary trust and heirs had
obligation to pay but SC TX reversed, sayi8ng that it was not enough
language to show the intend of the deceased and the subject of the trust (he
still had total control of it, trustee wouldn’t) (not enough to just promise to
give)
2. Brainard v. CommissionerTP orally declared a trust of any stock trading
profits he might earn in the next year. Profits were earned in the next year
and were reported by the beneficiaries. Issue was whether the unearned
profits form future stock trading could be held in trust on behalf of TP family
members. The court said that an interest that has not come into existence
cannot be held in trust and the declaration to do so was unenforceable (lack
of consideration) promise to create a trust in the future.. Profits taxable to
him but trust didn’t fail. As profits were earned, TP credited them on his
books to accounts for the beneficiaries.(if he would have declared he held
the stock itself and not just the profits, in a trust, it would have been valid
because that is clearly property)
f. Beneficiaryequitable interests
1. may be unborn or unascertained when the trust is created but once it
becomes effective and there are still none, it may fail for want of
ascertainable beneficiaries.
2. Clark v. Campbelltestator devised various items to his “trustees” to be
distributed by them to “such of my friends as they shall select.” Court said
trust failed because the beneficiaries of the trust were not objectively
ascertainable
3.Exception to the Beneficiary Rule: Honorary Trusts valid if trustee
complies (not widely recognized in US but some states do for gravestones,
animals, say mass for dead)
a. Rationaleworthy of protection
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b. In re Searight’s Estatetwo gifts by testator (one of his dog to F
and a second of 1K in trust from which F was to be paid 75 cents a
day for dog’s care). Upheld by the court because it was not an
honorary trust (this is how to avoid the honorary trust problem
because the person was the beneficiary and could sue to enforce the
trust
c. Shaw’s Alphabet Trustinvalid because not beneficial to
community so not charitable and not in favor of ascertainable
beneficiary
g. Resulting and Constructive Trustsresulting trust when express trust fails or
makes and incomplete disposition or where one person pays purchase price of r
property and causes title to be taken in the name of a another who is not a natural
object of the bounty of the purchaser. Constructive Trustflexible remedy imposed
in a wide variety of situations to prevent unjust enrichment. (these are not in
writing)
h. Writing? Some exceptions
1. statute of frauds requires trust of land to be in writing and testamentary
trust must be created by a will but a court may enforce oral ones
2. Hieble v. Hieblea mother who had recently undergone surgery and
thought she might be terminally ill transferred real estate to her son and
daughter as joint tenants subject to an oral agreement that she would
remain in control and if her condition improved they would reconvey. Son
refused when asked to reconvey. Court upheld the trust by creating a
constructive trust and avoided the statute of frauds.
3. Pappas v. Pappas67 year old man married 23 year old woman while on
visit to Greece. ON return, marital difficulties arose, and just before divorce,
Andrew conveyed to his son George with the understanding that they would
convey it back after the marital difficulties were over. George refused to
convey it back and court said no constructive trust because Andrew had
perpetrated fraud on the court and did not have clean hands.
4. Oliffe v. Wellstestator’s will devised residue to Reverend Wells to
distribute the same in such manner as in his discretion shall appear best to
carry out wishes which I have expressed to him or may express to him (intent
to create a trust is clear but not the purpose or any specifics regarding
beneficiaries or operation (semi secret trusts) (whereas Hieble was secret,
but a lot of jurisdictions don’t follow this distinction)
11. Special Types of Private Express Trusts
a. Discretionary Truststrustee has discretion over payment of either income,
principal, or both
1. Marsman v. Nassa—A trustee with the power to pay principal for the
comfortable support and maintenance for the beneficiary has a duty to
inquire into the financial needs of that beneficiary
b. Spendthrift Truststrust the governing instrument of which includes a provision
expressly prohibiting alienation of the beneficiary’s interest (beneficiaries can’t
voluntarily alienate and creditors can’t reach)
1. recognized in almost all jurisdictions
2. Shelley v. Shelleythe trust beneficiary was entitled to receive the current
distributions of income but principal only in the trustee’s discretion and the
trust included a spendthrift clause. Court said that alimony and child support
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claimants could reach his interests in the trust despite the clause but only
the income he was entitled to when he was entitled to it and couldn’t reach
principal unless and until trustee exercised his discretion
a. rationalepublic policy because he cannot enjoy benefits of a
trust immune form claims and the children would be on welfare
3. Exceptions to Spendthrift Trustsself settled trusts (for settlor’s own
benefit), child support (majority), alimony, federal tax lien, excess of amount
needed for support (several states), tort creditors (controversial), remainders
(majority), pensions
4. United States v. O’Shaughnessybeneficiary of a discretionary trust had
neither property nor any right to property in undistributed trust principal or
income that US could attach a federal tax lien enforcement action on. There
is little a claimant can do to get money out of the trust. Creditor must wait
until the trustee has exercised it discretion and made a distribution to eh
beneficiary
12. Modification and Termination of Trustsif settlor and all the beneficiaries consent, a
trust may be modified or terminated (Trustee can’t object even if spendthrift clause) but
there is an issue if settlor is dead whether the beneficiaries can all agree and change
a. Englandif all adult and all consent, it can be changed (after death, seen as
beneficiaries property and not the settlers)
b. In re Trust of Stuchellunsuccessful effort to modify a trust to prevent a required
distribution form adversely affecting an incompetent beneficiary’s receipt of public
assistance (guardian was not appointed to consent for incompetent beneficiary
perhaps because bets interests might not have been there) and not similarly
situated so virtual representation was not a viable solution, so deviation was denied
even though it may have made the trust more advantageous as a class
1. special power of appointment may be good to five the beneficiary which
allows him to modify a trust for benefit of anyone except donee
c. Majority rule is that a trust can’t be terminated prior to the time fixed for
termination even though all beneficiaries consent if it would be contrary to a
material purpose of testator
d. In re Estate of BrownEducation trust continued for the life of the nephew and
his wife. After the education aspect was accomplished, the court rejected a petition
to terminate because a material purpose was to provide for the nephew and his
wife for their lives and allow them to live in accustomed standard of living which
would be defeated if trust were terminated.
1. could advise them to assign their interest to children then the purpose of
lifelong support for parents would end
e. Some states enacted statues that allow courts to terminate trusts before
specified time if it would benefit disabled, minor, unborn, or unascertained
beneficiaries.
f. Changing Trusteescourt will not change merely because beneficiaries want to
because settlor reposed special confidence in him.
Uniform Trust Actremoval if material breach, lack of cooperation among
co-trustees, poor investment performance (substantially lower than
comparable trusts), changed circumstances, inability to administer
13. Powers of Appointmentallows a power holder to decide who receives property that is
subject to that power
a. Terms:
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1. Donorperson who creates the power
2. Donee/Power holder person who is authorized to exercise even though
not personally benefiting in some cases
3. Objects/Permissible Appointeespersons whom the power may be
exercised in their favor
4. Default Beneficiariestakers if no valid exercise
5. General and nongeneral, inter vivos or at death
b. Why Use?
1. Leverage
2. Avoid Mandatory Distributions
3. Tax Planning
c. General Powermay be reached by power holders creditors only to the extent the
power is exercised and the power holder is insolvent
1. Irwin Union Bank and Trust v. Longdebtor was the income beneficiary of
a trust from which he was also given the right to withdraw up to 4 percent of
trust principal annually. Former spouse obtained a divorce related judgment
and tried unsuccessfully to reach the principal that he could withdraw
(property was not his but was instead the grantor’s and was only reachable
to the extent that he exercised that power)
a. some statutes today allow them to reach if first exhaust his own
assets and if donee is also donor, they can get it
b. treated as not owning the power for purposes of elective shares
d. Creation of a power of appointment
1. Donor must manifest an intend expressly or by implication (precatory
words of wishes or desires don’t create power of appointment in absence of
other circumstances indicating a contrary intent)
2. Powers to Consume
a. Sterner v. NelsonDevise to Mary “absolutely and with full power
in her to make such disposition of said property as she may desire,
but if she predeceases or when she dies, property to foster daughter”
-court found that this was a fee simple because where there is grant
to one in general terms only, expressing neither fee nor life estate
and limitation over of what remains at death, it is a fee and the
attempted limitation over is void
e. Release of a Power of Appointmentby judicial or statute
1. Acts like a renunciation and power holder is saying she will never exercise
the power
a. unless there is no default takers, the imperative power might be
deemed to exist
2. Siedel v. Werner-the holder of a testamentary power agreed to exercise
in favor of his two children but failed to do so. The contract to exercise the
power was unenforceable so the claim was made that the contract was a
release of the power. This failed because the parties did not intend the
contract to be a release and the effect of the promised exercise was
different then if a release
14. Charitable Trusts
a. Charitable Purpose
1. Shenandoah Valley Bank v. TaylorHenry died, still probated, Bank was
executor and trust, residue in trust for following purposes (reinvest income)
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pay each child in 1-3 grades equal shares to help education for Xmas and
Easter. This did not create a valid charitable trust because the testator’s
intent was benevolence and not charitable (and so it violated the rule
against perpetuities). Charitable trusts are to relieve poverty, advance
education, religion, health, government purposes, benefit to community,
indefinite number of persons, public in nature. In this case, it was beyond
trustee’s power to be sure they used for education.
2. Drafting Advicemake sure the exact legal name of the charity and
whether it is tax exempt.
b. Modification: Cy Pres charitable gifts were to comply with public policy as
established by the king and any deviations were corrected by the crown regardless
of the testator’s intent. American courts reluctant to accept but accepted as times
changed and made charitable trusts hard to administer
1. In re Nehertestator gave home to be used as a hospital in memory of
her husband and explains it all. Trustees of Red Hook accepted and village
presented its petition saying it didn’t have resources necessary to establish
and maintain a hospital and the recently neighboring village was sufficient
and wanted to change it to allow it to be a memorial hall for conducting
village administration. The petition was denied but the court said that the
true construction was to give for general charitable purpose rather than
specific. Compliance is impracticable and thus can be ignored and gift may
be executed cy pres through a scheme to be framed by the court for carrying
out the general charitable purpose
2. Posnerwhen the enforcement of conditions is no longer economically
feasible, the court will authorize the administrators to apply assets to a
related (cy pres) purpose within general scope of donator’s intent
3. examples: Barnes foundation and Beryl Buck Trust (p.872)
c. Issuedoes a donor have standing to sue to enforce terms of charitable gift? NO
private express trustssettlor has no standing to enforce the trust
15. Rule Against Perpetuities
VI. Fiduciary Administration of Trusts
A. Powers of Trusteederived form instrument creating the trust (no inherent powers in a trustee)
B. Duties of Trustee
1. Duty of Inquiry into Needssee Marsman
2. Duty of Loyalty
a. Hartman v. Hartlewill directed executors to sell real estate and divide equally
among children . Executors sold to one son and sister sold for more and one
daughter contested. Argues sale violates will and should be set aside and farm
resold or she should get 1/5 of profits. Ruletrustee cannot purchase from himself
at his own sale, she gets 1/5 of profits
b. Self Dealingno further inquiry is made (good faith irrelevant) and trustee is
liable
c. Trust Pursuit RuleIf trustee wrongfully disposes trust property but acquires
other property, beneficiary is entitled to constructive trust on the property as part o
future assets
d. In re Rothkopainter, died testate, three executors, sold to corporation and
consigned some too. Kate Rohtko was daughter, elective share, suit to enjoin them
from selling and rescind the agreements and for damages and attorney general did
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too. Stamos had to get in good with Reis, Reis earned 10% commission, Levine
failed to exercise ordinary prudence (courtno further inquiry rule)
e. Co-Trusteesmust act as a group and with unanimity if not otherwise specified
in the trust instrument. One can designate ministerial functions but none that
require discretion. Co-trustee is liable for acts of co trustee to which he has
consented or inactivity or wrongful delegation, has enabled a co-trustee to commit
3. Duty to Collect, Protect, and Preserve Trust Propertywithout unnecessary delay
4. Duty to Earmark Trust Propertyif not earmarked, a trustee might later claim that the
investments that proved profitable were his own investments and the ones that lost value
were the trusts
5. Duty not to Commingle Funds
6. Duty not to DelegateShriner Hospitals v. GardinerTrustee was inexperienced and
placed assets with brokerage house who made all decisions. Embezzled money from trust.
Hospitals sought to hold trustee liable. Although a trustee may seek out expert advice, he
is not justified in relying on it and must exercise it sown judgment (she didn’t participate at
all)
a. this rule has been relaxed
7. Duty of Impartialitybetween income beneficiary and remainder men
a. Dennis v. Rhode Island Hospital Trust beneficiaries said that he handled the
commercial buildings that have decrease in value that were leased and income
distributed to life tenants was large. Sold the buildings near the lowest point of their
value which show serious mishandling of assets. Trustee should have been aware
in the way the buildings values were decreasing (trustee favored beneficiaries by
investing in property with high income return and depreciating capital value)
8. Duty to Inform and Account to the Beneficiaries
a. Fletcher v. FletcherTrust agreement, trustees authorized to expend money as
may be necessary to provide medical care and insurance during lifetime or until
trust is depleted. Plaintiff alleged that the instrument recites that he was advised
the assets had been transferred to a new trust, trustees have failed to reply to
request of details. Trustees are under duty to give him complete and accurate
information as to the nature and amount of the property and allow him to inspect
matter of trust and accounts and vouchers, etc.
b. National Academy of Sciences v. Cambridge Trusttrust was not to be given to
other people than herself. She never told them she was remarried, when they found
out, wanted some payments back, but bank exerted no effort to find hat she had
remarried and acted ministerial
9. Duty to Make Trust Property Productive
a. Estate of Collinsbeneficiaries claimed they improperly invested 50K dollars and
requested they be surcharged. Will authorized them to purchase every kind of
property…etc. The law firm invested the money with two real property developers
who were clients of theirs. Issues with loan, etc. Defendants failed to follow prudent
standard by investing 2/3 of entire principal in a single investment, only secured by
a second deed of trust, and didn’t make adequate investigation of either the
borrower or the collateral.
b. UPCrequires diversification
C. Liability to Third Partiestrustee is personally liable on any contract he makes but many states
have enacted statues permitting contract and tort creditors to sue a trustee in his representative
capacity and not personally liable
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VII. Lifetime Planning
A. Planning for Incapacity
1. Power of Attorneydurable power of attorney doesn’t’ terminate on incapacity of
principal (goes until death). Must be created by written instrument and in some cases it
must be notarized and witnessed (for comparison with trustee se p. 396)
2. Franzen v. Northwest BankUnder common law, a power of attorney is to be narrowly
construed in light of the circumstances surrounding the execution f the agency instrument
but the principal may confer authority to amend or revoke trusts on an agent without
referring to the trusts by name in the power of attorney
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