TRUSTS & ESTATE OUTLINE
Professor Thomas
Chp 1: Introduction to Estate Planning
A. Intro
3 Basic Functions of having a will
1) Provides evidence of transfer of title to the new owner
2) Protects creditors (this way creditors can make claim in probate court)
3) Distribute decedent’s property to the people who were intended to receive it after the
creditors have been paid
A. POWER TO TRANSMIT PROPERTY AT DEATH: ITS JUSTIFICATION AND LIMITATIONS
Shapira v. Union National Bank, p. 24
Facts: Under testator’s will, his son Daniel could only inherit if the was married to a Jewish
woman whose both parents were Jewish at the date of Shapira’s death or within 7 years
thereafter. If he did not satisfy the conditions his share was to be given to the State of Israel.
Daniel sought a declaration that the will was unconstitutional since it restricted his right to marry
or that such a clause violated public policy
Issue: Does the court’s enforcement of the provision (requiring him to marry a Jewish girl whose
both parents are Jewish or forfeit the money) constitute sufficient state action in order to be
deemed a violation of the 14th Amendment?
Held: No. The court’s enforcement of the provision does not constitute sufficient state action to
be deemed a violation of the 14th Amendment. There is no state action here – the court is simply
enforcing an inheritance
Rationale: The court held that it’s not acting in the capacity of the state in this instance. Instead
it’s acting only to probate a will. In the court’s view that doesn’t constitute state action for 14th
Amendment purposes
Court distinguishes situation this from property cases dealing restrictive covenants:
(1) This is unlike property cases where owners of neighboring properties sought to enjoin blacks
from occupying properties which they had bought. In the case at bar, the court isn’t being
asked to enforce any restriction upon Daniel’s constitutional right to marry. Rather, this court
is being asked to enforce the testator's restriction upon his son’s inheritance. The aid of the
court is not sought to enjoin Daniel’s marrying a non-Jewish girl
(2) Daniel argued that although the restriction may not be a total prohibition on his right to
marry, he doesn’t have a big selection of Jewish women from which to chose. Court rejects
Daniel’s argument about pool of women being too small because:
(a) Daniel’s attorney failed to present evidence of how small the pool of Jewish
women was. if his lawyer had presented such evidence the result might have been
different
(b) Court said that Daniel wasn’t restricted to marrying a Jewish woman from this
community; that he could marry a Jewish woman from anywhere
(3) Court treats restriction on race more critically than one on religion
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(4) This situation is very limited in scope. Dealing with a condition in one person’s will that
deals with a bequest to one individual. The only thing that might happen here if the court
enforces the condition is that Daniel won’t get his inheritance
(5) Court tries to balance the father’s interest in this case. Dad put this provision in for the “wellbeing of his family.” In contrast, there’s no good reason to include a racial covenant
 Need to break the above arguments into policy v. constitutional arguments ?????
Note: The court lucked out in being able to decide this way and not having to get into dicey issue
of trying to see if Daniel’s girl meets the definition of being a Jewish girl
HYPO: What if Daniel marries someone who’s a Reformed Jew as opposed to an Orthodox Jew?
Would this meet the condition in the will?
▪ This scenario puts the court in the difficult position to determine what Jewish is
▪ This is a decision that the court really isn’t equipped to make; this is a religious
argument. Having to decide this issue would put the court in a very precarious position
Restatement (Second) of Property, ON RESTRAINTS ON MARRIAGE: that a restrain to induce a
person to marry within a religious faith is valid “if, and only if, under the circumstances, the
restraint doesn’t unreasonably limit the transferee’s opportunity to the transferee’s opportunity to
marry if a marriage permitted by the restraint is not likely to occur. The likelihood of marriage is
a factual question, to be answered from the circumstances of the particular case.” The motive or
purpose of the testator is irrelevant
HYPO: What if Daniel were gay? Would the get-married provision in his Dad’s will be
enforceable?
Analysis
1) Does Daniel have a constitutional argument here? No, because there is no state action.
Without state action Daniel can’t make a 14th Amendment argument
2) Does Daniel have a public policy argument? Daniel could make the public policy argument
that it would be against public policy to enter into a sham marriage for the sole purpose of
getting an inheritance
3) Restatement Analysis?? Most courts would hold against the restraint because “the marriage
permitted by the restraint is unlikely to occur
Point: There are limits on what you can do with your money after you die (i.e. – you can’t use
your money to support something that is against public policy). The court is going to try to
enforce what you do with your property but only to a certain extent
A will or trust provision is ordinarily invalid if it’s intended or tends to encourage
disruption of a family relationship. Thus, provisions encouraging separation or divorce have
usually been held invalid, unless the dominant motive of the testator is to provide support in the
event of separation or divorce
HYPO: What if Dad leaves you money on the condition that you get a divorce?
The court isn’t going to enforce this because it’s against public policy to make the break
up of marriage a condition of receiving an inheritance
In re Estate of Donner - Upholding father’s trust deny daughter trust income or principal
until age 65 unless her husband’s death or divorce should earlier occur on the ground that
the decedent had a reasonable economic basis to withhold support unless the daughter
became breadwinner of the family
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Girard Trust Co. v. Schmitz – Court held invalid a condition that the testator’s brothers
and sisters must not communicate (either orally or in writing), with a brother and sister
disliked by the testator. The court said that it wouldn’t “lend its hand to help the testator
use the power of his wealth to disrupt the family. . . Society condemns all act, be they
contractual or testamentary, which tend to disturb the peace and harmony in preserving
Estate of Romero – Voiding condition discouraging youthful children from living with
their mother, the testator’s former wife
Destruction of Property: Court will not enforce a destructive condition where the testator who
made the decision will not suffer the economic loss.
HYPO: You put provision in your will that after your death you want your house
torn down. Will the court enforce this condition?
No. The court will not enforce this condition
Justice Black’s Notes – He wanted his notes of conference destroyed after his death
rather than being published. This would probably be enforced because there would be
valid reasons to protect those communications (i.e. – if notes were going to be published
might impact what Justice is willing to say in them
B. Professional Responsibility
Simpson v. Calivas (SCT of NH, 1994), p. 49
Facts: Simpson makes a will. In will gives wife (Roberta) a life estate in a “homestead.” Left all
other land to Robert Jr. In the Probate Court the issue was what “homestead” meant. Robert Jr.
argued that homestead meant just house and little parcel around house. Wife argued that
“homestead” meant whole parcel. Probate court didn’t admit notes of lawyer which clearly
indicated that term homestead meant just the house and surrounding yard. Probate court didn’t
admit lawyer’s note. Probate court admitted some evidence that didn’t contradict the plain
meaning of the language in the will. Probate court construed “homestead” as the entire parcel. It
concluded that she had a life estate in the whole parcel. Robert Jr. wasn’t happy ended up buying
out his stepmother.
Procedural History: He sued the attorney, in TC, bc he is not happy with the way that the
attorney drafted the will. TC found that the attorney didn’t owe any duty to the beneficiary of the
will (privity of contract concept: only relationship was between the attorney & testator). TC ruled
that bc the attorney owed no duty to Robert Jr. he had no basis to bring a malpractice claim
against him. TC also points out that the probate court already interpreted the will. TC ruled that
the probate court’s construction of the will collaterally estops Robert Jr. for suing the attorney for
malpractice. Robert Jr. appeals
Issue 1: Did the attorney owe a duty to the intended beneficiary of the will?
Held 1: The attorney did owe a duty to the intended beneficiary of the will. NH recognizes an
exception to the privity rule for intended beneficiary of a will on the rationale that otherwise the
attorney would be able to draft wills without any accountability. (A number of other states also
recognize an exception to the privity rule in this situation  where there’s an intended
beneficiary of a will)
Issue 2: Is the beneficiary of the will collaterally estopped from bringing this claim?
Held 2: Not collaterally estopped bc the two courts were dealing with two different issues. This is
bc the functions of the two courts are different. Probate court determines the expressed intent by
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examining language in will and extrinsic evidence. In short the probate court determines the
expressed intent. TC determines the actual intent  Actual Intent
Judgment: Reverses on both rulings
Point: Be careful in the language that you chose you’re drafting a will. Attorney has to makes
sure that what he writes in the draft will match up with what the testator wants to do with his
property. As in this cases, beneficiaries may be allowed to sue when bc of sloppy drafting they
don’t get what they’re supposed to get
Simpson case is an illustration of sloppy drafting: : If the attorney had used simpler language
in the will here he would have avoided this problem (for instances if he used simpler language as
he did in his notes such as house & yard). This case dealt with where the language doesn’t match
up with what the testator intended bc of the lawyer’s sloppy drafting
Note: Some states only go so far as letting an intended beneficiary sue for negligence if the
negligence is apparent from the face of the will. (NH doesn’t recognize this limitation – in NH
it’s okay to look at extrinsic evidence)
Hotz v. Minyard (SCT SC 1991), p. 66
Facts: Minyard (testator) owned two dealerships at which his children, at which his children
Tommy and Judy worked. Dobson, an attorney and accountant, worked for the Minyard family
and their business. In 1984, he drafted two wills for Minyard. He asked Dobson not to reveal the
terms of the 2nd will, which was nearly the same as the first except that it gave the real estate
outright to Tommy. Dobson discussed the terms of the 1st will with Judy and told her that she
would be receiving an equal share of the dealerships with her brother even though her first will
was actually revoked. After a failing out with her brother over the operation of the business Judy
filed suit against her brother. Minyard then cut her out of the will entirely. Dobson also served as
Judy’s lawyer. After her father’s death, Judy filed suit against Dobson for misleading her about
her status under the will. TC granted summary judgment to Dobson on the issue of his duty to
Judy. Judy appealed.
Rationale: Although Dobson represented Minyard and not Judy w/r/t the will, he did have an
ongoing legal relationship with Judy. Thus while he had no duty to disclose the 2nd will, Dobson
owed a duty to deal with her in good faith and not actively misrepresent the situation.
Judgment: Reversed and remanded
C. Is Probate Necessary? (p. 44)
Probate is not always necessary
Red flag: Any thing that’s worth a substantial amount of money should clue us in that the
survivor should probably go through probate (see p. 46)
Problem 1: Aaron Green died 3 weeks ago. His wife has come to your law firm with
Green’s will in hand: The will devises Green’s entire estate “to my wife, Martha, if she
survives me; otherwise to my children in equal shares.” The will names Martha Green as
executor. An interview with Mrs. Green reveals that the Green family consists of 2 adult
sons and several grandchildren and hat Green owned the following property:
Furniture, furnishings, other items of tangible
personal property (estimated value)
Savings account in name of Aaron Green
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$ 10,000
5,000
Joint checking account on which Aaron and
Martha Green were both authorized to write
checks
Employer’s pension plan, naming Martha
Green for survivor’s benefits
Government bonds, payable to “Aaron or
Martha Green”
Ordinary life insurance policy naming Martha
Green as primary beneficiary
Ford Car
1,500
Life Annuity
5,000
25,000
7,500
Green owned no real property; he and his wife lived in a rented apartment. Green debt’s consisted
of last month’s utility bills ($40) plus the usual consumer charge accounts: Visa card ($300
balance), the local dept store ($125), Exxon ($35). There is also a funeral bill ($1,225) and the
cost of a cemetery lot ($300). Mrs. Green wants your advice: What should she do with the will?
Must it be offered for probate? Must there be an administration of her husband’s estate?
Probably Mrs. Green shouldn’t probate the will because this is a small family situation.
Car: In most states she’ll only need an affidavit to get title to the car
Bank Account: In most states she’ll only need an affidavit to get title to the bank account
Stocks: Where amount is small statutes in all states permit heirs to avoid probate (p. 46)
Furnishings: She already has possession of the furnishings. No problem here? Barring no
dispute from relatives or creditors no problem
(5) Life Insurance: She’s a beneficiary on the life insurance so no problem there
(6) Bonds: The bonds were payable to her or her husband so no problem there
(1)
(2)
(3)
(4)
(7) Debts: Her husband didn’t have many debts (credit cards, cemetery payments). There is a
slim chance of unknown creditors coming out of the woodwork. But even if there were
unknown creditors she can probably cover it with the money she’s getting out of the life
insurance or by writing checks out of the savings account.
Conclusion: We have a small family situation. They can probably sit down and decides who gets
what. Also, don’t need probate here to collect assets for distribution (i.e. pay-off creditors). So
there is no advantage of going through probate. Also don’t need the title clearing benefit of
probate here because she access to all the personal property. Note that if her husband owned real
property in his own name probably would need probate bc of its title clearing function
Variation # 1: What if Aaron was the sole proprietor of a small business?
She should go through probate in order to put creditors on notice. She should do this bc her
husband may have creditors that she doesn’t know about. You would want to have the advantage
of probate so that creditors could come forward and get satisfied in whole or in part.
Variation # 2: What if there were huge debts?
This is the scenario where she knew about the creditors but the amount owed to them was more
than she could pay off from the estate. In this scenario she would want to go through probate bc
there is a “homestead exception” (in some states the home can’t be used to satisfy the creditors).
So in the case of extremely large debts she also probably would want to go through probate
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Problem 2: Same facts in Problem 1 except that Green died intestate and the state’s
statue of descent and distribution provides that where a decedent is survived by a
spouse and children, one-half of his real and personal property shall descend to the
spouse, and the remaining one-half shall descend to the children
Again we have a situation where the family should try to work this out without going
through probate. Under statutes in most states, certain percentage of estate goes to
spouse, remainder goes to children. In this situation, it would make sense of the children
not to challenge the mother’s right to have all these assets (so that they can get something
after she dies). On the other hand, if this is a dysfunctional family, might need probate to
determine how everything is going to be distributed
Problem 4: Suppose Green comes to you and tells you that he doesn’t have a will. He
describes his family situation and the assets owned by him (the assets listed in problem
1). His question: In view of his family situation and his modest estate, does he really
need a will?
You should advise him that it’s a very good idea to have a will because: (1) the family
dynamics could change, (2) his situation could change (i.e. – he could win the lottery),
and (3) it’s always better to get his intentions in writing what he wants done with his
property when he dies
AN ESTATE PLANNING PROBLEM (p. 49)
First Article: “Just Debts Clause”
A “Just Debts Clause” is a pretty typical clause: it directs that all his just debts be paid as soon as
practicable.
Issue: What constitutes a “Just Debt”?
▪ What constitutes a “just debt” will depend upon the jurisdiction. You need to know what
constitutes a “just debt” in your jurisdiction before you put this language in because effect the
advise you give to your client
▪ Does a mortgage constitute a “just debt”? This will depend on the jurisdiction. For this
reason. you need to know what constitutes a “just debt” in the jurisdiction because it will alter
the advise that you your client
▪ Does a claim that may be barred by the Statute of Limitations a “just debt”? You don’t have
to worry about these because you’re not required to pay something in death that you couldn’t
be required to pay while you’re alive
▪ Does a prenuptial agreement constitute a “just debt”? Depends on you’re jurisdiction. Some
jurisdictions say that this does qualify as a just debt but the law is still evolving in that area.
[This is the scenario where you say that a just debt is owed to me (the amount specified in the
prenuptial agreement) and I am not covered by the will]
▪ Point: What is or isn’t a “just debt” isn’t always clear. A just debt can be something other
than a bill or money owned to creditors
Second Article: Howard names his wife to be the executor of his estate
Howard makes an assumption here that you shouldn’t make. Howard is assuming that he is going to
die before his wife. But even if that assumption is true, he is making another assumption that he
shouldn’t make – namely that his wife is going to be competent at that time. He makes no provision
for the fact that Wendy might not be competent (i.e. – she could get Alzheimer’s). This is something
else that Howard should have thought about
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Fifth Article: Empowers the executor to sell property and convert it into cash
Here Howard does something that is pretty smart. He has empowered the executor to sell property
without getting power from the court. When you (testator) name an executor, you want to give the
executor as much power as possible. That way, if the executor has to sell the property, the executor
won’t have to waste additional money and time to get court approval to sell the property. Any power
that you don’t give the executor is going to require another trip to court!!!
Fourth Article: Howard leaves everything to his wife Wendy
This may or may not be appropriate. What happens if Wendy and Howard die in a common disaster
(i.e. – plane crash)? Under this provision all of Howard’s property will go to Wendy upon his death.
Because Howard has made provision of the contingency of simultaneous death the property will have
to go through probate twice. Having to go through probate twice will be expensive and it’s not the
most practicable way to do this
Point: There are many things that Howard didn’t incorporate in his will either because he didn’t
anticipate them or think about them
Some Steps Howard should take
1) Put in common disaster provision
2) Name an alternate executor
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Chp. 2. Intestacy: An estate plan by default
A. Basic Scheme
1. Intestacy: An estate plan by default: If a person does not have a will or does not
dispose of all his property by nonprobate transfers his property will pass by the laws of
intestacy
What do the laws of intestacy try to do? To carry out the probable intent of the average
intestate decedent
Governing law: Distribution of the probate property of a person who dies w/out a will,
or whose will does not make a complete disposition of the estate is governed by the
statute of descent and distribution of the pertinent state. Each state’s laws of intestacy are
different
a. Personal Property: The law of the state where the decedent was domiciled at death
governs the disposition of personal property
b. Real Property: The law of the state where the decedent’s real property is located
governs the distribution and disposition of real property
UPC § 2-101 Intestate Estate
(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate
succession to the decedent’s heirs as prescribed in this Code, except as modified by
the decedent’s will
(b) A decedent by will may expressly exclude or limit the right of an individual or class
to succeed to property of the decedent passing by intestate succession. If that
individual or a member of that class survives the decedent, the share of the
decedent’s intestate estate to which that individual or class would have succeeded
passes as if that individual or each member of that class had disclaimed his or her
intestate share
What happens to property not mentioned in a will absent a “catchall” clause? If
there is no “catchall clause” in a will, property not mentioned in the will will pass by the
laws of intestacy
UPC § 2-102 Share of Spouse, p. 72
The intestate share of a decedent’s surviving spouse is:
(1) Entire intestate estate if
(i)
no descendent or parent of the decedent survives the decedent; or
(ii)
all of the decedent’s surviving descendents are also descendants of the
surviving spouse and there is no other descendant of the surviving spouse
who survives the decedent
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(2) Parent. If no descendant of the decedent survives, but a parent of the decedent
survives the intestate share of the decedent’s spouse is  $200,000 + ¾ of any
balance of the intestate estate
(3) Children from Marriage & Surviving Spouse has Children. If all of the
decedent’s surviving descendants are also descendants of the surviving spouse
and the surviving spouse has one (or more) surviving descendants who are not
descendants of the decedent  $150,000 + ½ of any balance of the intestate
estate
(4) Decedent has children. If one or more of the decedent’s surviving descendants
are not descendants of the surviving spouse  $100,000 + ½ of any balance of
the intestate estate
Why does the legislature make the distributions in § 2-102(3) and § 2-102(4)
different?
Legislature presumes that surviving spouse will leave money to his/her children and not
the decedent’s children from previous marriage. Legislature gives decedent’s kids
money upfront insure that they get it. As for the surviving spouse, the legislature
presumes that children from the marriage or children from the surviving spouse’s
previous marriage will take by laws of intestacy/will
UPC § 2-103 Share of heirs other than surviving spouse, p. 73
Any part of the intestate estate not passing to the decedent’s surviving spouse under § 2102, or the entire estate if there is no surviving spouse, passes in the following order to
the individuals designated below who survive the decedent
1. decedent’s descendants by representation (children / grandchildren)
2. decedent’s parent(s)
3. descendants of the decedent’s parents (siblings)
4. decedent’s grandparents or their descendants by representation (grandparents)
Note: This list shows the order in which people take. If there is more than one person in a
group they take equal shares. For example, if decedent dies w/out descendants and is
survived by both her parents then the parents get equal shares
UPC § 2-105 No taker, p. 74
If there is no taker under the provisions of this Article, the intestate estate passes to the
state.
Why does the legislature put children first?
Legislature presumes that parents always want to give money to their kids (societal
value). There’s a belief that it benefits society to give the money to the younger
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generation because there is a higher probability that the money will go back into the
economy
2. Shares of Surviving Spouse
Single most common statutory provision: Under current law, the single most
common statutory provision is to give the surviving spouse a ½ share if only one
child or issue of one child and a 1/3 share if more than one child or issue a
deceased child survive
Other statutory provisions: Some statutory provisions give the surviving spouse
½ or 1/3 regardless of the number of children or descendants or giving the
surviving spouse a child’s share
UPC § 2-102 Share of Spouse, p. 72
(1) The intestate share of a decedent’s surviving spouse is the entire intestate
estate if
(i)
no descendent or parent of the decedent survives the decedent; or
(ii)
all of the decedent’s surviving descendents are also descendants of
the surviving spouse and there is no other descendant of the
surviving spouse who survives the decedent
(2) If no descendant of the decedent survives, but a parent of the decedent
survives the intestate share of the decedent’s spouse is  $200,000 + ¾ of
any balance of the intestate estate
(3) If all of the decedent’s surviving descendants are also descendants of the
surviving spouse and the surviving spouse has one (or more) surviving
descendants who are not descendants of the decedent the intestate share of the
decedent’s spouse is  $150,000 + ½ of any balance of the intestate estate
(4) If one or more of the decedent’s surviving descendants are not descendants of
the surviving spouse the intestate share of the decedent’s spouse is 
$100,000 + ½ of any balance of the intestate estate
Note: This UPC provision for the surviving spouse is considerably more generous than
are the current provisions for the surviving spouse under most state intestacy laws
PROBLEM 1: Howard has two children by Wendy. Wendy has two children by Howard
and a child by a previous marriage. If Howard dies before Wendy intestate, what will be
Wendy’s share under UPC § 2-102?
UPC § 2-102(2) The intestate share of a decedent’s surviving spouse is:
“$150,000 + ½ of the balance of the intestate estate, if all of the decedent’s
surviving descendants are also descendants of the surviving spouse and the
surviving spouse has one or more surviving descendants who are not descendants
of the descendent”
UPC § 2-102(2) is the applicable section here bc Howard has no children from a
previous marriage but does have children from his marriage from Wendy thus “all
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of the decedent’s surviving descendants of the surviving spouse.” And bc Wendy
has a child from a previous marriage it’s the case here that the “surviving spouse
has a surviving descendant who is not a descendant of the descendent.” Thus
Wendy gets $150,000 + ½ of the remainder. Wendy and Howard’s 2 children
share ½ of the remainder
What assumption are the drafters of the UPC making in § 2-102(2)? In cutting
Wendy’s share to $150,000 plus half the remainder, the UPC is assuming that H would
want his money to go his kids. The result of this is that the children end up with unequal
distributions. Wendy’s kid gets nothing, and the two kids from W & H’s marriage get an
equal share of half the remainder. Belief that Wendy can fix any problems that arise as a
result of this property distribution by writing her own will
PROBLEM 2: Howard has two children by Wendy. Wendy has two children by Howard
and a child by a previous marriage. If Wendy dies before Howard intestate, what will be
H’s share under UPC § 2-102?
UPC § 2-102(4) The intestate share of a decedent’s surviving spouse is $100,000
+ ½ of the balance of the intestate estate, if one or more of the decedent’s
surviving descendants are not descendants of the surviving spouse
§ 2-102(4) is the applicable section here bc “one or more of the decedent’s
surviving descendants are not descendants of the surviving spouse.” Thus
Howard gets $100,000 plus ½ of the remainder. Wendy’s child from the previous
marriage gets the other ½ of the remainder.
Why the difference in outcome in Problem 1 and Problem 2? This difference comes
about bc trying to give decedent’s child, who is not a child of the surviving spouse, more
money up front. Legislature assumes that the deceased spouse’s child might not be the
natural object of the surviving spouse’s bounty. Legislature assumes that children of the
surviving spouse on the other hand will be taken care of later by laws of intestacy or by
will.
PROBLEM 3: Howard dies intestate and Wendy does not have a child by a previous
marriage. What is Wendy’s share under UPC § 2-102?
Wendy takes all of Howard’s estate under § 2-102(1)(ii)
PROBLEM 4: Howard and Wendy have been married one year. Howard dies, survived by
Wendy and a brother, but no parent. What is Wendy’s share?
Under § 2-102(1)(ii) Wendy gets everything
PROBLEM 5: Howard and Wendy have been married one year. Howard dies, survived by
Wendy and a brother, but no parent. What if Howard made a will and decided that he was
going to leave Wendy 50 cents? Is Wendy limited to getting that 50 cents?
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No, Wendy is not limited to getting the 50 cents she can choose to take an elective
share since Howard has made a will.
State Elective Share Provisions: Each state has elective share provisions that
allow the surviving spouse to take his/her elective share instead of taking what
he/she gets under the will
UPC Elective Share Provisions: Under the UPC there is a sliding scale that goes
up incrementally every year of marriage
What would Wendy’s elective share be under the UPC?
▪ § 202(a): gives surviving spouse of a one-year marriage only 3% of the
decedent’s estate if the decedent leaves a will and the spouse elects to take
against the will
▪ Conclusion: Under § 2-202(a) Wendy’s share would be 3% because she has
only been married one year
How do we justify that if there is no will Wendy gets everything and that if there is a
will and she elects to take against it she only gets 3% of Howard’s estate?
Under the laws of intestacy, the legislature is trying to guess the intent of the husband.
Legislature assumes that most individuals would choose to leave their entire estate to
his/her spouse if he/she does not have kids and is not survived by his/her parents. But
when there’s a will we don’t have to guess the testator’s intent. With an elective share
we hare saying as a society that the distribution the spouse has made is unfair. Society is
doing what it thinks is fair based upon the amount of time that the couple was married
Can you cut your spouse entirely out of the will?
No. You can cut everyone else out of the will except your spouse. If you leave your
spouse a very small amount the spouse can elect to take an elective share in accordance
with the laws of the state.
Situations in which you have a couple living together but not married
a. Bigamous marriages: Does the second wife get a share of the estate?
HYPO: Henry dies intestate. Anne, with whom he has been living claims
a spouse’s share. Is Anne entitled to such if she married Henry but the
marriage is bigamous?
Anne has problems. She make a few arguments to support her
case, particularly if she didn’t know about Henry’s other wife
(wife # 1). Some states will protect Anne and give her a share of
the estate
b. Male-Female Couple just co-habitats: On what basis may a co-habitant
collect?
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Common law marriages: Some states recognize common law marriages.
A co-habitant who is considered to be married by “common law marriage”
provisions acquires the same rights he/she would have acquired had they
gone through a marriage ceremony. In such a state such a person would
be considered a spouse and therefore would be entitled to take under the
laws of intestacy. If a co-habitant is in a state that does not recognize
common law marriages, there is no possibility that the co-habitant will be
considered a spouse and thus no possibility that the co-habitant can take
under the laws of intestacy.
Contracts to make will: In some states, a co-habitant can bring a claim
under a contract theory. The law in this area is developing and changing
c. Same Sex Couples: On what ground can a surviving partner seek to collect?
Contract theory: A surviving partner of a same sex partner may want to
try to collect under a contract theory
Reciprocal Beneficiaries: Some states, such as Hawaii, persons who are
forbidden to marry can register with the state as “reciprocal beneficiaries.”
Reciprocal beneficiaries are given many of the benefits of surviving
spouses, including the right to inherit under the intestacy statute the same
share as a legal spouse receives and the right to an elective share
3. Uniform Simultaneous Death Act
Uniform Simultaneous Death Act (USDA): Provides that where “there is no
sufficient evidence” of the order of deaths, the beneficiary is deemed to have
predeceased the benefactor. (Note it’s not clear what “sufficient evidence” means.
See Janus case below)
What’s the effect of the Uniform Simultaneous Death Act? It prevents an
estate from having to go through probate twice (very costly)
What triggers the presumptions of the simultaneous death act? If the will
does not provide for what happens if both the spouses dies in a common disaster
then the simultaneous death act comes into play and the property is distributed in
accordance with its presumptions
HYPO: Couple dies in a common disaster. H and W have reciprocal wills. H
leaves everything to W except if W is dead then it goes to X. W leaves
everything to H, if H is dead then everything goes to X. What happens if we can’t
tell who died first?
 H: Under the USDA, assuming that there is no sufficient evidence of the
order of deaths, we presume that H’s beneficiary predeceased him. Thus the
estate will go directly to X w/out having to be probated through W’s estate
first
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
W: Under the USDA, assuming that there is no sufficient evidence of the
order of deaths, we presume that W’s beneficiary predeceased her, so the
estate goes directly to X w/out having to be probated trough H’s estate first
Issue: What constitutes “sufficient evidence” under the Uniform Simultaneous
Death Act?
Janus v. Tarasewicz (IL App Ct, 1985), p. 78
Facts: H and W both ingest Tylenol laced with cyanide. H is pronounced dead at
hospital. W is placed on life support for almost 2 days. On 2nd day, W if
pronounced dead. Claiming that there was no sufficient evidence that W survived
H, H’s mother brought an action for the proceeds of H’s $100,000 life insurance
policy which named W has primary beneficiary and H’s mother as the contingent
beneficiary. H’s mother argued that there wasn’t sufficient evidence to show that
H and W weren’t brain dead when they reached the hospital
Issue: Was there sufficient evidence that W survived H?
What constitutes sufficient evidence? The court in this case equates “sufficient
evidence” with “some evidence.” Court follows preponderance standard?
Held: There was sufficient evidence that W survived H and therefore the
presumptions of the Uniform Simultaneous Death Act do not come into play
Rationale: Court looks at the hospital records and says there certainly is some
evidence that W was in better shape than H
Criticisms of the Janus case: This case liberalizes the definition of “sufficient
evidence” where it would perhaps have been more appropriate to have had
everything decided under the Uniform Simultaneous Death Act. By liberalizing
the definition, the court is inviting litigation.
Key to Janus case: This case illustrates that the court’s standard for “sufficient
evidence” can influence: (1) the outcome of the case, and (2) a party’s willingness
to pursue litigation w/r/t to the order of death issue
Liberal interpretation of “sufficient evidence” invites litigation: The more
liberally a court interprets the word “sufficient” the less likely it is that there is
going to be an easy and orderly disposition of the estate because the chances are
much higher that the order of death issue is going to be litigated
How does the standard has an impact on whether people decide to litigate the
issue?
In most cases the medical records are never going to be completely clear. In most
situations the respective parties are going to be able to find experts who will
interpret those records in the way that they want
▪ Lower standard: If there’s a lower standard of w/r/t what “sufficient
evidence” constitutes such that you need to show by a preponderance of the
evidence that W survived H (i.e. - a little bit of evidence such a blink of an
eye) there’s going to be litigation
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▪
Higher standard: If the standard higher (i.e. – there has to be clear and
convincing evidence that W survived H) then it is much less likely that people
are going to litigate the matter – instead if the standard is high enough they
will be more inclined to let the matter be decided by the Uniform
Simultaneous Death Act
Clear & Convincing Standard: People will be less inclined to pursue litigation
bc the burden of proving that W survived H or vice versa. If the court follows this
high standard the parties will be more inclined to let the matter be decided by the
Uniform Simultaneous Death Act
Preponderance of the Evidence Standard: If the court follows this standard,
people will be more inclined to pursue litigation because the burden of proving
that W survived H or vice versa is much easier to meet (i.e. – under this standard,
showing that W blinked might be deemed by the court to be ‘sufficient’ evidence
that W survived H)
Key Point: How liberally or narrowly the court interprets “sufficient” has an
impact on the outcome
HYPO: H and W both drown in a boating accident. The evidence shows that W
was a better swimmer and in better health than H. In addition, the autopsy shows
W drowned after a violent struggle while H passively submitted to death. Is there
sufficient evidence of W’s survival?
In this case, the court held that there wasn’t sufficient evidence that W
survived H because there were a number of alternative explanations that
could have explained the autopsy results. The very fact that alternative
explanations existed meant that there wasn’t sufficient evidence that W
survived H.
HYPO: H and W are killed in the crash of a private airplane. An autopsy reveals
W’s brain is intact and there is carbon monoxide in her blood-stream; H’s brain is
crushed and there is no carbon monoxide in his blood-stream. Is there sufficient
evidence of W’s survival?
In this case, the court held that there was sufficient evidence that W
survived H. Nature of injuries sufficient evidence to suggest that W lived
longer than H
Can a person get around the problem created by the Uniform Simultaneous
Death Act? Yes. A person can get around the interpretational problems created
by the USDA by putting a provision in his will such as the following: “if any
person dies with me in a common disaster, any property given to such person by
this will shall pass as if such person predeceased me.”
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4. Shares of Decedents
In all jurisdictions, after the spouse’s share is set aside, the children and the issue
of the deceased children take the remainder of the property to the exclusion of
everyone else
Taking by Representation: This is the case where one of the decedent’s children
has predeceased him/her but the deceased child is survived by issue. Under the
doctrine of representation, the deceased child’s issue are allow to represent the
deceased child (i.e. – take his/her share). They’re 3 different views about what
taking by representation means.
Illustration: The intestate decedent, A has 3 children: B, C, and D. C
predeceased A. C is survived by a husband and 2 children F and G. A is survived
by two children B and D. D has two kids H and I. B has one child E. How are
A’s assets going to get distributed?
If all three of A’s children were alive each would get a 1/3 share of A’s
estate.
Because C is not alive C’s children (F and G) take C’s share by
representation. These get to split C’s 1/3 share so that each gets a 1/6
share. C’s husband gets nothing because son-in-laws and daughter-inlaws are excluded as intestate successors in virtually all states. D and B
(A’s surviving children) each get their 1/3 share. D’s children (H and I)
and B’s child (E) take nothing because their parents are living.
A
B
C (leaves husband)
E
F
G
D
H
I
(Survivors are underlined; all others are dead)
What would happen if C did not have any issue? The estate would just
be divided up between B and D as if C didn’t exist
Starting Point: Where do you start to divide up the pot into shares?
Why is determining where you begin to divide up the pot so important? This
is key because the level at which you start to divide the pot into shares will
determine the distribution
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a. Class Per Stripes Distribution
Classic Per Stripes Distribution: divides the property into as many
shares as there are living children of the designated person and deceased
children who have living descendant.
Where do you start to divide the pot? At the level of the living
decedent’s children or at the level of the deceased children’s living
decedents
Hypo: A, decedent, had 2 children (B & C). B and C are dead. B had one
child D. D is still alive. C had two children E and F. E and F are dead.
E’s two children (G and H) are alive. F’s child I is alive. How does A’s
estate get distributed under the classic per stripes distribution scheme?
The pot gets divided at the level of A’s children (B & C). Because A had 2
kids the pot gets divided into 2 pieces. Thus if B and C were alive they
would each get ½ of A’s estate. But B and C are not alive so we must look
at generational levels to below B and C to see if they have any living
decedents who can take by representation. B’s issue D is alive, so D takes
B’s ½ share by representation. C’s issue E and F are not alive, so we
must go down to the next generational level to see if E and F have any
living decedents who can take by representation. If E and F were alive
they would have split C’s ½ share equally so that they would have each
gotten ¼. F is survived by issue I: I will take F’s ¼ share by
representation. E is survived by issue G and H. G and H will take E’s ¼
share by representation such that they each get half of it – G gets 1/8 and
H gets 1/8.
A
B
C
D (½)
E
G (1/8) H(1/8)
(Survivors are underlined; all others are dead)
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F
I (¼)
b. Modern Per Stripes Distribution
Modern Per Stripes Distribution: Divides the decedent’s estate into shares
at the generational level nearest decedent where one or more descendants of
the decedent are alive and provide for representation of any deceased
descendant on that level by his/her descendants (p. 87)
Where do you begin to divide up the pot? Go down the generational tree
until we find someone alive and then start the distribution process
HYPO: A, decedent, had 2 children (B & C). B and C are dead. B had one
child D. D is still alive. C had two children E and F. E and F are dead. E’s
two children (G and H) are alive. F’s child I is alive. How does A’s estate get
distributed under the modern per stripes distribution scheme?
Neither B or C (A’s children) are alive so we move down to the next
generational level to see if there is anyone alive. In the next level (level of
A’s grandchildren) D is alive so we start dividing the pot at this level. We
divide into as many pieces as there are living children and/or deceased
children with living descendants. We divide the pot into 3 because there are 3
people at this generational level (note that the two who are dead have living
descendants). D takes 1/3 share. If E were alive he would get 1/3 share but
he is not so we look to the next generational level to see if he has any living
descendants who can take his share by representation. E has two living
descendants – G and H. G and H take E’s 1/3 share by representation,
splitting it equally between them such that they each get a 1/6 share. F would
get a 1/3 share if he were alive. But because F is not alive we need to look to
the next generational level to see if F has any living descendants who can take
F’s 1/3 share by representation. F has one living descendant – I. I will take
F’s 1/3 share by representation.
A
B
C
D (1/3)
E
G (1/6) H(1/6)
(Survivors are underlined; all others are dead)
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F
I (1/3)
c. UPC § 2-106 Distribution Method
§ 2-106 Representation, p. 88
If, under § 2-103, a decedent’s intestate estate or a part thereof passes “by
representation” to the decedent’s descendant, the estate or part thereof is
divided into as many equal shares as there are:
(i)
surviving descendents in the generation nearest to the descendant
which contains one or more surviving descendants and
(ii)
deceased descendants in the same generation who left surviving
descendants, if any. Each surviving descendant in the nearest
generation is allocated one share
The remaining shares, if any, are combined and then divided in the same
manner among the surviving descendants of the deceased descendants as if the
surviving descendants who were allocated a share and their surviving
descendants had predeceased the decedent.
Where do you begin to divide the pot? Start dividing the pot at the first
generational level where there is someone alive. This differs from modern per
stripes distribution in that you divide up the pot where there is someone alive,
give that person his share, then move the remaining as a whole down to the
next generational level where there are living descendants and split that
remaining share as whole among those living descendants
Note: UPC § 2-106 ties to put into effect what most people want. By not
dividing the pot until you hit a generational level that tries to treat all the great
grandchildren the same (i.e. – give them equal shares). Most people assume
that if they die intestate all their great children will get equal shares, however,
that will only happen under the UPC § 2-106 distribution scheme
HYPO: A, decedent, had 2 children (B & C). B and C are dead. B had one
child D. D is still alive. C had two children E and F. E and F are dead. E’s
two children (G and H) are alive. F’s child I is alive. How does A’s estate get
distributed under the distribution scheme in UPC § 2-106?
Under UPC § 2-106 we first begin to divide the pot at the first generational
level where we find someone alive. Neither of A’s children, B or C are alive
so we look to the next generational level to see if either of them has any living
descendants. B’s issue D is alive. There are two others at that generational
level, C’s issue E and F. So the pot gets divided into 3. Because D is alive
and ready to take he gets a 1/3 share. 2/3 of the pot remains. Because
neither E or F is alive, the remaining 2/3 share gets dropped down to the next
generational level as a whole. We then split the 2/3 share equally between the
living descendants. E has two living decedents: G and H. F has one living
descendant – I. Thus there are a total of 3 living descendants at the
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generational level of (A’s great grandchildren). The three great grandchildren
(G, H, and I) get to split the 2/3 share equally between them. Thus G, H, and I
each get a 2/9 share.
The 2/3 remaining
A
in the pot moves down
B
C
D (1/3)
E
G (2/9) H(2/9)
F
as a WHOLE to the
next generational level
where there are living
descendants and then
split equally among
those in that
generational level
I (2/9)
(Survivors are underlined; all others are dead)
Things to remember
 Under all 3 methods, do not go beyond somebody who is alive. Once you find
someone alive stop there!!!!!
 These distribution schemes come into play only if you don’t have a will
 Sometimes you will end up with the same result under all 3 distribution
schemes but that is not always the case
5. Negative Disinheritance
Traditional Rule: An old rule of American inheritance law says that
disinheritance is not possible by a declaration in a will that “my son John shall
receive none of my property.” To disinherit John, T would have to devise his
entire estate to other persons. If there is a partial intestacy for some reason, John
will take an intestate share notwithstanding such a provision in a will.
UPC § 2-101(b) authorizes a negative bequest. The barred heir is treated as if
he disclaimed his intestate share, which means that he is treated as having
predeceased the intestate.
UPC § 2-101(b) A decedent by will may expressly exclude or limit the
right of an individual or class to succeed to property of the decedent
passing by intestate succession. If that individual or a member of that
class survives the decedent, the share of the decedent’s intestate estate
to which that individual or class would have succeeded passes as if that
individual or each member of that class had disclaimed his or her
intestate share (p. 72)
CAUTION: You need to know whether UPC § 2-101(b) has been enacted in
your jurisdiction to know whether you can specifically disinherit someone in your
will
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6. Shares of Ancestors and Collaterals
Collateral kindred: All persons who are related by blood to the decedent but
who are not descendants or ancestors
1st line collateral: Descendants of the decedent’s parents, other than the
decedent and the decedent’s issue (i.e. – siblings, nieces, nephews)
2nd line collateral: Descendants of the decedent’s grandparents, other than the
decedent’s parents and their issue (i.e. – aunts, uncles, cousins)
What does the table of consanguinity do? It categorizes your relatives in degree
of their relationship to you
How does the table of consanguinity work: You start at the top row of the first
column and work your way down to see if there is a direct decedent to take. If
there is no one in that column then you go to the top of the 2nd column and work
your way down to see if there are 1st line collateral to take. If there are no 1stline collateral to take, then there are several different systems to determine which
relative should take (see below).
When do we use the table of consanguinity? The table of consanguinity comes
into play when we are trying to determine which collateral relative(s) should take.
Thus if there are direct decedents who are ready and willing to take we do not use
the table of consanguinity
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Table of Consanguinity (p. 92)
Direct
descendants
First line
Second line
Third line
Fourth line
Great-great
grandparents
3
Great
grandparents
5
Great-grand
uncles/aunts
2
Grandparents
4
Great
uncles/aunts
6
1st cousins
twice removed
1
Parents
3
Uncles
Aunts
5
1st cousins once
removed
7
2nd cousins once
removed
2
Brothers
Sisters
4
1st cousins
6
2nd cousins
8
3rd cousins
1
Children
3
Nephews
Nieces
5
1st cousins once
removed
7
2nd cousins once
removed
9
3rd cousins once
removed
2
Grandchildren
4
Grand nephews
Grand nieces
6
1st cousins twice
removed
8
2nd cousins twice
removed
10
3rd cousins twice
removed
3
Great-grand
children
5
Great-grand
nephews / nieces
7
1st cousins thrice
removed
9
2nd cousins
thrice removed
11
3rd cousins
thrice removed
Person deceased
If there are no 1st line collateral, there several different systems to determine
who is next in line of succession
a. Parentelic system: The intestate estate passes to grandparents and their
descendants, and if none to great-grandparents and their descendants, and if
none to great-grandparents and their descendants, and so on down each line
(parentela) descended from an ancestor until an heir is found
Keep moving through these lines to the right until you find a
category where there is somebody alive who is ready and willing
to take
b. Degree-of-relationship system: The intestate estate passes to the closest of
kin, counting degrees of kinship
How do you determine the degree of the relationship of the
decedent to the claimant? To ascertain the degree of relationship
of the decedent to the claimant you count the steps (counting one
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for each generation) up from the decedent to the nearest common
ancestor of the decedent and the claimant, and then you count the
steps down to the claimant from the common ancestor. The total
number of steps is the degree of the relationship
Under this system your estate goes to your closet kin by counting
the degrees of relationship on the chart (that’s what the numbers
are for). You can’t move horizontally across these rows. Follow
the lines + count the steps (i.e. – parents are 1st degree,
grandparents are 2nd degree, great grandparents are 3rd degree)
c. UPC system: Is the most restrictive system w/r/t collateral relatives. The
UPC system excludes the last two columns of the table of consanguinity.
Under this system only collateral relatives in the first two columns are
entitled to take (i.e. – it does not permit inheritance by intestate succession
beyond grandparents and their descendants). The consequence of this is that if
decedent doesn’t have a collateral relative in the first two columns who can
take (i.e. – he only has a great-grand parent or a descendant thereof who can
take), the decedent’s estate escheats to the state
§ 2-103 Share of heirs other than surviving spouse, p. 73
Any part of the intestate estate not passing to the decedent’s
surviving spouse under § 2-102, or the entire estate if there is no
surviving spouse, passes in the following order to the individuals
designated below who survive the decedent
1. decedent’s descendants by representation (children /
grandchildren)
2. decedent’s parent(s)
3. descendants of the decedent’s parents (siblings)
4. decedent’s grandparents or their descendants by
representation (grandparents)
§ 2-105 No Taker: If there is no taker under the provisions of this
Article, the intestate estate passes to the state (p. 74)
Problems (p. 96)
7. Half-Bloods
UPC § 2-107: Half-bloods (i.e. half-sister) are treated the same as whole-blood relatives
[This is the approach taken by the majority of jurisdictions]
Majority view: In the majority of jurisdictions, half-bloods (i.e. half-sister) are treated
the same as whole-blood relatives
Minority positions
a. Half-share: In a few states a half-blood is given a half share (Virginia)
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b. Take only when no whole-blood relative of same degree: In a few states, a halfblood takes only when there are no whole-blood relatives of the same degree
(Mississippi)
Caution: You need to be aware of the what the rules are in your particular jurisdiction to
determine who gets what in this situation
HYPO : M has 1 child (A) by her 1st marriage and 2 children (B & C) by her 2nd
marriage. M and her second husband die. Then C dies intestate, unmarried and w/out
descendants. How will C’s property be distributed? (p. 97)
The way in which C’s property will be distributed will depend upon the intestacy
laws of the state:
1) UPC: The UPC makes no distinction between half-blood and whole-blood
relatives. Thus under the UPC both A and B will get ½ of A’s estate since C has
no spouse or descendants
2) Virginia: Under the intestacy laws of Virginia, a half-blood is given a half share.
Thus A is entitled to get half of what's B entitled to get under the laws of
intestacy. Thus A only gets half as much as B
3) Mississippi: Under the intestacy laws of Mississippi, a half-blood takes only
when there are no whole-blood relatives of the same degree. Thus A gets nothing
because there is a whole-blood relative of the same degree (B) to take.
B. Transfers to Children
1. Meaning of Children
Issue: What does it mean for somebody to be your child?
a. Posthumous Children
Rebuttable presumption: Courts have established a rebuttable presumption that
the normal period of gestation is 280 days. This means that if the child is born
w/in that 280 gestation-period the child is presumed to be the man’s child and
thus is entitled to a share of the estate. If the child claims that the conception
dated more than 280 days before birth, the burden of proof is usually upon the
child to prove that he is the man’s child. (p. 97)
b. Adopted Children
Hall v. Vallandingham (Md. App 1998), p. 98
Facts: Earl Vallandingham died in 1956 survived by his widow (Elizabeth) and
their four children. Two years later, Elizabeth married Jim Killgore. Jim adopted
Elizabeth’s children. In 1983 (25 years after the adoption of Earl’s children by
Killgore), Earl’s brother died childless, unmarried, and intestate. His only heirs
were his surviving brothers and sisters and the children of brothers and sisters
who predeceased him. Earl’s four kids brought suit alleging that they were
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entitled to take by representation the distributive share of their uncle’s estate that
their father would receive if he were alive
Held: Because kids had been adopted by their step-father they lost all rights to
inherit from the relatives of their natural father under Maryland law
Rationale: Maryland legislature enacted a statute in 1963 that, “Upon entry of a
decree of adoption, the adopted child shall lose all rights of inheritance from its
parents and from their natural collateral or lineal relatives.” Court reasons that
because the statute eliminates the adopted child’s right to inherit from the natural
parent it concomitantly abrogated the right to inherit through the natural parent by
way of representation. The court points out that prior to the enactment of the 1963
statute, a child could inherit from both adoptive relatives and natural relatives
Note: Under Maryland law the an adopted child can inherit from his adopted
relatives but not from his natural relatives
Criticism: Although the statute as a whole seems equitable, the result doesn’t
seem equitable under these circumstances because the kids still have ties to their
natural father’s family.
What’s the policy behind letting an adopted inherit from his adopted
parent’s relatives but not from his natural relatives?
There’s an equity concern. Legislature doesn’t want to put an adopted
child into a better position than a child that is just born into the family
(you can inherit under the laws of intestacy from two parents max; not 3)
UPC § 2-113 Individuals Related to Decedent through Two Lines (p. 101)
An individual who is related to the decedent through two lines of relationship is
entitled to only a single share based on the relationship that would entitle the
individual to the larger share
UPC § 2-114 Parent & Child Relationship (p. 101)
(a) Except as provided in subsections (b) and (c), for purposes of intestate
succession by, through, or from a person, an individual is the child of his [or
her] natural parents regardless of their marital status. The parent and child
relationship may be established under [the Uniform Parentage Act]
[applicable state law] [insert appropriate statutory reference]
(b) An adopted individual is the child of his [or her] adopting parent or parent(s)
and not of his [or her] natural parents, but adoption of a child by the spouse of
either natural parents has no effect on:
(i)
relationship between the child and that natural parent or
(ii)
right of the child or a descendant of the child to inherit from or
through the other natural parent
(c) Inheritance from or through a child by either natural parent or his [or her]
kindred is precluded unless that natural parent has openly treated the child as
his [or hers], and has not refused to support the child
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States generally adopt one of the following statutory schemes that pertain to
the inheritance rights of an adopted child
1) Adoptive child inherits only from adoptive parents and their relatives:
In some states, an adopted child inherits only from adoptive parents and
their relatives (Maryland)
2) Adoptive child inherits from natural and adoptive parents/relatives:
In other states, an adopted child inherits from both adoptive parents and
natural parents and their relatives (Texas)
3) UPC § 2-114(b): Under the UPC, an adopted child inherits from adoptive
relatives and also from natural relatives if the child is adopted by a stepparent
Note: The result in Hall v. Vallandigham would have been different if
the state followed the UPC. If UPC 2-114(b) had been applicable in
Hall v. Vallandingham, Earl’s children, adopted by their stepfather,
would have inherited from their natural father’s brother.
Under the UPC, if a child has been adopted by a stepparent, can the natural
relatives of that child inherit from child? No. In a stepparent adoption, under
the UPC, a child can inherit from their natural relatives, but the natural relatives
cannot inherit from them
Ex: In Hall v. Vallandingham, even though Earl’s children could have inherited
from their father’s natural brother (William) under the UPC because they had
been adopted by their stepfather, William would not have been able to inherit
from Earl’s children.
When can a natural parent inherit from a child? Under the UPC § 2-114(c), a
natural parent can inherit from his natural child only when he has acknowledged
the child and has provided the child with support while the child was alive. [This
provision was designed to deal primarily with the situation where a child is born
out of wedlock]
§ 2-114(c) Inheritance from or through a child by either natural parent or
his [or her] kindred is precluded unless:
▪ natural parent has openly treated the child as his [or hers], and
▪ has not refused to support the child (p. 101)
Does UPC § 2-114(c) apply to adoptive parents? While § 2-114(c) does not
make any reference to adoptive parents but there should not be any distinction in
that case. There could be a situation where a couple adopts a child and gets
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divorced shortly thereafter. It seems reasonable that in those circumstances § 2114(c) would apply
Doctrine of Equitable Adoption
Doctrine of Equitable Adoption: Equitable adoption occurs when a
person acts as though he has adopted a child (i.e. – hold the child out as
his own) even though a formal-court approved adoption never occurred
What sort of situation triggers the doctrine of equitable adoption?
Arises in situation where the child’s natural parents/legal guardian enters
into an oral adoption agreement with another person or persons.
Factors courts consider: Courts in states that recognize equitable
adoption examine a host of surrounding factors in making a determine that
an equitable adoption has occurred including:
▪ whether the person made a good faith attempt to adopt that failed
for some reason
▪ whether the person held the child out has actually having been
adopted
From whom can an equitably adopted child inherit? Equitable
adoption permits an equitably adopted child to inherit from his equitably
adopted parents. Courts are split as to whether an equitably adopted child
can inherit from the relatives of his equitably adopted parents.
Can equitably adopted parents and their relatives inherit from their
equitably adopted child? Equitably adopted parents and their relatives
cannot not inherit from the child. Having failed to perform the contract,
they have no claim in equity
O’Neal v. Wilkes (SCT of GA 1994), p. 109
Facts: Hattie’s mother died in 1957 when she was 8 years old. Hattie’s father
never recognized her as his daughter. After Hattie then lived with her maternal
aunt. Then she was sent to live with her paternal aunt. The paternal aunt sent
Hattie to live with Mr. Cook. Hattie lived with Cook for more than 10 years,
until she was married. Cook referred to Hattie as his daughter and her children as
his grandchildren. Cook died intestate. Hattie claimed that under the theory of
equitable adoption she should be able to inherit from just as though Cook legally
adopted her
Issue: Was there an equitable adoption here?
Rule: The theory of equitable adoption is based on contract. A contract to adopt
cannot be specifically enforced if it’s entered into by a person w/out authority to
consent to the adoption. Consent to an adoption may only be given by a child’s
parent or legal guardian.
Held: There was not a legal adoption
Rationale: Hattie’s paternal aunt who gave her to Mr. Cook was not her legal
guardian. Because she was not Hattie’s legal guardian she could did not have the
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authority to give consent to the adoption. The adoption contract was therefore
invalid and thus Hattie’s claim for equitable adoption is defeated
Dissent (Sears): The interests of the child are unfairly and inequitably harmed
by insisting upon the requirement that a person with consent to adopt had to have
been a party to the K. That this legal requirement is held against the child is
particularly inequitable bc the child, the course of whose life is forever changed
by such Ks, was unable to insure the validity of the K when the K was made.
Furthermore, where there is no person with the legal authority to consent to the
adoption, such as here, the only reason to insist that a person be appointed the
child’s legal guardian before agreeing to a K to adopt would be for the protection
of the child. By insisting upon this requirement after the adopting parent’s death,
this court is harming the very person that the requirement would protect . . .
Equity ought to intervene on the child’s behalf in these types of cases and require
the performance of the K if it is sufficiently proven
Criticism: Court took a very technical approach to this decision. Equity looks to
fairness. Equitable remedies in contract try to do something that is fair to all the
parties despite the technicalities in the contract. Equitable adoption was created
to give some notion of fairness. But here we don’t seem to see any fairness – by
enforcing the technical aspects it’s as though the court is throwing equitable
contract remedies out the window
Note: We don’t have any indications as to Cook’s expectations. Maybe in this
community people do not go through legal adoption procedures – maybe legal
adoptions are the norm
Note: The majority was made up entirely of men; both dissenters were women
Note: This was not a clear-cut equitable adoption. But it shows you the
types of arguments that can be made on both sides
HYPO: H and W take baby A into their home and raise A as their child
but do not formally adopt A. Can A inherit from H and W under the
doctrine of equitable adoption?
Under the doctrine of equitable adoption an oral agreement to
adopt A, between H and W and A’s natural parents, is implied and
specifically enforced against H and W. As against H and W,
equity treats A as if the contract had been performed by H and W;
they are estopped to deny a formal adoption took place
Adoption by Same-Sex Couples
Issue: Who is a child adopted by a same-sex couple entitled to inherit
from?
Some courts have held that the child is entitled to inherit from both
partner
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Adoption of Tammy (MA 1993): The child had been conceived by
artificial insemination and adopted by the mother’s lesbian partner.
Court held that a child adopted by a same sex partner would inherit
through both mothers as the child of each. (p. 105)
HYPO: Suppose that a child lives with a natural mother (impregnated
with donor sperm by artificial insemination) and his adoptive mother
(natural mother’s lesbian partner). The child’s natural mother dies. Does
the child get to inherit from his natural mother under UPC § 2-114(b)?
If you technically apply UPC § 2-114(b) there are problems.
Under UPC § 2-114(b) the only time a child can inherit from his
natural parent and natural relatives is when he has been adopted by
a stepparent. A member of a same sex couple who adopts a child is
not a stepparent!!!!!
Adult Adoption
Majority view: Most jurisdictions do not draw distinctions between adult
adoption and childhood adoption. Thus, in the majority of jurisdictions the
inheritance rights of people adopted as adults are the same of those of
people adopted as children (p. 107)
Why might a person want to adopt an adult? There are, in other words,
circumstances in which a person wants to insure that another person gets
his/her money
How can the adoption of an adult be useful in preventing a will
contest?
The only person who have standing to challenge the validity of a will are
those persons who would take if the will were denied probate. If the
testator adopts a child, the testator’s relatives cannot contest the will since
they now can inherit nothing by intestacy
Greene v. Fitzpatrick (Kentucky 1927): A wealthy bachelor adopted a married
woman who had been his secretary for many years and with whom it was
alleged that the bachelor had a sexual relationship, Court held that the adoption
could not be set aside by the persons who would have been heirs but for the
adoptions
Collamore v. Learned (MA 1898): A 70-year-old man adopted three persons of
ages 43, 39, and 25. Court held that the adoptions could not be set aside by the
persons who would have been heirs but for the adoptions. Justice Holmes
remarked that adoption for the purpose of preventing a will contests was
“perfectly property” (p. 107)
Note: Relatives may attack an adoption decree on the grounds of mental
incapacity or undue influence, and then if they succeed in setting aside the
adoption, then attack a will leaving property to the adoptee
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In some jurisdictions the adoption of an adult love is not possible (NY)
In re Robert Paul P. (NY 1984): Court held that a homosexual male, age 57, could not
legally adopt his lover, age 50, although NY statutes permit the adoption of adults. The
court thought that a sexual relationship was incompatible with a parent-child relationship
(p. 107)
Should a person adopted when an adult be able to inherit from the adoptive
parent’s relatives as well as from the adopted parents?
Technically there is no legal problem with a person adopted as an adult inheriting
from the adoptive parent’s relatives as well as from the adopted parents. The
problem is that when a person adopts an adult it’s not very likely he/she is going
to be announcing the fact the fact that he/she is doing this – so the relatives
involved may have no notice of the adoption and therefore won’t plan for it by
making a will or by putting a provision into the will. The moral of the story is
that if you don’t have a will you need this contingency in keep in mind.
Children Born by Reproductive Technology
Issue: How does this impact a parent’s and/or child’s right to inherit?
Right now there is no clear indication. Most cases that deal with these
advances really determine whether some can be deemed a “parent” who is
“required to provide support”
Just because you donate sperm to a sperm bank does not mean that the
court will determine that you are a “parent” who is “required to provide
support”
Cases dealing with inheritances will probably follow the line of cases that
determine whether you qualify as a “parent” who is “required to provide
support.”
c. Children Born Out of Wedlock
Inheritance from mother: All jurisdictions permit a nonmartial child to inherit
from his/her mother
Inheritance from father: The rules respecting a nonmaritial child’s right to
inherit from his/her father vary from state to state
Most states permit paternity to be established by
1) evidence of the subsequent marriage of the parents
2) acknowledgment by the father
3) adjudication during father’s life
4) clear & convincing proof after the father’s death
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Uniform Parentage Act (1973)
When a child’s father and mother do not marry or attempt to marry, a parent-child
relationship is presumed to exist between a father and a child if
1) father receives the child into his home and openly holds out the child as
his natural child while the child is a minor, or
2) father acknowledges his paternity in a writing filed with an appropriate
court or administrative agency
When must an action be brought under the Uniform Parentage Act? (p. 116)
1) If a father-child relationship is presumed to exist, an action to determine its
existence may be brought at any time
2) If a child has no presumed father, an action to establish a parent and child
relationship must be brought w/in 3 years after the child reaches majority
Note: Most of the statutes dealing with the issue of paternity were established
before DNA testing came into the picture
What position do court take about using DNA testing to establish paternity
when the father is deceased? When the father is deceased the courts are split as
to whether to allow DNA testing when the father did not acknowledge the child
during his life time
Hecht v. Superior Court (CA App 1993), p. 117
Facts: Kane, a divorced father of two college-aged children with Deborah Hecht for
about 5 years prior to committing suicide on Oct 30, 1991. In Oct 1991, Kane deposited
15 vials of his sperm in a Los Angeles sperm bank. He authorized the sperm bank to
release the specimens to Hecht or to her physician should Hecht desire to become
impregnated with his sperm after his death. Kane’s will bequeaths all right and title to the
sperm specimens to Hecht along with other property. Kane sent letter to his kids on Oct
21, 1991 stating “it may be that Deborah will decide – as I hope she will – to have a child
by me after my death. I have been assiduously generating frozen sperm samples for that
eventuality.” Kane’s children contested the will, alleging lack of mental capacity and
undue influence by Hecht. Kane’s children petitioned the TC for destruction of the sperm
on public policy grounds. TC ordered that the sperm be destroyed. Hecht appealed
Issue # 1: Are the viles of sperm property?
Held: At the time of his death Kane had an interest, in the nature of ownership, to the
extent that he had decision-making authority as to the use of his sperm for reproduction.
Such an interest falls within the broad definition of property. Therefore, the probate court
had jurisdiction to determine what was to be done with this property (probate court is a
court of limited jurisdiction: it distributes property)
Issue # 2: As a public policy matter what should happen to the sperm?
(1) Does public policy prohibit the artificial insemination of an unmarried woman?
Public policy does not prohibit the artificial insemination of an unmarried woman.
The CA legislature has afforded unmarried women a statutory right to bear children
by artificial insemination w/out a fear of a paternity claim, through a provision of the
semen to a licensed physician
(2) Does public policy preclude post-mortem artificial insemination? Ct points to §
4(b) of the Uniform Status of Children of Assisted Conception Act which provides
“An individual who dies before implantation of an embryo, or before a child is
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conceived other than through sexual intercourse, suing the individual’s egg or sperm
is not a parent of the resulting child” Ct says that under this statute any child
conceived after Kane’s death wouldn’t be considered his child. Ct says bc of this
statute there is no public policy reason not to use the sperm
Note: The court really only had to answer an easy question here – should the viles of
sperm be destroyed or not? That’s the question that they are really being asked to decide
here. The court didn’t have to answer the hard questions (bc of the law of the time) as to
what happens the children’s inheritance rights would be if the girlfriend opts to bear
children from the sperm
Note: Since this case was decided, the CA legislature changed the law providing that
“paternity may be established after the father’s death by clear and convincing evidence
where it was impossible for the father to hold out the child as his own, which appears to
cover the case where as here the child was conceived after the father’s death. Now there
could be difficult questions presented
What can we do in year 2001 to ensure a timely distribution of assets after someone
dies?
There has to be a point at which you can close the estate and distribute the assets. Many
states have statutes of limitations imposed to deal with these potential distribution
problems. Many states impose a 1 year statute of limitations after the father’s death to
children out of wedlock (kids born of that father after the SOL are out of luck)
2. Advancements
Caution: Advancements only come into play when intestate decedents are
involved!!!
Issue: Is the property / money your parent gave you while he/she were alive a gift
or an advancement?
It’s seldom clear-cut whether something is a gift or an advancement !!!
Why does it matter whether something is categorized as “gift” or
“advancement”? If something is found to be an advancement, your share may
be drastically reduced or may not get anything upon the death of your intestate
parent. If on the other hand, something is determined to be gift then that will
have no effect upon the amount of the estate you can receive upon the death of
your intestate parent
What types of things count as advancements?
HYPO: O has 3 children. One daughter, G, does not leave home but lives with O
on O’s farm until O dies. A few years before death, O deeds the farm to G. O
dies intestate. G claims that the gift is not an advancement but an extra gift for
extraordinary services rendered. What result?
Court held that it was an advancement but you can make strong
arguments that it was a gift
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HYPO: O gives his son B $20,000. B is ill and unable to work and support his
family. Is this an advancement?
Court said that it was a gift because there were special needs involved
HYPO: O’s daughter C is smart, goes to Yale Medical School and acquires an
M.D. degree. O pays the tuition ($90,000). Is this an advancement?
In most cases, college tuition will be considered a gift and not an
advancement. However how the court will treat money given for
professional degree / graduate degree is unclear – courts could
potentially treat it as an advancement or a gift
On what assumptions does the doctrine of advancement rest? An
advancement is seen an early distribution of the decedent’s estate. The doctrine of
advancement assumes that the parent wants to distribute his/her assets equally
among the children. The doctrine tries to achieve this by taking lifetime gifts into
account in determining the amount of the children’s shares. The view is that if
that money/property is not taken into account, the decedent’s children won’t be
getting truly equal shares bc the one who received a chuck of the money/prop
prior to the parent’s death will actually be getting a larger share than his/her
siblings. In this way the doctrine of advancement aims to serve as an equalizer .
Presumptions
Why do the presumptions matter? The presumption is going to strongly
influence the outcome of the burden. Generally, the party whom the presumption
favors wins.
1) Traditional CL Presumption of Advancement: Life-time gift =
Advancement
Historically, under the CL, any lifetime gift to a child was presumed to be an
advancement – in effect, a prepayment – of the child’s intestate share. To
rebut the this presumption, the child had the burden of establishing that a
lifetime transfer was intended as an absolute gift that was not to be counted
against the child’s share of the estate
2) Modern Presumption: Life-time gifts = Gift (p. 130)
Today the rebuttable presumption is generally that a gift is a gift – not an
advancement.
(a) In many states, a lifetime gifts is presumed not to be an advancement
unless it is shown to have been intended as such
(b) In other states, a gift is not an advancement unless is declared as such in a
writing singed by the grantor or grantee
3) UPC § 2-109(a) Advancements. If an individual dies intestate as to all or a
portion of his [or her] estate, property the decedent gave during the decedent’s
lifetime to an individual who, at the decedent’s death, is an heir is treated as
an advancement against the heir’s intestate share only if:
(i)
decedent declared in a contemporaneous writing or heir acknowledged
in writing that the gifts is an advancement, or
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(ii)
decedent’s contemporaneous writing or heir’s written acknowledgment
otherwise indicates that the gifts is to be taken into account in
computing the division and distribution of the decedent’s intestate
estate (p. 130)
 In other words, UPC § 2-109(a) presumes that it is a gift unless there is
contemporaneous writing from the decedent saying that it was an
advancement or a written acknowledgment by the heir that it was an
advancement
Note: UPC version might cut down on litigation bc you need some writing or evidence of a
contemporaneous statement to rebut the presumption that the money/property the decedent
gave was a gift
Note: UPC has been criticized as virtually eliminating the doctrine of advancements from the
law of intestate succession. Persons who do not write wills or consult lawyers and die
intestate will rarely know that a lifetime gift must be stated in writing to be an advancement to
be charged against the donee’s intestate share (p. 130)
Note: UPC § 2-109 applies to advancements made to spouses and collaterals (such as nieces
and nephews) as well as to lineal descendants. In most states, only gifts to lineal descendants
are considered advancements (p. 130)
Effect of an Advancement on the Distribution of the Intestate’s Estate
If a gift is found to be an advancement, how does that effect distribution?
If a gift found to be an advancement, the donee must allow its value to be brought
into the hotchpot if the donee wants to share in the decedents estate
HYPO: Decedent leaves no spouse, three children, and an estate worth
$50,000. Kim (daughter) received an advancement of $10,000. How are
the shares of the estate calculated?
$10,000 gifts is added to the $50,000. The next step is to divide
the $60,000 total by 3 bc there are 3 kids. $60,000 divided by 3
= $20,000. Each of the kids thus would be entitled to get
$20,000. Kim, however, has already received $10,000 of her
share as an advancement so she receives only $10,000 from the
estate. The other two children each get their full $20,000 share
whereas neither of them has received an advancement
HYPO: Decedent leaves no spouse, three children, and an estate worth
$50,000. During decedent’s life time, Kim (daughter) had been given
property worth $34,000 as an advancement. How are the shares of the
estate calculated? Would Kim have to give back a portion of the
amount?
If Kim had been given property worth $34,000 as an
advancement she would not have to give back a portion of this
amount. Kim will stay out of the hotpotch, and the decedent’s
$50,000 will be equally divided between the other two children
such that B and Cc each get $25,000.
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HYPO: Betty received $20,000 five years ago from her parents. Betty
has two siblings. Her parents die leaving an estate of $50,000. How are
the shares of the estate calculated?
Betty does not have to give anything back. B and C get to share
what’s left: they each get $25,000. Betty gets nothing
What happens when a parent makes an advancement to the child and the
child predeceases the parent?
1) Common Law. Under the CL, when a parent makes an advancement to the
child and the child predeceases the parent, the amount of the advancement is
deducted from the shares of such child’s descendants if other children of the
parent survive (p. 129)
2) UPC § 2-109(c): If the recipient does not survive the decedent, the
advancement is not taken into account in determining the share of the
recipient’s issue (p. 130)
3.
Managing a minor’s property
Transfers of property to a minor raise special problems because a minor does not
have the legal capacity to manage property
Generally there are 2 people involved with a minor whose parents are
deceased
1) Guardian of the person: A guardian of the person has responsibility for the
minor’s custody and care. A guardian of the person has no authority to deal
with the child’s property unless the parents say that that’s how they want it to
be
2) Person who manages the child’s property
What happens if both parents die while the child is minor and their wills do
not designate a guardian of the person? The court will appoint a guardian from
among the nearest relatives – this may not be the person the parents would have
wanted to have custody
Principal reasons a parent with a minor child needs a will
1) to designate a “guardian of the person” in case both parents die during the
child’s minority
2) to deal with management of the child’s property
3 Alternatives for the Management of the Minor’s Property are Available
1) Guardianship (conservatorship):
2) Custodianship
3) Trusteeship
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 She really didn’t talk about these. See pp. 132-34 for all the details
4. Transfer of an Expectancy (p. 131)
Does a living person have heirs? No living person has heirs
Heirs Apparent: Persons who would be V’s heirs if V died w/in the next hour.
Heirs apparent have a mere “expectancy.” This expectancy can be destroyed by
V’s deed or will. It is not a legal interest at all. Because it is not a legal interest,
an expectancy cannot be transferred at law
C. Bars to succession (pp. 141–57)
1. Homicide
Views on how homicide effects succession
a. Slayer can take even if convicted: Legal title passes to the slayer and may be
retained by him regardless of whether he is convicted. The rationale behind
this rule is that the denial of the inheritance to the slayer because of his crime
would be imposing an additional punishment for his crime – a punishment
beyond that the legislature has deemed appropriate since the legislature did
not provide for this contingency in the laws of descent and distribution
b. Slayer treated as though predeceased victim: Legal title will not pass to
the slayer because of the equitable principle that no one should be able to
profit from wrongful conduct. In such case, legal title passes as though the
slayer predeceased victim
c. UPC: UPC provides that the killer is treated as having disclaimed the
property. Under the UPC disclaimer statute (§ 2-801), the disclaimant is
treated as having predeceased the victim
d. Constructive Trust (Majority position): Legal title passes to the slayer but
equity holds legal title in a constructive trust for the benefit of the victim’s
heirs. This disposition avoids a judicial grafting on the intestacy laws because
title passes under them the slayer. The doctrine of constructive trust prevents
the slayer form profiting from his crime
What is a constructive trust? A trust that arises by operation of law whereby
the court imposes a trust upon property lawfully held by one party for the
benefit of another, as a result of some wrongdoing by the trustee created so
that the trustee will not be unjustly enriched by his wrongful conduct
In re Estate of Mahoney (SCT of VT 1966), p. 141
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Facts: W was convicted of manslaughter for shooting H. H died intestate, left no
issue and was survived by W, father, and mother. H’s father was appointed
administrator of his estate. Probate Ct entered a judgement order decreeing the
residue of H’s estate, in equal shares, to H’s father and mother – finding that a
conviction of voluntary manslaughter disabled W from taking any part of her
husband’s estate. In VT, at this time, however, there was no statute in the books
that prohibited someone convicted of manslaughter from inheriting from his/her
victim
Issue: May a widow convicted of manslaughter in connection with the death of
her husband inherit from his estate?
Rule: Conviction of murder or voluntary manslaughter disables the party
convicted from inheriting any property from the decedent. Any inheritance in his
favor is held as a constructive trust in favor of the other heirs or next of kin
Held: There are two problems with what the probate court did
(1) W was convicted of manslaughter not murder. The court did not make clear
if she was convicted of voluntary or involuntary manslaughter – this makes a
big difference. If she was convicted of voluntary manslaughter then it’s
appropriate to impose a constructive trust. If she was convicted of
involuntary manslaughter it’s not appropriate to impose constructive trust.
To fix this problem the court remands the case to a civil court to determine
whether the wife committed voluntary or involuntary manslaughter (did she
intentionally kill him?). Based on that determination the court can determine
whether or not it’s appropriate to impose a constructive trust
(2) The manner in which the probate court reached its result. It distributed the
property directly to H’s parents w/out jumping through the necessary hoops:
“The judgment below decreed the estate directly to the parents which was in
direct contravention of the statutes of descent and distribution. The probate
court was bound to follow the statute of descent and distribution and
therefore its decree was in error and must be reversed
Order: Court reverses the case and remands it to the chancery court. Court didn’t
send it back to the probate court bc the probate court cannot give equitable relief.
You see this a lot in cases where there’s murder and someone is trying to inherit
money
Note: In 1972, a statute was enacted in VT providing that an heir, devisee or legatee who
“stands convicted in any court of intentionally and unlawfully killing the decedent” shall
forfeit any share in the decedent’s estate
Bottom line: You can’t kill some one and expect to inherit
Do the statutes that deal with the rights of a killer in the estate of a victim
apply to nonprobate transfers (joint tenancy, life insurance, pensions, etc.)?
UPC § 2-803: Bars the killer from succeeding to nonprobate as well as
probate property. It also provides that a “wrongful acquisition” of property
must be treated in accordance with the principle that a killer cannot profit
from his wrong
Note: This is a big issue because it’s likely that most of a victim’s
property will pass through these types of nonprobate transfers
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Is criminal conviction required?
UPC § 2-803(g)
▪ Criminal conviction of a felonious and intentional killing is
conclusive
▪ Acquittal does not preclude the acquitted individual from being
regarded as the decedent’s killer under this statute: In the absence of a
conviction, upon application of an interested person, the court must
determine whether, under the preponderance of the evidence standard,
the individual would be found criminally accountable for the killing. If
so found, the individual is barred. (lower standard of evidence bc
probate law is concerned about a killer not profiting from his wrong)
Many note cases pp. 145-47 skipped
2. Disclaimer
Issue: What happens when you don’t want the money/property you’re entitled to
take under the laws of intestacy?
Historically under the laws of intestacy you could not refuse to take your share
Disclaimer Statutes: Provides that the disclaimant is treated as having
predeceased the decedent. The decedent’s property thus does not pass to the
disclaimant and the disclaimant makes no transfer of it
UPC § 2-801
Renunciation: An heir renounces his inheritance
Disclaim: A will beneficiary disclaims a devise
Do you have to be alive to disclaim? The disclaimer statutes do not require that
you be alive to disclaim. In certain circumstances, a representative can disclaim
on your behalf
Ex: Your grandparents die leaving everything your parents. Your parents die a
short time later. Your parents representative(s) has the ability to disclaim on your
parent’s behalf so that it won’t have to be probated through your parents property
first
Why might you want to disclaim?
1) To save estate taxes
Ex: O dies intestate, survived by one sister (S). If S disclaims, S is treated as
having predeceased O. O’s estate will pass under the laws of intestacy to S’s
child B (O’s niece). In order to pass the property on to S’s child w/out a gift or
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estate tax being levied on it when it leaves S’s hands, S may decide to disclaim
the inheritance (p. 149)
Note: Under the Internal Revenue Code, only “qualified disclaimers” will avoid
gift tax liability by the disclaimant. If a person disclaims and the disclaimer is not
“qualified”, gift tax liability results. The I.R.C. requires a qualified disclaimer to
be made w/in 9 months after the interest is created or after the donee reaches 21,
which is ever later
2) To avoid creditors
Disclaimer relates back to the date of the decedent’s death for all purposes:
Regardless of when you disclaim, the disclaimer relates back for all purposes to
the date of the decedent’s death. It’s as though you never had the money because
the disclaimed property is treated as passing directly to others, bypassing the
disclaimant  this protects you from creditors
Note: Federal Gov’t as a creditor may be treated differently from individual
creditors. Courts are split on federal tax claims
What’s the effect of A disclaiming her share? The effect of A disclaiming is
that she’s treated as though she predeceased O for tax purposes and creditor
purposes only. It otherwise does not effect how the shares are distributed. The
reason for doing this is that it wouldn’t be fair to let A’s kids get a greater
inheritance bc she chooses to disclaim
HYPO: O has 2 children (A & B). B dies, survived by one child (C). Then O, a
widow, dies intestate. O’s heirs are A and C. A has 4 children. A disclaims. What
distribution is made of O’s estate if O leaves $100,000?
O (dies)
A
W
X
B dead
Y
Z
C
Classic Per Stripes Distribution: divides the property into as many shares as
there are living children of the designated person and deceased children who
have living descendant. You start to divide the pot at the level of the living
decedent’s children or at the level of the deceased children’s living decedents
Modern Per Stripes Distribution: Divides the decedent’s estate into shares at
the generational level nearest decedent where one or more descendants of the
decedent are alive and provide for representation of any deceased descendant on
that level by his/her descendants (p. 87) You begin dividing up the pot at the
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point on the generational tree until where you find someone alive and then start
the distribution process
UPC § 2-106: Start dividing the pot at the first generational level where there is
someone alive. This differs from modern per stripes distribution in that you
divide up the pot where there is someone alive, give that person his share, then
move the remaining as a whole down to the next generational level where there
are living descendants and split that remaining share as whole among those living
descendants
Troy v. Hart (MD App 1997), p. 151
Facts: Paul (disclaimant) is a resident of a hospice. Paul has no money (his expenses are
being paid by Medicaid and Medicare. Paul has 3 sisters. While Paul is in the hospice one
of his sisters (unmarried, no children) dies intestate. Paul and his other two sisters are her
only heirs. Mildred (sister) is appointed the representative of the estate. She thinks it
would be better if the two sisters got Paul’s share. She helps Paul execute a disclaimer.
Troy (Paul’s lawyer) learns about the disclaimer after the fact. He is upset and tries to
have disclaimer rescinded and have Mildred removed as the representative of the estate.
When then goes through courts Paul is dead
Issue # 1 : Was the disclaimer valid?
Held: Yes the disclaimer was valid
Issue # 2: Could Paul disclaim whereas he owed money to Medicaid and Medicare?
Held: Paul had obligation under the Medicaid statues to inform it of any inheritance he
received. Paul breached his obligation to Medicaid but by the time it learned about it
Medicaid’s only recourse would have been to cut Paul off from services – not a good
result.
Suggestion: Court suggests that the sisters should take the estate of the decedent under
the laws of intestacy subject to any claims that the state may have against their brother’s
estate for any Medicaid benefits improperly paid as a result of the brother’s failure to
inform Medicaid of his acquisition of the property
Note: The court makes a suggestion here of what the sisters do with their windfall and
not a holding bc there was probably some kind of settlement agreement going on in the
background. So we don’t have a clear holding that this is the appropriate thing for the
court do. Court hinting that this is another situation in which a constructive trust should
be imposed. Courts are likely to head in that direction to keep this kind of thing from
happening
Note: The one real loser in this case is Troy. If the court had found the disclaimer to be
invalid, Medicaid would take its hunk of the money and the remainder would go to Paul
Note: It is now a federal crime to for a person for a fee, to knowingly and willfully
counsel or assist an individual to dispose of assets in order to become eligible for
Medicaid “if disposing of the assets results in the imposition of a period of ineligibility.”
(p. 156)
Question: Would the actions of Attorney Veil in his visit with Paul constitute
criminal behavior? If not were his actions ethical?
Veil was trying to prevent Paul from reclaiming assets so technically he
did not “knowingly and willfully counsel or assist an individual to dispose of
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assets in order to become eligible for Medicaid.” In terms of ethics, however, it’s
certainly fine for Veil to act as an intermediary between a client and nonclient to
try to come to some sort of resolution between the two positions. In this case
there really wasn’t any fraud on Veil’s part (the only possible fraud’s revolves
around Paul’s failure to inform Medicaid). But as a lawyer you should be careful
about involving yourself in a situation like this. You have to be careful in what
you convince Paul to do even though it might advance the position of your
clients. In short, you need to be careful about where the line is and be careful not
to cross it
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Chp. 3. Wills: Capacity & Contests
A. Mental capacity
You need a certain amount of mental capacity to execute a will. Determining
what amount is required, however, is not always so easy
1. Why require mental capacity?
Rationales behind the mental capacity requirement
1) A will should be given effect only if it represents the testators true desires: if
the will is the product of insanity it cannot represent the testator’s wishes
2) A mentally incompetent man/woman is not defined as a “person” (not a
recognized legal entity and therefore cannot be allowed to bequeath
possessions)
3) Mental capacity is required in order to protect the decedent’s family. “Delayed
Reciprocity”: The idea that those people who took care of you should be
taken care of in your will.
4) Make it more difficult for someone to perpetuate a fraud
5) To a large extent public acceptance of law rests upon a belief that legal
institutions, including inheritance, are legitimate, and legitimacy cannot exist
unless decisions are reasoned. Thus, it’s important that the succession to
property be perceived as a responsible, reasoned act, according to the
survivors
6) Assures a sane person that the disposition that the person desires will be
carried out even though the person becomes insane and makes another will
7) Protects society at large from irrational acts
8) May protect a senile or incompetent testator from “exploitation” by cunning
persons
2. Test of Mental Capacity
Requirements for mental capacity are minimal: T only has to have the ability
to know
1) Nature & extent of his/her property
2) Persons who are the natural objects of his/her bounty
3) Disposition the testator is making
4) How these elements relate so as to form an orderly plan for the disposition of
the testator’s property (you have to understand what you are actually giving to
people)
Testator does not have to have average intelligence. T just has to understand
the seriousness and importance of what he’s doing
Estate of Wright (CA 1936), p. 163 – T engaged in very bizarre behavior. He tried give
a person fish soaked in kerosene to eat; he picked stuff out of the garbage and hid it in his
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house; he would hold his breath and appear to be dead in order to scare his neighbors; he
would not talk to his granddaughter when he saw her in the street; he’d leave abruptly in
the middle of dinner w/out explanation. Court stated the T’s will could be admitted to
probate bc he had the necessary testamentary capacity to write a will. Court stated that
“testamentary capacity cannot be destroyed by showing a few isolated acts, foibles,
idiosyncrasies, moral, or mental irregularities or departures from the norm unless they
directly bear upon and have influenced the testamentary act. . . There is no evidence he
didn’t appreciate his relations and obligations to others or that he was not mindful of the
property which he possessed.” This case illustrates the minimum requirements of mental
capacity
Note: Legal capacity to make a will requires greater mental competency than is required
for marriage
Estate of Park (1953, p. 165) – An old man suffering from cerebral
arteriosclerosis was deemed to have the requisite mental capacity to marry but
not the capacity to make a will even though he attempted to do both on the very
same day. Marriage alone will give the surviving spouse a share of the senile
spouse’s estate even though he has no capacity to devise it to her
Drafting a will for an incompetent person is a breach of professional ethics.
The lawyer, however, may rely on her own judgment regarding the client’s
capacity; she does not have to make an investigation of it
3. Insane Delusion
Insane delusion: If you’re operating under an insane delusion then you lack the
requisite mental capacity to write a will. Thus if the will you write is the product
of an insane delusion then it will not be admitted to probate and your property
will instead pass through the laws of intestacy
 Sometimes only the part of the will caused by the insane delusion fails.
If the entire will was caused by the insane delusion then the entire will
fails
What is an insane delusion? An insane delusion – which impairs testamentary
capacity – is one to which the testator adheres against all evidence and reason to
the contrary (i.e. – a false conception of reality)
What if there is some factual basis for the decedent’s belief?
1) Majority view: A delusion is insane even if there is some factual basis for it
if a rational person in the testator’s situation could not have drawn the
conclusion reached by the testator
2) Minority view: Some courts hold that if there any factual basis for the
testator’s delusion, it is deemed insane
In re Strittmater (NJ 1947), p. 159
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Facts: In her will, T bequeathed her estate to the National Women’s Party rather than to
her cousins (with whom she had very little to do). The cousins contested the will on the
basis that T’s will was the product of an insane delusion. There was also some suggestion
that T suffered from a split personality disorder. The cousins and experts testified that T
manifested her mental illness by her angry comments about her deceased parents, her
intense hatred of men, and her fervent support of the women’s movement. However, her
relationships with her bankers and lawyer were entirely normal. The probate court
admitted the will to probate and the cousins appealed
Issue: Was T’s will the product of an insane delusion?
Rule: If a will is a product of an insane delusion it will not be probated (If that happens
the decedent’s estate will pass by the laws of intestacy)
Held: T’s will was the product of an insane delusion and thus should not have been
admitted to probate
Rationale: It was her paranoiac condition especially her insane delusions about the male,
that lead her to leave her estate to the National Women’s Party
Criticisms: While there’s no doubt that T was eccentric, there doesn’t seem to be a lot of
evidence her that her hatred of men made her insane and that that insanity caused her to
leave her property to the National Women’s Party rather than to her distant cousins
▪ She did have a connection to this group – having been a member of it for 11 years.
Thus it seems that she certainly could have had a rational basis for leaving her money
to the National Women’s Party
▪ There also could have been some rationale reasons she hated men (rape, incest,
domineering father). Yet the court doesn’t spend any time looking at the
circumstances that could make a rationale person hate men. That, however, isn’t
necessarily the fault of the judges but this could be the product of bad lawyering
(judges decide cases on the evidence presented to them). Nonetheless, some of this
does seem to fall back on the judges since they can’t seem to fathom how any
rational person could hate males. Mindset of the judges may have an impact on case
Insane delusions often involve some false belief about a member of the
testator’s family
In re Honigman (NY 1960), p. 166
Facts: After 40 years of a reasonably happy marriage T began to believe that his wife (≈
70 years old) was unfaithful to him. T began accusing her of all sorts of unreasonable
acts, including hiding men in the basement and closets, having them climb up bed sheets
to reach their apartment. He prohibited her from answering the phone bc he believed that
male callers. His biggest suspicions centered around an anniversary card she received
that was not addressed to both of them. T died leaving a small life estate to his wife, the
remainder to his brothers and sisters. Wife moved to deny probate of the will alleging
that, as to her, T was operating under an insane delusion and lacked the mental capacity
to make a will
Issue: Was T operating under an insane delusion when he cut his wife out of the will?
Held: Jury was warranted in finding that there was no rationale or reasonable proof of
infidelity and that T was operating under a totally insane delusion as to his wife’s
conduct. The jury could have also found that the new will was a product of T’s insane
delusion. The probate court properly refused to probate the will
To deny probate to will on the basis of an insane delusion challenging party must
show
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1) Testator was suffering from an insane delusion: If have person whose
persistently believing presumed facts that have no basis except in his
imagination and he keeps believing this against all evidence and probability
then it’s likely that the person is suffering from an insane delusion
2) Will must the product of that insane delusion
Note: This case shows some of the problems you run into when you’re trying to
determine if a person is operating under an insane delusion
Beware: The court could have characterized T’s belief as a “MISTAKE” It
could have found that T made a mistake about what was going on here (his wife
wasn’t having an affair with the man, he was just a friend). Characterizing this as
a mistake could change the outcome
MISTAKE V. INSANE DELUSION
Courts often characterize the issue in way that gets them to the desired result
Realize that sometimes the only way that you can rationalize why the court found
“mistake” instead of “insane delusion” or vice versa is to look at the result the court
is reaching
INSANE DELUSION  Court will throw the will out (deny probate)
MISTAKE  Courts generally do not invalidate wills because of mistake. Some
courts try to reform the will if it determines that T made a mistake
UPC § 2-302(c) gives a child an intestate share where the testator
mistakenly believes that the child is dead
Ex: T believes that her son has been killed and therefore executes a will
leaving all her property to her daughter. In fact, the son is alive. T was
mistaken. The will is entitled to probate
Jury’s sense of fairness sometimes factors into why cases similar facts have
very different outcomes: Cases on very similar facts often have very different
outcomes. Many times it boils down to whether the jury perceives the distribution
to be a fair one. Thus in close cases the jury’s idea of fairness probably factors in
more than it should
B. Undue Influence
A will may be set aside if the court determines that there was undue influence
Undue influence: There is an influencer who is the position to persuade T to do
what the influencer wants instead what T wants (i.e. – the influencer coerces or
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persuades T to make the dispositions in the will in accordance with the
influencer’s wishes rather than testator’s wishes).
To set aside a will on the basis of undue influence the challenger must show
1) T was subject to undue influence
2) T would not have the distributions in the will as he did but for the undue
influence
3 Elements to look for when trying to determine whether there was undue
influence
1) The person exerts influence over the testator that is undue (Merely pleading,
cajoling, nagging, badgering T to make the will a certain way is not enough)
2) The influence turns T into a puppet (i.e. - the influence is so strong that it
subverts and overpowers the testator’s mind at the time the testator executes
the will)
3) The influence causes T to execute a will that T would not have signed but for
the undue influence
Bottom line: As a result of the influence, the will reflects the wishes of the
influencer, not the testator
If there is a finding of undue influence does the whole will necessary have to
be thrown out? No. If part of a will is the product of undue influence, those
portions of the will that are the product of undue influence may be stricken and
the remainder of the will allowed to stand if the invalid portions of the will can be
separated w/out defeating the testator’s intent or destroying the testamentary
scheme. (p. 183)
Where the Burden of Proof Falls Often Determines who will Win/Lose
Undue influence is often very difficult to prove. Rarely will a party have direct
evidence of undue influence. Most evidence of undue influence is circumstantial.
Most of the time, the party whom the presumptions favor is going to win
Lipper v. Weslow (TX 1963), p. 177
Facts: T was 81 yrs old. She was married 3 times. She had 3 children: Julian (1st
marriage), Frank and Irene (2nd marriage). Julian predeceased T; he was survived by his
wife and kids. Frank, an attorney, wrote his mother’s will. Will is executed 22 days
before her death – it left everything to Frank and Irene. It names Frank as the executor.
Will contains a no contest clause. Another clause in will contains long statement about
why Sophie didn’t leave Julian’s kids anything – basically stating that they didn’t care
about her and weren’t interested in her. Julian’s kids (Sophie’s grandchildren) contest the
will. Grandkids claim that Frank asserted undue influence over Sophie – presenting
evidence such that: he lived next door, he had a key to the house, and he didn’t read the
will with Sophie or discuss it with her before she signed it. Frank and Irene presented
evidence to counteract the undue influence claims: Sophie told friends and maid that she
wasn’t going to leave Julian’s kids anything, remarks about the cards, etc.
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Issues: Did Frank exert undue influence over Sophie? If so, are the provisions of the will
a product of that undue influence?
What do you need to establish undue influence? The court says that there are 4 things
a party must establish to prove that there was undue influence
(a) T was susceptible to undue influence or influence by another person
(b) Influener had an opportunity to assert his influence (i.e. – not vacating in Europe)
(c) Influencer exerts influence for his personal benefit (i.e. – if I whispering in
someone’s ear that they should leave all their money to the law school that wouldn’t
be undue influence bc it’s not benefiting me personally)
(d) The provisions in the will were unnatural & the product of the influener’s undue
influence (i.e. – the provisions reflect the distributions the influencer wanted; not the
distributions T wanted)  The court focuses on this element bc there was no
evidence that the will was a product of undue influence
Burden of proof: The grandkids basically have to show that that there is no way that
Sophie would have distributed her property in this way in a will but for Frank’s influence
– this is a very high if not impossible standard to meet
Held: No showing of undue influence here – the will should be admitted to probate
Rationale: There is no concrete proof here that Frank asserted undue influence only a
strong suspicion based on circumstantial evidence. While the disposition was unnatural
bc it wasn’t divided equally between Sophie’s 3 kids the will contains an explanation for
this disposition. Above all, the grandkids failed to show that the will substitutes Frank’s
will for Sophie’s. Sophie was strong willed and there is no clear indication that Sophie
would have made different distributions if another attorney had written the will. Thus the
grandkids failed to show that Sophie would not have written the will in this way but for
Frank’s influence.
Should you include the reasons you are not leaving a certain person anything
in the will? While it’s good idea to have info available about why your not
leaving a certain person anything in your will it’s not a good idea to include that
info in a will because: (1) A will is a public document - seeing such things about
them may provoke a person to contest a will, and (2) “Testamentary liable” – It
usually doesn’t’ take much to convince a jury that there is liable in a case.
If not in the will, where should you put this info?
(1) Put reasons you are not leaving anything to certain person in letter
reference in a will: A better course of action would be to put these reasons in
a letter and then reference that letter the will – that way the letter itself won’t
be a public document out there for everyone to see.
(2) If T insists upon putting reasons in will then make sure
▪
If you can’t persuade a client not to include the reasons in the will then
make sure that the statements are absolutely correct (i.e. – Sophie was
wrong the flowers, such mistakes could persuade a jury that the other
reasons T gave weren’t true and that undue influence was being asserted
upon her)
▪
Statements are in the client’s language (i.e. using the testator’s own
words). You want her reasons to come across as her reasons.
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Note: Often you see undue influence occurring where there is some kind of
confidential relationship between the parties but that there does not have be such
relationship to make an undue influence claim
Note: A rule if often applied that where (1) a person in a confidential relationship (2) receives the
bulk of the testator’s property (3) from the testator of weakened intellect, the burden of proof
shifts to the person occupying the confidential relationship to prove affirmatively the absence of
undue influence. In several jurisdictions, there must be the additional evidence that the beneficiary
was active in procuring the execution of the will (p. 183)
No-Contest Clauses
No-Contest Clause: Provides that a beneficiary who contests the will
shall take nothing, or a token amount, in lieu of the provision made for the
beneficiary in the will. A no-contest clause is designed to discourage will
contests (p. 184)
Majority view: The majority of courts enforce a no-contest clause unless
there is probable cause for the contest
Minority view: In a minority of jurisdictions, courts enforce no-contest
clauses unless the contestant alleges forgery or subsequent revocation by a
later will or codicil, or the beneficiary is contesting a provision benefiting
the drafter of the will or any witnesses thereto. These jurisdictions believe
a probable cause rule encourages litigation and shifts the balance unduly
in the favor of the contestants
Key Point: The lawyer with a client who wishes to contest a will with a
no-contest clause must investigate the local law carefully because there are
subtle differences from state to state, particularly as to what constitutes a
“contest”
Note: In Lipper v. Weslow Frank’s inclusion of a “no-contest” clause in
Sophie’s will was completely pointless. Under Sophie’s will the
grandchildren were not going to receive anything. Because they were not
going to receive anything they had nothing to lose by contesting the will.
Bequests to Attorneys
Attorney-drafter who is a beneficiary under the will:. Many courts
have ruled that a presumption of undue influence arises when an attorneydrafter receives a legacy, except when the attorney is related to the
testator. The presumption can be rebutted only by clear and convincing
evidence provided by the attorney.. The ABA Modern rules of
Professional Conduct strongly recommend that where a client wishes to
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name his attorney as a beneficiary, the attorney should refer the client to
another disinterested attorney for the preparation of the will
Bottom line: It’s better to have your relatives who want to leave you a
bequest to go to another lawyer to have it drafted to avoid any appearance
of impropriety. To be a beneficiary under a client’s will, you must send
the client to a disinterested attorney or the court will presume that you
have asserted undue influence over the client.
Lipper v. Weslow Sophie’s son, an attorney, drafted her will. Frank was a
principal beneficiary under the will. Here the outcome of the case may have been
different if the burden of proof had been on the attorney (Frank) who benefited
from the will to show that there was no undue influence
In re Will of Moses (Mississippi 1969), p. 188
Facts: Fannie (T) leaves all her estate to boyfriend-lawyer). C was 15
years younger than T. T suffered from heart trouble, had a breast removed
due to cancer, and was an alcoholic during the duration of the ≈ 3 yr
relationship. T has another attorney draft her will in which she left
everything to C. The attorney had no connection to C, and T did not tell C
about the will or her intentions to leave her estate to him. T’s sister
contests the will on the grounds that C asserted undue influence over T.
Issue: Did C assert undue influence over T and were the distributions she
made in her will a product of that undue influence?
Held: Will was the product of undue influence
Note: To avoid the result, Fannie could have left the money to C before he died
by setting up an inter vivos trust. By setting up the trust, she could have the
benefit of the trust during here lifetime and it would go to C upon her death. If
you set up an inter vivos trust during your life, your relatives are going to be
much less likely to challenge the set up on the basis of incapacity after your
death. If you manage the trust during your life it’s going to be difficult for your
relatives to show that you lacked capacity. Courts are much less likely to set
aside an inter vivos trust bc they don’t like undo all the transactions involved.
Because of this, in the close case, the court is going to be most likely to rule that
the decedent had the capacity to make the trust
Criticism: T and C had a fairly long-standing relationship. C knew nothing about
the will and doesn’t seem to have had any influence on the distributions made in
the will. These things taken together, the result the court reached doesn’t seem
merited. Seems to be some gender bias in this decision (i.e. – C is fortune seeker
and T was desperate woman). It seems highly probable that the court didn’t like
the age difference and didn’t like the fact that they weren’t married. In short, the
court seems to think that there is no legitimate reason that C should get the
money and so they turn it into an undue influence situation – this is a troubling
aspect of the decision
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In re Lauinus (Miss. 1987): Sexual relationship between male testator and
young female beneficiary did not give rise to confidential relationship
because the testator was “strong-willed” and emotionally and physically
sound at the time the will was executed (p. 192)
In re Kaufmann’s Will (NY 1965), p. 193
Facts: Robert (rich by inheritance) lived with another man Walter for 10
years. Robert made a series of wills starting in 1951. In 1951 R also wrote
a letter to his family explaining his relationship with Walter and why he
was leaving prop/$ to him in the will. The 1951 letter passed along with
each subsequent will. Each will increased Walter’s share of the estate. R’s
final will was drafted in 1958 – it left substantially all his property to
Walter. R died in 1959. R’s family contested the will on the grounds that
W asserted undue influence over R and that the will was product of that
undue influences.
Held: Robert’s will was the product of undue influence
Note: Although the earlier wills were not directly in issue, the majority thought
that undue influence began before 1951 and tainted all the prior wills and gifts to
Walters. It seems the only way the court would have accepted that Walter wasn’t
exerting undue influence over Robert when Robert wrote the will was if the
relationship between the two ended before Robert wrote the will
Note: The court didn’t’ seem too receptive to any arguments on Walter’s behalf
this could have been because of (1) the judges were bias against homosexual
relationships, and/or (2) the judges perceived Walter to be a liar whereas in
denied sexual relationship existed between he and Robert, refused to take the
stand, Robert’s letter flatly contradicted his denial
Note: There are cases that have very similar facts where courts have found that
there wasn’t any undue influence
HYPO: Suppose that you were Walter’s attorney but it’s now 2001. Your client
is a beneficiary of a will made by his homosexual partner but really doesn’t want
to get out on the stand and admit it because doing so will have negative
repercussions on his life (i.e. – he’s in the military, minister, he’ll lose custody
of his children). What can you do to avoid the result we had in this case?
- Tell your client not to lie. Even if the client really doesn’t want to admit it,
the last thing he should do is lie about the relationship bc that will not help
his cause (won’t be seen as a credible witness but as liar)
- You can certainly try to prevent the question from arising. You can try to
make the argument that the relationship between the two is totally irrelevant
__________________________________
Conflict of Interest: Prohibited Transactions (ABA Rules of Profess. Conduct)
A lawyer shall not prepare an instrument giving the lawyer or person related to
the lawyer as parent, child, sibling, or spouse any substantial gift from a client,
including a testamentary gift, except where the client is related to the donee (p.
187)
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Comment: A lawyer may accept a gift from a client, if the transaction meets
general standards of fairness. For example, a simple gift such as a present given
at a holiday or as a token of appreciation is permitted. If effectuation of a
substantial gift requires preparing a legal instrument such as a will or
conveyance, however, the client should have the detached advice that another
lawyer can provide. Paragraph (c) recognizes an exception where the client is
relative of the donee or the gift is not substantial (p. 187)
An Exercise in Lawyering: Seward Johnson’s Estate (pp. 197-213)
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A situation where everything that could go wrong does
There are all kinds of mistakes made by the attorneys and the parties in this case
They go through making will after will after will
Through the course of all of this his new wife is getting increasingly larger shares of the estate
at the expense of the adult children. He was rich; hooked up with a new young wife
The attorneys at this firm didn’t anticipate a will contest; that is simply amazing. No one
thought about it until Seward asked if there might be a will contest
The big problem that they had was that by the time Seward realized that his children might
not be too happy his health was failing
They were running into problems about dealing with how to document that he wants to
disinherit his kids and leave everything to his wife w/out running into capacity issues
Want to put the client’s own words into the will. How are you going to go about doing that?
Seward wasn’t in a position where he could sit down and write a letter about why he doesn’t
want to leave everything to his kids. He is frail and looks to be in a position where his
attorney or wife his manipulating it
He didn’t even look that great so you couldn’t even video tape it
But the attorney could have gone to Florida with a stenographer, sign the statement, have
witnesses attesting to his mental condition. That would have gone long way towards fighting a
will contest but they didn’t do anything towards doing anything like that
By the time that this gets to court the law firm just looks totally incompetent. Many of the
things do don’t look responsible from a legal stand point
Need some evidence to counter-act the children’s claims. You need something for the jury to
decide. They way it stood there just wasn’t very much on his side: just his attorneys and his
wife (who didn’t come across as very credible)
The other thing they could have done is to put in a no contest clause. They decided that that
wouldn’t make a difference to the kids and that probably was a reasonable decision
The kids wanted everything
The other thing that this scenario illustrates is the problem that you have when you have a
client whose health is failing and you keep executing new wills. Once Seward’s health began
to fail they wrote a new will that scrapped all the previous wills that creates big problems
If you have a situation where you don’t have capacity to write a will (making all other wills
invalid) and that will gets challenged then that will gets tossed out and things will pass bylaws of intestacy
What they really should have done here execute a codicil that makes the changes. Then if it
turns out that if you don’t have the capacity to execute that codicil then you still have that will
you had before you wrote the will . The worst that can happen in other words is that the
amendments can be thrown out. That will be closer to your intent then the laws of intestacy
When someone’s will makes sense it makes sense to keep on executing codicils
The other thing that ended up backfiring in the attorney’s face is the letter. Seward gave his
wife power of appointment. But he gave her that power and then she turns around writing him
a letter promising that she won’t execute it. That’s fine but during the course of the
proceedings in
Attorney admits that she has no clue if the letter is legally valid. This didn’t do much for the
attorney’s credibility
What’s the point of the letter? If didn’t want her to have the power of attorney in the first
place – it just makes everyone looks foolish
By this letter it looks like she is saying no thank you I don’t want the power of appointment
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The actions of the attorney in this case
- It’s common practice to have attorney to draft and witness will that names that attorney as
executor of the estate
- It’s not improper so long as the attorney has advised the client about possible conflict of interest,
and the client says I don’t care I wasn’t you. It’s perfectly ok for the lawyer to do that
- But it doesn’t appear that Nina (lawyer) did those things
- Need to talk to client about fiduciaries and tell client about different options (bank, family, friends,
business associate) to have as a trustee
- Should make client aware that having attorney as trustee is no the client’s only option
- You shouldn’t suggest that your client name you as the trustee. That decision should be made by
the client not by you (because lots of money to be made in it)
- Nina didn’t do anything wrong in drafting the will but she didn’t disclose all of the appropriate
information to Seward: First, she should have disclosed how much money was going to be coming
into the law firm (here possibility for a lot of money coming into the firm and it seemed like
Seward wanted that to happen). She should have talked to him about it and should have made
some sort of record of that conservation that she advised him and that he decided. He probably
wanted the firm to have the money so they should have talked about. So the appearance of
impropriety is there
- The one thing she shouldn’t have done is not to increase the executive fees to the highest amount
allowed by law
The other thing that this case illustrates is that it’s pretty common for one couple to have one
attorney to do estate planning for both. There really isn’t any problem or conflict of interest. The
only time that you really end up with some sort of problem is if one of them has a secret that they
are not sharing with each other (i.e. – one has a child from another marriage that the other doesn’t
know about). Here it does not’ seem like the couples had any secrets
The problem in this case, is that when Seward’s health begins to fail, Basia and Nina start doing
all the communicating. On cross-examination it really seems as though the Nina was doing
something improper because got no real check on the matter from Seward
C. Fraud
Rule: A provision in will procured by fraud is invalid. The remaining portions of
the will stands unless the fraud goes to the entire will or the portions invalidated
by fraud are inseparable from the rest of the will
Test for Fraud: Fraud occurs where T is deceived by a misrepresentation and
does that which T would not have done had the misrepresentation not been made
1. Misrepresentation
2. Intent of the person making the misrepresentation is to deceive the testator
3. Makes the misrepresentation for the purpose of influencing the testamentary
disposition
Two Types of Fraud
1. Fraud in the Inducement: Occurs when a person misrepresents facts,
thereby causing T to execute a will, to include/exclude particular provisions in
the will
Ex: O’s heir apparent (H) induces O not to execute a will in favor of Z by
promising O that H will convey the property to Z. At the time, H makes the
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promise, H has no intent to convey the property to Z. This is fraud in the
inducement
Ex: O’s heir apparent (H) induces O not to execute a will in favor of Z by
promising O that H will convey the property to Z. At the time he makes the
promise, H has intends to convey the property to Z. But H changes his mind after
O’s death and refuses to convey the land to Z. There is no fraud involved in this
situation
Establishing fraud in the inducement is difficult
▪
Misrepresenter’s intent at the time of representation: When
determining whether there is fraud in the inducement, you look at the
misrepresenter’s intent at the time they made the misrepresentation –
he has to have influenced the disposition at the time he made the
misrepresentation. Proving the misrepresenter’s intent at that particular
point of time is difficult.
▪
Proving misrepresentor’s purpose in making the
misrepresentation is difficult: Proving that the misrepresenter made
the misrepresentation for the purpose of influencing the testamentary
disposition can also be quite difficult
Beware: You can have a problem establishing fraud where there is a
fraudulent and non-fraudulent (legitimate) reason that might explain the
bequest
Ex: H and W get married. W immediately executes a will leaving
everything to her husband. The only reason H proposed marriage was to
get W’s money. Can you show that there was a fraud here?
The longer the marriage goes on, the more difficult it will be to
prove that H committed a fraud, especially where W also had a
legitimate reason for executing a will (i.e. – to change it so that it
includes her spouse)
2. Fraud in the Execution: Occurs when a person misrepresents the character or
contents of the instrument singed by T, which does not in fact carry out the
testators intent
Ex. O, with poor eyesight, asks her heir apparent (H) to bring her the document
prepared for her as a will so that she can sign it. H bring O a document that is not
O’s intended will. This is fraud in the execution
Note: To establish fraud in the execution you still have to establish the 3
elements, but generally they tend to be easier to establish in this context
Caution: A fraudulently procured inheritance or bequest is invalid only if T
would not have left the inheritance or made the bequest had the testator known
the true facts. The issue this creates is: What would the testator have done if the
true facts were known?
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What happens when the probate court cannot do justice by refusing
probate?
The will may be probated and then a court with equity powers (not the probate
court) can impose a constructive trust on the wrongdoer, compelling the
wrongdoer to surrender the property acquired by the wrongful conduct (Normally
this is the situation where the person who perpetuated the fraud is the same person who will take if
the prop passes through the laws of intestacy)
Ex: Woman have 4 kids, one of whom is incompetent (Z). X promises to care
for the incompetent child Z upon the mother’s death. Mother leaves ½ her estate
to X (caregiver) and ¼ to the other 2 kids, leaving nothing for the incompetent
child. After the mother dies, X refuses to give a portion of the money to Z. What
would happen in these circumstances if the court denies probate? The assets
will be distributed by the laws of intestacy. That’s not going to help in this
situation bc it’s not going to get the care Z needs. So this is another situation
where it might make sense to probate the will and let Z’s guardian try to get a
constructive trust imposed for Z (thereby achieving the intent of the testator)
PROBLEM (p. 215): T’s first will devised everything to her favorite niece
Jean, who lived in a distant city. T’s second will executed in the hospital two days
before she died, revoked her prior will and devised everything to her friend,
Carol. After T’s death a nurse in the hospital testifies that the day before the will
was executed he heard Carol tell T that Jean had died. “In that case,” T said, “I
want you [Carol] to have everything.” In fact, Carol knew that Jean was alive.
Has Carol committed a fraud here?
▪
It’s important to know whether Carol knew the contents of the first will. If she
did know about the first will the statement seems to have been made to induce
T to make the change. So long as we can prove the 3 elements we might be
able to prove that there was fraud in the inducement here
▪
If Carol had no idea about the distribution in the first will (i.e. – that
everything was left to Jean) then there wouldn’t be fraud here
▪
To truly answer this question we would need more facts
When can a constructive trust come into play?
1) Constructive trust is often used to rectify a fraud
2) Constructive trust may be imposed where no fraud is involved but the court
thinks that unjust enrichment would result if the person retained the property
(p. 220)
“A constructive trust is the formula through which the conscience of equity finds expression.
When property has been acquired in such circumstances that the holder of the legal title may
not in good conscience retain the beneficial interest, equity converts him into a trustee.” (p.
220)
Latham v. Father Devine(NY 1949), p. 215
Facts: Mary executes a will in 1943 leaving almost all her estate to Father
Devine. Mary’s cousins allege that T expressed her intention to alter her will so as
to bequeath a substantial amount of property to them. Cousins allege that she had
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been prevented from altering her will by the fraud, undue influence, and physical
force by Devine’s flunkies. Cousins requested that constructive trust in their
favor be imposed on the proceeds of the will to the extent of the prop that would
otherwise have gone to them had T not been prevented from executing a new will.
The cousins arg that they are the intended legatees
Significance: This is the first time that the court has ever applied a constructive
trust in this situation
Note: That under the laws of intestacy the cousins were not entitled to take. It’s for that
reason that they don’t want the court to toss the will out. The only way that the cousins
will get anything is court orders that a constructive trust be set up
Note: That this case is very early procedurally so we don’t really have any clear
indication of the result or holding. The only thing we have here is a determination by the
court of the appeals that they can state a claim for fraud and thus survive a motion to
dismiss
Note: Observe that if, in Latham, a constructive trust were to be imposed on Father
Devine’s churches the court would in effect be distributing property according to a
completely unexecuted will, a will that Mary Lyon might have never have signed
Tortious Interference with Expectancy
Under this theory, P must prove that the interference involved conduct tortious in itself,
such as fraud, duress, or undue influence. A tort action for tortious interference with an
expectancy is not a will contest. It does not challenge the probate or validity of the will
but rather seeks to recover tort damages from a 3rd party for tortious interference. The
action is not subject to the typically short state SOL on will contests, but the tort SOL
starts running on the action at the time P discovered or should have discovered the fraud
or undue influence. Most courts require P to pursue probate remedies first, if they are
adequate and failure to do so may result in barring a tortious interference suit. Punitive
damages may be recovered against the wrongdoer in a suit in tort but not in a suit seeking
to prevent probate of a will on the ground of undue influence or fraud
PROBLEM (p. 222): The will beneficiary sues the witnesses of a will for tortious
interference with an inheritance. The beneficiary contends that the witnesses
falsely testified that the testator’s signature was not on the will when they
witnessed it. Should the beneficiaries be able to sue the witnesses under a theory
of tortious interference? If the court were to allow that cause of action, how easy
would it be to get a witness?
- You could have problem getting witnesses if being a witnesses leaves
them open to legal action
- Witnesses need some kind of protection
- Everyone has an interest in finding out exactly what happened during
the execution of the will and opening up the witnesses to legal action
will certainly work against that goal
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CHP 4. WILLS: FORMALITIES & FORMS
A. EXECUTION OF WILLS
Basic premise: Wills have to be duly executed in order to be valid. Certain formalities
have to be complies with in order to duly execute a will. If you comply with all the
requisite formalities then your will should be valid and admitted to probate
Functions these formalities play:
1) Ritual function: Make sure that T understands that this is something that’s really
serious – that this is what he really wants to do. The amount of ceremony involved in
executing will impresses upon a testator that he is doing something quite serious.
Provides the court with a convincing statement that T’s statements were deliberately
intended to effectuate a transfer
2) Evidentiary function: The formalities may increase the reliability of the proof
presented to the court. Wills are often made many years before the testator’s death,
finding someone to give reliable testimony is likely to be a big challenge – if you
comply with all the formalities you probably won’t really need reliable testimony bc
the formalities supply satisfactory evidence of T’s intent to the court
3) Protective function: Having to go through all these steps protects T from undue
influence and other forms of imposition at the time the will is executed. This function
isn’t as critical now – it was really designed to deal with the situation where people
were making their wills on their death beds
4) Channeling function: Create a safeharbor, which provide T with assurance that his
wishes will be carried out
1. Attested Wills
UPC § 2-502(a) Execution; Witnessed Wills (p. 226)
A will must be
1. in writing
2. signed by T or in T’s name by some other individual in T’s conscious
presence and by T’s direction
3. signed by 2 people each of whom signed within a reasonable time after
i)
witnessing the signing of the will, or
ii)
witnessing T’s acknowledgment of his signature, or
iii)
witnessing T’s acknowledgment of the will
 According to UPC everything doesn’t have to happen at the same time
In re Groffman (England, 1968), p. 227
Facts: T signed his will at his lawyer’s office and then went to a dinner party at a friend’s
house. There he asked the 2 friends to sign his will. Because the table was full of plates,
T went into another room to sign it. Witness # 1 signs in T’s presence but not in the
presence of Witness # 2. Witness # 2 signs in T’s presence but not in the presence of
Witness # 1. T did not sign in front of either Witness # 1 or Witness # 2 having signed in
the lawyer’s office. T’s wife challenged the validity of the will on the ground that it had
not been executed properly. Under the will T left house and chattels to wife for life,
remainder going to his two children from a previous marriage. If the will is thrown out
the wife will get everything under the laws of intestacy
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Statute: No will shall be valid unless it shall be in writing and executed in a manner hereinafter
mentioned: it shall be signed at the foot or end thereof by T, or by some other person in his
presence and by his direction; and such signature shall be made or acknowledged by T in the
presence of 2 or more witnesses present at the same time, and such witnesses shall attest and shall
subscribe the will in the presence of , but no form of attestation shall be necessary
Held: T did not sign or acknowledge the will in the presence of both witnesses at the
same time. The will must, therefore, be denied probate
Note: This is really an extreme example (logically it looks like a ridiculous outcome) but
it shows the kinds of problems that you can run into if you don’t know what formalities
the statute in your jurisdiction requires
Q: How would this case have come out under UPC § 2-502?
Under UPC § 2-502(a)(3) the witnesses signed within a reasonable time after T
acknowledged his signature. Under the UPC, the witnesses don’t need to see T sign the
will it’s enough for T to acknowledge his signature by saying “this is my will, please
witness it.”
Q: Did the attorney commit malpractice by letting T go out the door w/out properly
executing his will? It doesn’t seem like it. If the attorney just let him walk out the door
that probably isn’t good enough. If you’re in jurisdiction like this where you have a very
picky statute like this one you should tell the client exactly what needs to be done –
making a list of what needs to be done would be best. If you do all that and they still
mess up there is nothing you can do (i.e. – you can’t tie them down to a table and make
them sign it there). At the very minimum you have to try to impress upon them the
seriousness of failing to comply with the requirements are. To do less than that is
unreasonable especially when you’re looking at the seriousness of the consequences that
come with not complying with the requisite formalities. Real problem here was that the
statute they had to work with was a lot more restrictive than the UPC
PRESENCE
What does in the “presence” of the Testator mean? Its meaning varies
jurisdiction to jurisdiction (p. 233)
1. Line of sight test: In some jurisdictions the requirement that witnesses sign in
the presence of the testator is satisfied only if T is capable of seeing the
witnesses in the act of signing. T does not actually have to see the witnesses
sign but must be able to see them were he/she to look. An exception is made
for blind people
2. Conscious presence test: Under this test the witness is the presence of T if T,
through sight, hearing, or general consciousness of event, comprehends that
the witness is in the act of signing. This can lead to a lot of questions
especially with the rise of new technologies (i.e. - would a televised
conference call meet this requirement?)
3. UPC § 2-502(a) dispenses altogether with the requirement that the witness
sign in T’s presence. Courts, however, have read the “presence” requirement
into the UPC
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HYPO: T’s attorney takes T’s will to T’s home, where T signs the will and the attorney
attests as a witness. The attorney returns to her office with the will and the attorney
attests as a witness. The attorney returns to her office with the will and has her secretary
call T on the phone. By phone, T requests the secretary to witness his will; the attorney
signs as an attesting witness. Can the will be probated? Why wouldn’t this be proper,
what’s the problem here?
- Fails conscious presence test: T doesn’t have any awareness or knowledge
that the secretary is actually signing the will so that would not satisfy the
conscious presence test
- Fails line of sight test: The line of sight test also would not be satisfied here
bc T is not able to see the secretary signing if he were to look
- UPC § 2-502(a) unclear. The UPC does not require that the witnesses sign in
T’s presence. Courts, however, have read the “presence requirement” into the
UPC
Weber’s Estate (Kansas 1963), p. 234  Line of sight test
Facts: Depositor, seriously ill, drives to the bank’s drive-in teller window. The president
takes the will to the depositor’s car, where the depositor signs the will propped up on his
steering wheel. The bank teller, seated at a teller’s window overlooking the car, watches
the depositor sign. The president signs as a witness in the car, then takes the will inside
the teller’s office where the teller, sitting in the window, signs as a witness and waves to
the depositor. The president then takes the will outside and shows it to the depositor who
asks the president to keep it
Issue: Has the teller signed as a witness in the presence of the testator?
Held: No, because through T could see the teller, T could not see the pen and will on T’s
desk as the teller signed
In re Colling (1972), p. 234
Facts: T, a few days before his death, in the hospital made a will. He started to write his
signature in the presence of 2 witnesses – a patient in the bed next to him and a nurse. In
the middle of signing, the nurse had to leave the room to attend another patient. T
completed his signature in the nurse’s absence. The nurse then returned. Both T and
other patient acknowledged their signatures to her, and then she signed as a 2nd witness
Held: The will may not be probated because the signature was not sufficient. The
signature wasn’t sufficient because T did not complete his signature while both witnesses
were present. The later acknowledgment doesn’t suffice bc T must sign or acknowledge
his signature before either of the witnesses attest
In re Estate of Wait (Tenn. 1957), p. 234: T, old and feeble, was unable to complete her
signature bc her hand was shaking, until after the witnesses left. The court denied the will
probate
SIGNATURE
Signature Requirement: T must sign his will in order for it to be valid. What
will satisfy the signature requirement? So long as you sign your name as you
customarily do, the signature requirement will be satisfied.
Examples
▪
If you sign your name with an “X” if that’s the way that you ordinarily sign it
or you’re too weak to sign it in another way or you’re illiterate that will be
valid
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▪
If you always sign your nickname and do so on your will that will be
acceptable as your signature
What if somebody helps T sign his name bc he has trouble holding the pen?
Should T’s will be admitted to probate? It depends on whether T asked for help. If
T didn’t ask for help then the court will probably deny probate on the ground that
if T didn’t ask for help it’s not clear that he really wanted to sign his name. If T
did has for help then the court may grant probate on the ground that T made it
clear that he did really want to sign his name
EDITING THE WILL (i.e. – additions after signature)
Issue: Can you edit your will after singing it, such as by adding a P.S. section
below your signature? It depends
Views additions below the signature line to Traditional Wills
1. Some jurisdictions require that the testator sign the will “at the foot or end
thereof
2. Other jurisdictions are more liberal and will take a look at what T wrote down
there. If what you have written does not dispose of property (i.e. – I name
Peter my executor) then some courts will allow the will to go to probate
3. NY courts don’t give effect to anything below the signature line
Key point: Need to emphasize to your client that it’s not a good idea to make
changes to their will (i.e. – by adding a PS or some such thing). Client should
execute a codicil or a new will but not try to edit the will, bc if they do try to edit
the court may deny probate.
Note: If the jurisdiction recognizes holographic wills the results may be different
here
VIDEOTAPING YOUR WILL
In jurisdictions where there is no requirement that the will be in writing, some
courts permit Ts to make their bequests in a videotape. The vast majority of
courts, however, are not very receptive to videotaping because the vast majority
of jurisdictions require wills to be in writing
What are some of the args against using video taping, even in jurisdictions that
don’t require wills to be in writing
- People tend to make their wording choices more carefully when they
put things in writing then when they are saying them orally. If you
have to write something down you are more likely to put more thought
into it
- Possibility for technological problems
- Judges are lawyers and tend to see wills as the turf for attorneys, any
one can make a video tape
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-
In some instances, videotape will indicate that T didn’t have the
capacity to function
PURGING STATUTES
VARIATIONS OF PURGING STATUTES (p. 241)
1. If witness is interested, he/she may not witness the will. If he/she does witness
the will is invalid unless it is signed by 2 other disinterested parties. Because
will is invalid, witness gets no bequest. (California - Estate of Parsons)
2. You can get your bequest so long as you’re not getting an additional benefit
from witnessing the will (extra benefit)
3. Mass.: Voids any devise to an attesting witness. Will still valid
4. UPC § 2-505 does not have a purging statute: It does not require that the
witnesses be disinterested (i.e. – you can be a beneficiary under the will)
UPC § 2-505 (p. 241)
(a) Any person generally competent to be a witness may act as a witness
to a will
(b) A will or any provision thereof is not invalid because the will is signed
by an interested party
What’s the purpose behind the purging statutes? The thought is that if there is
some problem with the execution of the will, you beneficiary/witness are going to
view the execution ceremony with rose colored glasses because you are going to
want to get your bequest
Estate of Parsons (CA 1980), p. 236
Facts: T executed her will. 3 people signed the will as attesting witnesses: E, M, and B.
Two of the witnesses, E and M were named as beneficiaries in the will. In the will, E was
to get $100 and M was to get real property. After T died, E filed a disclaimer of her $100
bequest. T’s heirs then claimed an interest in the estate on the ground that the devise to M
was invalid based on a provision of the probate code which said that a gift to a
subscribing witness is void “unless there are 2 other and disinterested subscribing
witnesses to the will.” The heirs arg that even though E disclaimed her bequest after
subscribing the will that the “subsequent disclaimer is ineffective to transform an
interested witness into an interested one.” The heirs arg that bc there was only one
disinterested witness at the time of attestation, the devise to M was void because the will
was invalid
Held: The will was invalid because it was not signed by two disinterested parities at the
time of attestation/signing. E cannot disclaim because there was not a valid will under
which she was a beneficiary. You cannot disclaim if you do have anything to disclaim
Key point: Disclaimer not enough to qualify party as a disinterested party
HYPO: Suppose that in Will # 1 T devised real property to Marie worth $50,000;
Marie did not witness Will # 1. In Will # 2, T bequeathed Marie stock worth
$70,000. What result?
HYPO: Suppose that in Will #1 T gave Marie $70,000 worth of stock. In Will # 2
T gives Marie $50,000 worth of stock. What result?
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SAFEGUARDING A WILL
Issue: What should be done with the client’s will after it has been executed?
Options
1) Give will to client & instruct client to put it in a safe place where someone
else can find it when he/she dies (i.e. – safety deposit box that somebody
knows about)
Advantages: Most courts look favorably upon the practice of having the
client safe-guard the will
Disadvantages: It could got lost or put in place where no one is able to
find it after T’s death. Client could decide to make editorial changes and
thereby invalidate it
Precautions: Read the client the “riot act” telling him/her that the
consequence of making editorial changes to the will could be to invalidate
it
2) Attorney keeps will in his/her files
Advantages: Less likely to get lost, safe-guarded from editorial changes
Disadvantages: Some courts look down on the practice of the attorney
safeguarding the will because they feel that the practice gives T’s family
no choice but to hire that lawyer to handle the estate (i.e. – Wisconsin)
MISTAKES MADE IN EXECUTING THE WILL
(A) Traditional View: Courts do not correct mistakes in wills
In re Pavlinko’s Estate (PA 1959), p. 247
Facts: H & W spoke very little English found. An attorney prepared reciprocal
wills for them – the residuary clause being essentially the same in both wills
(leaving everything to W’s brother in the case both spouses are dead). H
accidentally signed W’s will; W accidentally signed H’s will. W dies first but her
will never gets probated so no one discovers the mistake until H dies. W’s
brother admitted will H signed (W’s will) to probate. Court denies probate on
the basis bc H is not W. Under the laws of intestacy the proper is to pass to H’s
heirs
Issue: Can the court fix the mistakes (i.e. – switch the names around in the will)
and thereby allow the will to be admitted to probate?
Rule: A court may not rewrite a clear an unambiguous will for the purpose of
implementing the obvious intentions of the testator
Held: Court denies probate because H is not W
Rationale: The will H signed leaves the entire estate to him. In order to award the
property to W’s brother as residuary legatee, it would be necessary to rewrite
virtually the entire instrument and such a procedure cannot be countenanced in
the case of a will so totally lacking in ambiguity. The will H signed cannot be
admitted to probate as his will. The will which was prepared for H cannot be
admitted to probate because H never signed it. Court gives a slippery-slope kind
of argument – saying that once a court starts to alter, rewrite, or make
exceptions to the lang in will that is clear then the Wills Act goes right out the
window
Dissent: Dissent says the court should focus on what’s really going on the two
wills. He says that if you look at all of the provisions of the will were the mix-up
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occurred weren’t going to be probated. The only provision applicable in this
instance was the residuary clause, which was the same in both wills. He says the
court should give effect to the will in these limited circumstances (reciprocal
wills that were mixed-up that have identical residuary clauses). He says this
won’t be opening up Pandora’s Box
In re Snide (NY 1981), p. 251
Facts: H and W made reciprocal wills. H and W mistakenly signed the will
intended for the other. H died first
Issue: Can the court correct the mistake so that the will can be admitted to
probate?
Held: Yes. The court can correct the mistakes on the reciprocal wills so that the
will can be admitted to probate
Order: Ordered the instrument signed by the husband admitted to probate and
reformed by substituting H’s name wherever W’s name appeared
Rationale: Court emphasized that when you have reciprocal wills you have two
parts to one comprehensive estate plan
Key point: Just because one jurisdiction will refuse to probate one of reciprocal
will signed by the wrong spouse, doesn’t mean that they all will
Note: There are more and more cases where courts are correcting mistakes that
could result in estate taxation problems (double taxation). So we might see more
of a willingness on behalf of the courts to correct “scriveners errors”
Q: What recourse do you have if your W’s brother?
You can sue the attorney for malpractice. Under these circumstances the
attorney probably would be found liable
Q: Is suing the attorney for malpractice a better result for W’s brother than
having the court correct the will?
▪
From W’s brother’s standpoint you would want the court to fix the
mistake and admit the will to probate. You will have to pay attorney’s
fees so you won’t get the whole amount that you’re entitled to get under
the will. But if the court doesn’t admit the will to probate you don’t get
anything bc you’re not entitled to take under the laws of intestacy
▪
The attorney who wrote the will could be judgment proof.
▪
Depending upon what you’re supposed to get under the will (i.e. – the
family home), you’re not going to be able to replace that with an award
you get from a malpractice suit
HYPO: Suppose that after W died, the lawyer-drafter discovered the wrong wills
had been signed. H was then incompetent. The lawyer photocopied the signature
of H on the will prepared for W, superimposed it on the will prepared for H, and
photocopied the document. Can the photocopied doc be probated? Is this attempt
to fix the mistake ethical?
This is unethical conduct. It’s better to throw yourself upon the mercy of
the court and beg it to see your side, then to correct the mistake. You
don’t want to take things into your own hands
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(B) Modern Views
DOCTRINE OF SUBSTANTIAL COMPLIANCE: A will may be admitted to probate
if it substantially complies with the formality requirements. When formal defects
occur, proponents should prove by clear and convincing evidence that the will
substantially complies with statutory requirements
Substantial Compliance Test: Is there any defect that’s so substantial that it
should prevent the will from being probated? Or does the will, despite the defect,
substantially comply with the formality requirements?
In re Will of Ranney (NJ 1991), p. 252
Facts: T signed his will in his attorney’s office, in the presence of another lawyer
and a secretary. The witnesses did not sign the will itself. Instead they signed a
self-proving affidavit attached to the will (i.e. – looked like the last page of the
will). Both witnesses believed that they were signing and attesting the will and
both attorneys believed that the signatures on the affidavit complied with the
statutory requirements. The affidavit refers to the execution of the wills in the
past tense and incorrectly states that the witnesses had already signed the will.
After T died, T’s wife contested the will on the ground that it failed to comply
with the formality requirements (that the will be signed by the witnesses)
Rule: A will may be admitted to probate if it substantially complies with the
formality requirements. Substantial compliance is a functional rule designed to
cure the inequity caused by the “harsh and relentless formalism” of the law of
wills. The underlying rationale is that the finding of a formal defect should lead
not to invalidity, but to a further inquiry: does the non-complying documents
express the decedent’s testamentary intent, and does its form sufficiently
approximate Wills Act formality to enable the court to conclude that it serves the
purpose of the Wills Act
Held: The literal requirements of the execution ceremony were not satisfied here
because the will was not signed. Court looks at the signatures on the affidavits
and to what the affidavits say and concludes that there’s substantial compliance
with the execution requirements. The court admits the will to probate
Significance: This is the first case to adopt the substantial compliance doctrine
Exam hint: In addition to looking to see if the technical requirements have been
met, look to see if there’s been substantial compliance
UPC § 2-503 HARMLESS ERROR (DISPENSING POWER) (p. 252)
Gives the court the power to dispense with formalities if there is clear and
convincing evidence that the decedent intended the writing to constitute:
(i)
decedent’s will
(ii)
partial or complete revocation of the will
(iii)
addition to or an alteration of the will
(iv)
partial or complete revival of his/her formerly revoked will or of a
formerly revoked portion of the will
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HYPO: Should H’s will, in In re Pavlinko’s Estate, be admitted to probate UPC
§ 2-503’s Harmless Error rule?
Under this section H’s will should be admitted to probate because there’s
sufficient evidence to show that the distribution in the residuary clause
was in accord with the distribution in intended
HYPO: How would In re Estate of Ranney come out under UPC § 2-503
(dispensing power)?
There’s no indication that T didn’t want this to be his will (this is how he
wanted his property to be distributed). So you’re probably going to have
clear and convincing evidence that T intend this to be his will –
testimony of the attorneys, family, affidavits, testimony of the other
witness. So under the UPC T’s will should be admitted to probate even
though it doesn’t technically comply with the requirements bc T intended
the writing to be his will
Substantial Compliance Doctrine v. Dispensing Power
▪
Substantial Compliance Doctrine – Court is saying that T came close
enough to the formal requirements
▪
Dispensing Power – Idea that a technical requirement isn’t really
needed and thus we can dispense with it (i.e. – throw it out). This
power gives the court the power to validate a will even though the
formalities aren’t complied with (court may look to whether T
intended the document to be his will and base it’s decision mainly
upon the testator’s intent)
HYPO: T wrote out his will entirely by hand. There are no witnesses. The
jurisdiction does not recognize holographic wills. Because the jurisdiction
does not recognize holographic wills the will must be signed by two
witnesses in order to be valid. Would the writing be valid under the
substantial compliance doctrine? Under UPC § 2-503?
▪
Substantial compliance: You probably can’t make the argument that
this will substantially complies. There’s no indication here that T made
any attempt to comply with the formalities (no indication that he tried
to have the will witnessed). So this rule probably isn’t going to save
this handwritten doctrine
▪
Dispensing Power (UPC § 2-503): If you have clear and convincing
evidence that T intended this to be his will you could arg that the
signature requirement can be dispensed with and therefore that this
will is ok
Q: If we have a situation were it may be possible to excuse some of the
technical requirements (i.e. – that you have 2 witnesses) why should we
continue to have these technical execution requirements?
- The more requirements you have the more difficult it will be for
someone to perpetuate a fraud
- The technical requirements also probably make more difficult to assert
undue influence
- Requirements serve an evidentiary function
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-
The more hoops you have to jump through the more likely you are to
take it seriously
Bottom line: Just because we can get around the technical execution
requirements in some instances doesn’t mean that we want to abandon
them entirely
2. HOLOGRAPHIC WILLS
Holographic will: A will written by T’s hand and signed by T; attesting
witnesses are not required
UPC § 2-502(b): A will is a valid holographic will, whether or not
witnessed, if the signature and material portions of the document are in
T’s handwriting (p. 263)
Majority states that recognize holographic wills require that
1) T sign the will: In almost all states permitting holographic wills, a
holographic will may be signed anywhere in the will, but if not signed at the
end you may have a problem with the material that falls below the signature.
For this reason it’s a idea to advise a client writing a holographic will to sign
it at the end
In re Estate of Fegley (CO 1978) – Court denied probate to a handwritten
instrument reading, “I, Henrietta Fegley, being of sound mind and disposing
memory, declare this instrument to be my last will,” both not otherwise signed
In re Estate of MacLeod (CA 1988) – reaching opposite conclusion on virtually
identical facts as those in In re Estate of Fegley
2) Material portions of the will be in T’s handwriting
States with more stringent requirements require that holographic
wills be
1) Entirely in T’s handwriting
Note: This requirement can cause problems bc if there is any other
notation on the document then the entire will can be invalidated on the
basis that the entire document isn’t in T’s handwriting
In re Estate of Dobson (Wyo 1985)- T took her signed handwritten will to her
local banker to discuss it with him. To make the will clearer, the banker penciled
in certain numbers and parentheses and added to the devise a tract of land,
“including all mineral and oil rights,” all with the consent of the testator. Court
held that the will could not be probated because not entirely in the handwriting
of the descendent (p. 263)
2) Dated (month-day-year)
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Note: Having date requirement is good in that it helps to determine which of T’s
wills is most recent if he has more than one. On the other hand, if T has only
one will and it doesn’t have a date on it then the entire will is going to be thrown
out even if all the other requirements are satisfied (p. 263)
Where are holographic wills recognized? Holographic wills are
generally recognized West of the Mississippi
Caution: A traditional will can be written out long hand so long as it
complies with all the formal execution requirements (i.e. – that it be
signed by 2 witnesses)
If you have a will that is not signed by 2 witnesses
1) Determine whether the jurisdiction recognizes holographic wills
2) If the jurisdiction does accept holographic wills look to see if the
document meets the holographic will requirements
Note: Correction of harmless error provided in UPC § 2-503 applies to
holographic wills as well as to attested wills
Note: You can challenge a holographic will on the same grounds that you
challenge a traditional will (i.e. – undue influence, fraud, and incapacity).
Realize, however, that these args may be harder to make w/r/t holographic wills
Kimmel’s Estate (PA 1924), p. 271
Facts: Decedent wrote a letter to his sons which he mailed on the day of
his death. Decedent had a hard time with writing – it’s very tough to read.
It stated “I have some very valuable papers I want you to keep fore me so
if enny thing happens all the scock money in the 3 Bank liberty lones Post
office stamps and my home on Horner ST goes to George Darl & Irvin
Kepp this letter and lock it up it may help you out” Signed “Father.”
Decedents sons try to get this admitted to probate to show that they should
get all of his money and house
Held: Court says the requirements of a holographic will have been met
here even though he signed “Father” (that was okay bc he customarily
signed his name that way in letters to his children)
Significance: This case shows that when you start to construe letters as
holographic wills you can run into some real problem
Comment: This case seems a much closer call than the Johnson case.
While Kimmel seems to have given some thought as to what he wants to
happen to his property after he died, how final is it? Is this really a
holographic will? The court looked to the “keep this letter” language and
said that it reflected a finality of intent. But the language is really
ambiguous here and could easily be interpreted as not reflecting T’s final
intent bc it is not clear
Estate of Blake v. Benza (AZ 1978), p. 267-68
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Facts: The postscript to a personal letter said “P.S. You can have my entire
estate.” “/x/ Harry J. Blake (SAVE THIS).”
Held: TC’s admission of this postscript to a personal to probate
Rationale: having been no contention that the letter was not written and signed
by decedent, it was held that the postscript was more than a mere casual
statement, and it was deemed sufficient to demonstrate a testamentary intent.
The opinion focused on the words “SAVE THIS” to support the position that the
letter was to have future significance. The fact that the formal signature
following the dispositive clause bore T’s name in full as opposed to simply
“Your Uncle Harry” as in previous letters, was also supportive of testamentary
intent. Also, the dispositive clause itself contained the words “you can have”
which clearly imported a future connotation
In re Estate of Wong (CA 1995), p. 269-70
Facts: A handwritten document stating: “All Tai-Kin Wong’s  Xi Zhao, my
best half.” “/s/ TKW” (12/31/92)”. Tai-Kin Wong was a 44 yr old bachelor and
Xi Zhao was his girl-friend with whom he had lived for 3 years. The document
was found in a sealed envelope in Tai-Kin’s office, to which rainbow stickers
reading “You’re Special” and “Love You” had been added. Tai-Kin died on the
very day the document was signed
Held: Court denied probate bc the doc didn’t refer to any prop of Tai-Kin and
didn’t contain a word indicating a gift. The arrow was deemed not a word but a
symbol of no fixed meaning
In re Will of Smith (NJ 1987), p. 270
Facts: A few months after the death of her husband in March 1984, Esther Smith
delivered to Harry Fass, her 84 yr old attorney a writing that read: “My entire
estate is to be left jointly to my step-daughter, Roberta Crowly, and my step-son
David J. Smith . .. /s/ Esther L. Smith.” Attorney testified that when Esther
handed him the 5 X 7 piece of paper torn from a notebook she said “this is my
will and this is the way I want my estate to go.” The attorney did not treat the
paper as a will (writing notes on it). In Sept 1984 the attorney wrote Esther that
he was retiring stating “Your file and/or Last Will and Testament in my office is
at your disposal if you do not care to retain [the attorney to whom he was
transferring his practice..” Esther died in Oct 1994. Her heirs were her first
cousins
Held: The writing was denied probate
Fill in the Blank Wills (Preprinted wills)
UPC § 2-502(c): Provides that testamentary intent can be established for a
holographic will by looking at portions of the document that are not in T’s
handwriting (p. 269)
Comment to § 2-502(c): Holographs may be written on a printed will
form if the material portions of the document are handwritten (p. 269)
Caution: Not all jurisdictions have adopted the current version of the UPC. You
should advise a client who purchases a preprinted form that he should write the
whole thing out.
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In re Estate of Johnson (AZ 1981), p. 264
Facts: T filled out prepared will by filling in the blanks. The will was not signed
by any witnesses the only way that this will be acceptable is if it’s accepted as
holographic will
Issue: Are the hand-written portions on a printed will form sufficient to satisfy
the requirement that the material provisions of the holographic will be entirely in
T’s handwriting?
Rule: An instrument may not be probated as a holographic will where it contains
words not in the handwriting of T if such words are essential to the testamentary
disposition. The mere fact that T used a blank form, whether of a will or some
other doc does not invalidate what would otherwise be a valid will if the printed
words may be entirely rejected as surplusage
Held: The material in the blanks do not satisfy the requirements that the material
portions of the will be entirely in T’s handwriting
Rationale: Here court looks just at the parts in T’s handwritten. Looking those
portions the court finds no intent that T intended this to be his will because it
does not say “I bequeath” or “Will” in his handwriting
Q: Did the court make a mistake here?
▪
▪
▪
▪
From T’s perspective it would certainly seem as though the court made a mistake
It seems that the court is being hyper-technical (this clearly isn’t a grocery list).
There is no indication that this wasn’t T’s will. Court is looking at the handwritten
portions in a vacuum – refusing to put them into context
The fact that the handwritten portions are on a preprinted form should be used to put
the handwritten portions into context. Even before 1990, there were cases that said
you could put words on a preprinted form to put the handwritten portions into
context
People generally don’t refer to their estate when referring to what they have when
they’re alive (people generally use “estate” to mean that which is left when they die).
That coupled with the lang on the preprinted form should satisfy the court based on
what other courts have accepted (other courts require much less in the way of intent)
Q: How would this case have come out under the current version of the
UPC? Under the current version of the UPC you can look at the fact that this
form says “My last will and testament.” Thus under the current version of the
UPC this case probably would have been decided differently bc there’s a clearer
intent that T intended this to be his will
In re Estate of Muder (AZ 1988), p. 269
Facts: T hand wrote a will on printed will form, signed and notarized by not
notarized. The handwritten dispositive lang, inserted on printed paragraph saying
“I give to,” read: “My wife Retha F. Muder, our home and property in Shumway,
Navajo County, car – pick up, travel trailer, and all other earthly possessions
belonging to me, livestock, cattle, sheep, etc. Tools, savings accounts, checking
accounts, retirement benefits, etc.
Held: Upheld the will as valid holographic will
Rationale: Such handwritten provisions may draw testamentary context from
both the printed and the handwritten language on the form. We see no need to
ignore the preprinted words when the T clearly did not, and the statute does not
require us to do so
In re Estate of Foxley (Nebraska 1998) – Court held that words handwritten on
photocopy of will “her share to be divided between 5 daughters,” written next to
typewritten name of daughter who predeceased T and signed by T could not be
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probated bc the handwritten words made no sense as a will w/out reference to the
typed words
In re Estate of Mulkins (AZ 1972): T filled out a preprinted form. Held that the
preprinted words on the will were not essential to the meaning of the handwritten
words and could not be held to defeat the intention of the deceased otherwise
clearly expressed. The handwritten portion on the will read: “I hearby make my
will to Bettie Smith as Sister now living in Flint Michigan at 2222 on Oklahoma Ave.
and Betty Hart Elkins at Rt.1 Box 267 36 St. Just North of Southern Ave Phoenix, AZ,
about a block. I have 10 acres on Rincon Road. The South 330 feet of the Northwest
quarter of the Northeast quarter of Section Twenty six 26 of township 8 North range 5
West of the Gila and Salt River base and Meridian Yavapai County of Arizona this 8 day
of April 1966.” (p. 267)
Note: Preprinted wills must be signed and attested in the same manner as any
attested will. A large number of preprinted wills fail in probate bc they
improperly completed or executed (p. 269)
CONDITIONAL WILLS
Issue: Does T want the will to be effective only if the event happens or to
be effective at T’s death regardless of whether his death is related to the
event?
Majority View: Presume that the language of a condition does not mean
that the will is to be probated only if that stated event happens but is,
instead, merely a statement of the inducement for execution of the will,
which can be probated upon T’s death from any cause
Eaton v. Brown (SCT 1904) – T wrote holographic will saying “I am going on a
journey and may not return. If I do not, I leave everything to my adopted son.” T
returned from her journey and died some months later. SCT ordered the will to
probate
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B. REVOCATION OF WILLS
What happens if T does not properly revoke his will? If a duly executed will is not
revoked in a manner permitted by statute, the will is admitted to probate
1. REVOCATION BY WRITING OR PHYSICAL ACT,
A WILL BE REVOKED BY:
1) PHYSICAL ACT: You can revoke your will by physical act. The physical act
has to be done with the intent that T is going to revoke his will and the
physical act has to be done in T’s presence (examples: destroying,
obliterating, or burning the will, drawing a big X through all the words)
Caution: Under the UPC there is not requirement that a mark you
make to cancel the will has to cancel words. But under the CL and the
law in effect in many jurisdictions the cancellation marks must be
touching the words (i.e. – writing void on the back of the will or in the
margins won’t be enough). You actually have to draw lines through
the words
2) SUBSEQUENT WRITING executed with testamentary formalities
a. You can execute a new will saying that I revoke all previous wills made
by me
b. You can write a statement saying I revoke my will period. You then have
no will and your property will pass by the laws of intestacy
c. Revocation by Inconsistency: A subsequent will wholly revokes the
previous will by inconsistency if T intends the subsequent will to replace
rather than supplement the previous will. A subsequent will that does not
expressly revoke the prior will does not make a complete disposition of
T’s estate is presumed to replace the prior will and revoke it by
inconsistency. (If the subsequent will does not make a complete
disposition of T’s estate, it’s not presumed to revoke the prior will but is
viewed as a codicil). (p. 277)
UPC § 2-507 Revocation by Writing or by Act (p. 276)
(a) A will or any part thereof is revoked by:
(1) Executing a subsequent will that revokes the previous will or part
expressly or by inconsistency, or
(2) Performing a revocatory act on the will, if T performed the act with the
intent and for the purpose of revoking the will or part or if another
individual performed the act in T’s conscious presence and by T’s
direction
For purposes of this paragraph, “revocatory act on the will” includes burning,
tearing, canceling, obliterating, or destroying the will, or any part of it. A
burning, tearing, or canceling is a “revocatory act on the will,” whether or not
the burn, tear, or cancellation touched any of the words on the will
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Thompson v. Royall (VA 1934), p. 280
Facts: T made a will. Later she instructed the judge (the attorney who prepared both
the will)to destroy it. Judge persuaded her to retain the will as a memorandum so that
she would have something to go by if she decided to execute a new will. On the back
of the manuscript cover, the judge made a notion and T signed. The notion said
“This will is null and void”
Held: The attempted revocation was ineffectual because T did not revoke her will:
(1) by subsequent writings no executed as required by the statute (The revised
document wasn’t witnessed and this isn’t a holographic will because its not entirely
in her handwriting thus the execution requirements for neither a traditional or a
holographic will were followed ), or (2) by physical act because the marks do not in
anyway physically cancel any written parts of the will
Rationalization: Court believes that it would be very easy for someone to perpetrate
a fraud such at least in the scenario where a statement is made on a separate piece of
paper
Criticism: There is going to be fewer opportunities for fraud if the writing is one the
backside of the will, so the court’s argument here doesn’t seem all that strong. The
intent of the testator is clearly not being followed in this case
If T’s heirs were to bring a suit today on what basis might they bring it?
a. Malpractice Action: If the facts in Thompson v. Royall had occurred in 2001,
would the judge be liable to T’s heirs for malpractice? Today the lawyer who
persuaded T to revoke her will in this ineffective way probably would be
responsible to T’s heirs. So T’s relatives would probably get the same result
initially but the relatives should be able to recover to some extent from the
attorney
b. Doctrine of substantial compliance: If the jurisdiction follows the doctrine of
substantial compliance, the court might find that there’s sufficient evidence of
T’s intent to revoke and that she substantially complied with the revocation
requirements. Court may find that her adoption of the statement on the back of
the will that it was “null and void” constitutes substantial compliance even
though the cancellation didn’t touch any of the words on the will. Other courts,
however, may conclude that that is not substantial compliance. (Note there are
cases that have similar facts that come out with different results, especially in
jurisdictions that recognize holographic wills)
c. UPC § 2-507 provides “A burning, tearing, or canceling is a ‘revocatory act on
the will,’ whether or not the burn, tear, or cancellation touched any of the words
on the will.” Words of cancellation must be written on the will, whether or not
they touch the words on the will. They cannot be written on another document.
Had UPC § 2-507 been in effect, the revocation in Thompson v. Royall would
have been valid because the words of cancellation were written on the will
HYPO: Suppose that T had written on the left-hand margin of each page of the will,
“Cancelled 19/9/32 M. Kroll.”
(a) Would this be a valid revocation by physical act?
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Some jurisdictions would say yes and other would say no on the basis that you
don’t know what T is canceling
(b) Would this be valid revocation in states permitting holographic wills?
You can make the arg that you can use the printed material to put the written
words into context under the UPC
What does a codicil do? A codicil supplements a will rather than replacing it.
Generally, the only thing that makes a codicil a codicil rather than a 2nd will is
that it doesn’t have any lang of revocation. A codicil can be as long as or longer
than the original will
HYPO: In 1995, T executes a will that gives all her property to A. In 1997 T
executes a will that gives her diamond ring to B and her car to C. It contains no
words of revocation. Even though the 1997 will makes no reference to the earlier
will,
(a) What is the 1997 will ordinarily called?
1997 will is ordinarily called a codicil
(b) In 1999, T destroys the codicil with the intention of revoking it; T dies in 2000.
The 1995 will is offered for probate. Should it be admitted?
As long as there is no language of revocation in the 1997 document (it’s a
codicil). General rule that prevails under the CL is that if you revoke a
codicil it has no impact on T’s original will. Thus the will should be
admitted to probate. Under the terms of the 1995 will A gets everything
(c) Instead, T destroys the 1995 will with the intention of revoking it. After T’s death
the codicil is offered for probate. Should it be admitted?
No the codicil should not be offered for probate. The prevailing rule is that
once you revoke your will the codicil is also revoked. You have to have the
original will that the codicil goes with or it won’t be effective. This rule is
no followed in every jurisdiction so you need to see what rule your
jurisdiction follows
Harrison v. Bird (Alabama, 1993), p. 277
Facts: Decedent executed a will in 1989, naming Harrison as the main beneficiary.
She executed two original copies of these wills, giving one to her attorney and the
other to Harrison. In March 1991 decedent phoned her attorney and told him that she
wanted to revoke her will. Decedent’s attorney tore up T’s will in the presence of his
secretary. Attorney then wrote decedent a letter saying that he had revoked the will
and put the pieces of the torn up will in the envelope. Decedent died in Sept 1991.
Upon her death the letter was found but the torn up pieces of the will were not found.
Probate court determines that estate should pass through laws of intestacy.
Presumptions: If the evidence establishes that T had possession of the will before her
death, but the will is not found among her personal effects after her death, a
presumption arises that she destroyed the will. Furthermore, if she destroys the copy
of the will in her possession, a presumption arises that she revoked her will, and all
duplicates even though a duplicate exists that is not in her possession. This
presumption of revocation is rebuttable and the presumption is on the proponent of
the will
Held: The evidence presented by Harrison was not sufficient to rebut the
presumption that T destroyed her will with the intent to revoke it
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Note: Court assumes that she threw the pieces out – that is the physical act that the
court is relying on to say that she revoked the will
The person who has the burden of overcoming the presumption is probably
going to lose
Note: The problem with the making the assumption that T threw her will out (i.e. –
revoked it) if it’s not found among his/her possessions upon her death is that this
could encourage the first one who goes inside T’s house to throw the will out,
especially if he/she will take more under the laws of intestacy. The court here
doesn’t seem to be troubled by this possibility
HYPO: Suppose T’s lawyer sends her home with the only executed copy of T’s will.
The will leaves all her property to Z. After T’s death, her heir goes in her house
looking for her will. The heir reports that she couldn’t find a will, and no will is
found. What result?
- In Harrison v. Bird, the court wasn’t troubled by the fact that person who
couldn’t find the will wasn’t included in will and that the same person would take
by the laws of intestacy
- In Estate of Travers (AZ 1978): Opportunity of disinherited heir to destroy will
does not rebut presumption of revocation
- Lonergan v. Estate of Budahazi (FL 1996): Presumption of revocation lost will
disinheriting husband rebutted where husband lived in house with wife and the
couple had been fighting before she died
- So it’s not a hard and fast rule that if the papers aren't’ found that the court will
presume that T revoked her will. There are cases where courts have found
proponents to overcome the presumption but you have to have sufficient
evidence (evidence that the first person in the house was not a beneficiary under
the will is not enough to overcome the presumption)
PARTIAL REVOCATION BY PHYSICAL ACT
Some jurisdictions recognize partial revocation by physical act
1) UPC § 2-507 authorizes partial revocation by physical act
2) Some states authorize partial revocation by physical act
Other jurisdictions recognize partial revocation only if done in an attested
document
In several states, a partial revocation is permitted only where it has been done in an
attested document. If partial revocation by physical act is not recognized, the will
must be admitted to probate in the form in which it was originally executed if the
original language can be ascertained
Reasons for prohibiting partial revocation by physical act are two
1) Canceling a gift to one person necessarily results in someone else taking the gift,
and this “new gift” – like all bequests – can be made only by an attested writing
2) Permitting partial revocation by physical act offers opportunity for fraud. The
person who takes the “new gift” may be the one who made the canceling marks
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HYPO: T puts in her will (which is validly executed) that her estate is to be divided
between her 3 kids. T’s daughter then wins the lottery. T decides that the daughter
really doesn’t need any more money and decides not to give her anything. T crosses
her name out in the will with a pen. Can T do that?
Many jurisdictions would say that T cannot do this because by deleting the
gift to her daughter, T is increasing the gift to her two sons. These courts
will accept the change only if T makes it in an attested document – like all
bequests. Other jurisdictions don’t permit changes to be made this way on the
grounds that it invites fraud.
HYPO: T executes a will that devises the residue of her estate to 4 named relatives.
After T’s death some years later, her will is found in a stack of papers on her desk.
One of the 4 names in the residuary clause has been lined out with a No. 3 lead
pencil. There is no direct evidence that T marked out the name.
(a) What result in a state having a statute similar to UPC § 2-507?
UPC permits partial revocation by physical act. In this case the court would
likely hold that this is a valid revocation because the will was in T’s
possession at the time of her death. That is, the presumptions kick in that
because it was in T’s possession at the time of her death it’s presumed that
she made the revocation. The will and revocation would likely be given
effect under the UPC. The 3 people not crossed out would then become the
beneficiaries under the will
(b) What result in a state that does not permit partial revocation by physical
act?
If you’re in a jurisdiction that doesn’t recognize partial revocation by
physical act then as long as you can figure out what the name that has been
crossed out is, the court will ignore the line and all the people named in the
will take
(c) Suppose that T’s will is a holographic will in a jurisdiction permitting
holographic wills?
If you live in jurisdiction that recognizes holographic wills then T can make
all the changes she wants, and she can make the changes as sloppy as she
wants to – the only requirement is that somebody else can figure out what the
changes mean.
Caution: You only run into problems with partial revocation where traditional wills
are involved. With holographic wills, partial revocation is not an issue
2. REVOCATION BY OPERATION OF LAW: CHANGE IN FAMILY CIRCUMSTANCES
Changes in family circumstances that bring about revocation by
operation of law
1) Divorce
2) Subsequent Marriage
3) More children
(1) DIVORCE: In the majority of states, have revocation statutes that say that
a divorce revokes any provision in T’s will for the divorced spouse. This
gives T some leeway bc doesn’t have to run out and change his will the
second he gets a divorce (Note these revocation statutes ordinarily apply
only to wills, not to life insurance policies, pension plans, or other
nonprobate transfers)
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What about gifts to your spouse’s relatives? (p. 299)
▪
UPC § 2-804 says that gifts to your spouse and your relatives are
revoked
▪
Majority view: Majority of jurisdictions do not follow UPC rule
that gift to spouse and spouse’s relatives are revoked upon
jurisdiction (i.e. – in most jurisdictions a gift to your spouse’s kid
from prior marriage won’t be revoked)
Problem 1 (p. 299): T executes a will devising all property to his wife, and if
his wife does not survive him to his wife’s son (T’s stepson). T divorces his
wife and then dies. T’s heirs are his children by a prior marriage. A statute
revokes all provisions in a will for a divorced spouse and treats the divorced
spouse as having predeceased T. Does T’s stepson take T’s property?
- Under majority view, T’s prop would still take T’s prop
- Under UPC § 2-804 the stepson would not take T’s prop bc 2-804
revokes gifts to a spouse’s relatives upon divorce
- Best idea is to advise a client who has recently divorced his spouse is to
tell him to change his will
(2) SUBSEQUENT MARRIAGE (p. 300)
▪
If T executes a will and subsequently marries, a large majority of
states have statutes revoking the will to the extent that it gives the
surviving spouse his/her intestate share.
▪
Forced share. Surviving spouse can elect to take forced share if
omitted from the will or share he/she will get under the will isn’t as
much as the forced share would be
(3) BIRTH OF CHILDREN (p. 300)
Majority of jurisdictions have statutes giving a child born after the
execution of a parent’s will, and not provided for in the will, a share in the
parent’s estate. These statutes result in a revocation of the will to the
extent of the child’s share (generally money comes out of the residuary
clause to satisfy this; if not enough there then take a pro rata share from
everyone else)
F. BRING A REVOKED WILL BACK
Two main ways to bring a revoked will back
1) Doctrine of Dependent Relative Revocation
2) Doctrine of Revival
1. Doctrine of Dependent Relative Revocation
Doctrine of Dependant Relative Revocation (DDRR): If T purports to revoke
his will upon a mistaken assumption of law or fact, the revocation is ineffective if
T would not have revoked had he known the truth.
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Three situations where DDRR frequently comes into play
T duly executes a will. T decides that he doesn’t like the distribution and
Situation # 1
makes a new will, thereby revoking Will # 1. After T’s death the court
determines that Will # 2 is not valid. (Carter v. 1st Methodist Church)
DDRR presumption
DDRR presumes that T would not have revoked Will # 1 if he knew that Will
# 2 was not valid. This is presumption is rebuttable (i.e. – by showing that
distribution in Will # 2 more closely matches distribution under laws of
intestacy than distribution under Will # 1)
Situation # 2
T revokes Will # 2 with the mistaken assumption of law that by destroying
Will # 2, Will # 1 comes back into effect. (Estate of Alburn)
DDRR Presumption
DDRR presumes that T would not have destroyed Will # 2 if he knew that
Will # 1 would not become his will. This presumption is rebuttable (i.e. – by
showing that distribution in Will # 2 more closely matches distribution under
laws of intestacy than distribution under Will # 1)
Situation # 3
A mistake is recited in the revoking instrument
DDRR doesn’t carry out T’s intent but the “Next Best Thing”
DDRR does not put into effect the will that T wants to go into effect but distributes the
property in accordance with the last duly executed will
How does one rebut the presumptions of the DDRR?
Frequently, one rebuts the presumption of DDRR by showing that a distribution under the
laws of intestacy more closely matches the distribution T wanted then the will the court is
willing to admit to probate
When does applying DDRR make sense?
It usually makes sense to apply the doctrine of DDRR if the distributions in Will # 1 and
Will # 2 (or vice versa) are pretty much the same. However, if the wills make radically
different distributions, distributing T’s property under this doctrine wouldn’t seem to
make much sense. In this instance, having the property pass through the laws of intestacy
might make more sense
Caution: Not all jurisdictions follow the doctrine of dependent relative revocation!
Carter v. First United Methodist Church of Albany (GA 1980), p. 286
Facts: T executes a will in 1963. T’s will was found folded with a handwritten
instrument dated 1978. The 1978 instrument was captioned as her will but it was
unsigned and unwitnessed, establishing a different scheme of distribution of her property.
Pencil marks had been made diagonally through the property disposition provisions of the
1963 will and through the name of one of the co-executors
Issue: Does the doctrine of dependent relative revocation apply? If so, how is T’s
property to be distributed?
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Held: Dependent relative revocation applies bc the 1978 document was not a valid will.
Court presumes that T would not have wanted the 1963 will revoked if the 1978
document was not effective. T’s prop is to be distributed in accordance with the 1963 will
Criticisms
(1) There really is no evidence here – court makes its decision here by applying
presumption after presumption (it does not make a decision based on the
facts):
▪
▪
▪
That the marks of revocation (the scratching out) were made by the testator.
Court bases the presumption on the fact that the will was in T’s possession
at the time of her death
The fact that the 2 documents were found together. The court presumes that
T’s revocation of the 1963 will was dependent upon the 1978 document
being an effective will
Court presumes that T would prefer to have her property distributed under
the terms of the 1963 will instead of under the laws of intestacy because the
proponents failed to rebut the presumption
(2) Court failed to compare and contract the 3 possible distribution schemes:
The one thing that we don’t’ know that would really make all the difference
in this case is evidence of who T’s beneficiaries were under these documents
and who her heirs. You need to compare what the distribution is under the
1978 doc v. 1963 will v. laws of intestacy
HYPO: T duly executes a will devising his property to “Peggy Martin.” Thereafter, T
learns that the legal name of the devisee is “Margaret Martin” not “Peggy Martin” and T
decides that this misdescription should be corrected. T therefore cancels his old will by
writing “VOID” across it and executes a new will devising his will to Margaret Martin.
Margaret Martin is one of the 2 witnesses to the new will and under the applicable state
law the devise to her is ineffective. What is the outcome under the doctrine of dependent
relative revocation?
 Since it’s clear that T wants Martin to take the property, the doctrine of
dependent relative revocation is applied: The revocation of the 1st will is not
given effect; the first will is probated and Margaret Martin (a.k.a. Peggy
Martin) takes T’s property under the will
HYPO: T bequeaths $5,000 to his old friend Judy, and the residue of his estate to his
brother Mark. T later executes a codicil as follows: “I revoke the legacy to Judy, since
she is dead.” In fact, Judy is still living and survives T. Does Judy take $5,000?
In this situation you can apply dependant relative revocation and bring back the
entire will because it’s a clear-cut mistake
HYPO: T bequeaths $5,000 to his old friend Judy, and the residue of his estate to his
brother Mark. T later executes a codicil as follows: “I revoke the legacy to Judy since I
have already given her $5,000.” In fact, T did not give Judy $5,000 during life. What
result?
This may be a mistake but you need extrinsic evidence. This is not a clear-cut
situation. Court can’t tell just by looking at the face of the doc about whether or
not T has made a mistake. Court needs more info, more evidence, to determine
whether T gave Judy $5,000 while he was alive
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Estate of Alburn (SCT of Wisconsin, 1963), p. 292
Facts: T revoked Will # 2 (Kankakee will) under the mistaken belief that Will # 1
(Milkwakee will) would be revived (i.e. – come back into effect). Will # 2 and Will # 1
left majority of her estate to friends and relatives of her deceased husband with only
small amounts going to her surviving siblings (her heirs)
Issue 1: Does T have a valid will?
Held: No. Bc she revoked will by physical act – tore it up and threw out the pieces
Issue 2: Does the doctrine of dependent relative revocation apply here? Did T revoke the
Kankakee will under the mistaken belief that she was thereby reinstating the Milwaukee
will?
Held: Yes. T revoked the Kankakee will here under the mistaken belief that by doing so
she was thereby reinstating the Milwaukee will
Rationale: Statement made to Olga Lechmann that T wished her Milwaukee will to
stand, the inference that she did wish to die intestate, and fact that she took no steps
following the destruction of the Kankakee will to make a new will are sufficient evidence
to support the finding that she destroyed the Kankakee will under the mistaken belief that
the Milwaukee will would be reinstated. Moreover, there was no evidence that T wanted
her prop to pass under the laws of intestacy, therefore it is not against the great weight
and preponderance of the evidence
Issue 3: If the doctrine of dependant relative revocation his applicable here, how will her
prop be distributed? T’s estate will be distributed in accordance with the Kankakee Will
(the will that she destroyed)
Why did the court think it was appropriate to apply the doctrine of dependent
relative revocation in this case? Court compares the distributions that will be made
under the laws of intestacy v. distributions under Milwaukee Will (will that she wanted)
v. distributions under Kankakee Will (will that she destroyed)
 Under both the Kankakee and Milwaukee wills the main beneficiaries are non-heirs.
If her prop passes under the laws of intestacy, the people who would inherit the bulk
of her prop under the wills are not going to get anything
 Court says that Kankakee distribution is closer to Milwaukee distribution then the
distribution that will occur under the laws of intestacy
 Under the Doctrine of Dependent Relative Revocation the court puts into effect the
distribution scheme that most closely resembles that of the Milwaukee will – that in
the Kankakee will
 So while the court doesn’t distribute the prop exactly as she wanted it, it distributes in
the way that was closest to her intent
 This is an example where applying the Doctrine of Dependent Relative Revocation
makes sense bc under Wisconsin law, T could not get the will she wanted into effect,
so the court does the next best thing (puts the distribution scheme into place that most
closely tracks her desired distribution)
Note: Some jurisdictions recognize both revival and dependent relative revocation. In
that case, the determination of which doctrine is preferable depends completely upon who
your client is and which will is more favorable to him
Exam Tip: Assume that everything is available (doctrine of dependent relative
revocation and revival). Make your arguments based upon what is best for your client
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2. Doctrine of Revival
Revival lets you get back Will # 1
When does issue of revival come up? The doctrine of revival usually comes up
in the same basic fact patterns where you see dependent relative revocation.
Generally you have two wills. In this case you want to bring back will # 1, can
you do it? It depends on the type of revival statute the jurisdiction adopts
Doctrine of Revival
1. Majority View: Assumes that Will # 2 legally revokes Will # 1 at the time
Will # 2 is executed. Upon revocation of Will # 2, Will # 1 is revived if T so
intends. T’s intent may be shown from the circumstances surrounding
revocation of Will # 2 or from T’s contemporaneous/subsequent oral
declarations. If you have enough evidence Will # 1 can be revived
2. Minority views
(a) Can’t be revived unless reexecuted / republished: Some jurisdictions
take the view that a revoked will cannot be revived unless reexecuted with
testamentary formalities or republished by being referred to in a later duly
executed testamentary writing (this will work in any jurisdiction)
(b) English CL Courts: A few jurisdictions take the view of the English CL
courts that Will # 1 is not revoked unless Will # 2 remains in effect until
T’s death. The theory is that since a will does not operate until T’s death,
Will # 2 is not legally effective during T’s life. Therefore Will # 1 is not
revoked by Will # 2. Technically, this theory doesn’t involve revival at all
because the first will has been revoke
3. UPC § 2-509 Revival of Revoked Will
Under UPC the effect of revocation of Will #2 on Will # 1 depends on
whether Will # 2 was a total or only a partial revocation of Will # 1:
(1) If Will # 2 is physically revoked
▪
If Will # 2 partially revoked Will # 1, UPC § 2-509(b) presumes
revival
▪
If Will # 2 completely revoked Will # 1, UPC § 2-509(a) presumes
against revival
(2) Will # 2 revoked by Subsequent Will: If Will # 2 is revoked by Will # 3,
Will # 1 is revived only if the intent to do so is shown in Will # 3
UPC § 2-509 Revival of Revoked Will, p. 297
(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a
revocatory act under § 2-507(a)(2), the previous will remains revoked unless it is
revived. The previous will is revived if it’s evident from the circumstances of the
revocation of the subsequent will or from T’s contemporary or subsequent
declarations that T intended the previous will to take effect as executed
(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a
revocatory act under § 2-507(a)(2), a revoked part of the previous will is revived
unless it’s evident from the circumstances of the revocation of the subsequent will or
from T’s contemporary or subsequent declarations that T did not intend the revoked
part to take effect as executed
(c) If a subsequent will that revoked a previous will in whole or in part is thereafter
revoked by another, later, will, the previous will remains revoked in whole or in part,
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unless it or its revoked part is revived. The previous will or its revoked part is revived
to the extent it appears from the terms of the later will that T intended the previous
will to take effect
Problem 2 (p. 298) In 2000, T dies. T’s heir is H. T’s safe-deposit box contains
the following 3 documents, all duly signed and witnessed according to law: (1) A
will executed in 1995 devising all T’s property to A, (2) A will executed in 1996
devising all T’s property to B, and (3) A document executed in 1999 reading “I
hearby revoke my 1996 will.” Under UPC § 2-509(c) who takes T’s property?
▪
Here 1995 will is revoked by the 1996 will
▪
1999 document revokes the 1996 will
▪
Because both wills are revoked and T left no writing stating his desire that one of
the 1995 will be revived, T dies w/out a valid will, and thus his property will
pass under the laws of intestacy
▪
H will take T’s prop under the laws of intestacy
HYPO: What would the result be in the Alburn Case if the Wisconsin had
adopted UPC § 2-509’s revival statute?
▪
Kankakee will doesn’t have lang that clearly revokes the Milwaukee will
▪
Is the Kankakee will partially or wholly revoked? If all of the terms are
entirely inconsistent then you can say that Will # 2 revokes Will # 1. Here it’s
hard to tell. In this case the primary beneficiaries are the same but the provisions
are not the same so we don’t know which provision to apply. The fact that only
10% of the distribution is different seems like it wouldn’t entirely revoke the first
will
▪
Point: UPC sounds cut and dry but it really isn’t that clear. Here it’s not clear
which provision of the UPC should apply bc it’s not clear whether Will # 2
partially or wholly revoked Will # 1
G. COMPONENTS OF A WILL
Two doctrines permit extrinsic evidence to resolve the identity of persons or
property
1) Doctrine of Incorporation by Reference
2) Doctrine of Acts of Independent Significance
Caution: These doctrines often get confused with Integration of Wills and Republication by
Codicil
1. Integration of Wills: Under the doctrine of integration, all papers present at the time of
execution, intended to be part of the will are part of the will
How can an attorney avoid an integration doctrine problem?
An attorney can prevent any problem from arising under the integration doctrine
by seeing to it that the will is fastened together before T signs it and by having T
sign or initial each numbered page of the will for identification
When do integration cases arise?
- pages aren’t physically connected (i.e. – staple)
- pages aren’t numbered
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-
no internal coherence
evidence that staple has been removed
one page is typed in elite type and the rest is typed in pica
2. Republication by Codicil: Under doctrine of republication by codicil, a will is treated as
reexecuted (republished) as of the date of the codicil.
Caution: Doctrine of Republication by Codicil applies only to a will that was
validly executed
Ex: You execute your will in 1980. You execute a codicil in 2001. Your will is treated as
though it was executed today under the doctrine of republication by codicil
Ex: You execute Will # 1 in 1980. In 1985, you execute Will # 2, thereby revoking Will
# 1. You then decide to revoke Will # 2. You decide to execute a Codicil to Will # 1. By
executing this codicil you can bring back Will # 1 even though it was previously revoked.
The codicil has the effect of republishing (reexecuting) Will # 1
Ex: Assume a jurisdiction has an interested witness statute purging any gift to an attesting
witness. In 1988, T executes a will devising all his property to A. A and B are witnesses
to the will. In 1999, T executes a codicil bequeathing $5000 to C. C and D are witnesses
to the codicil. In 2000 T executes a 2nd Codicil bequeathing C a diamond ring. D and E
are witnesses to the 2nd codicil, the Will and 1st Codicil are deemed to be re-executed in
2000 by the 2nd codicil which has two disinterested witnesses. A and C are not purged of
their gifts
 As the example above illustrates you may want to use republication by codicil to avoid
potential purging statute problems !
3. Incorporation by Reference
Two rules for incorporation by reference
1. Reference must be made to the document in the will
2. Document must be in existence when the will was executed
Exception: There’s an exception for tangible personal property (that’s the area
that people probably tinker with the most”
UPC § 2-510 Incorporation by Reference, p. 303
Any writing in existence when a will is executed may be incorporated by
reference if:
(1) the language of the will manifests this intent, and
(2) describes the writing sufficiently to permit its identification
UPC § 2-513 Separate Writing Identifying Bequest of Tangible Property, p. 311
Whether or not the provisions relating to holographic wills apply, a will may refer to a
written statement or list to dispose of items of tangible personal property not otherwise
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specifically disposed of by the will, other than money. To be admissible under this
section as evidence of the intended disposition, the writing must be signed by T and must
describe the items and the devisees with reasonable certainty. The writing may be
referred to as one to be in existence at the time of T’s death; it may be prepared before or
after the execution of the will; it may be altered by T after its preparation; and it may be
a writing that has no significance apart from its effect on the dispositions made by the
will
Why might you want to incorporate something by reference?
1) Will is a public document. If you incorporate something by reference it won’t
become part of the will and therefore won’t become a public document
2) Make the will a more concise document
Clark v. Greenhalge (MA 1991), p. 303
Facts: T executes a will in 1977 naming her cousin Fred as executor of the estate and as
principal beneficiary of the estate, entitling him to receive all of T’s tangible personal
prop upon her death except that which she “designated by a memorandum left by her and
known to Fred, or in accordance with her known wishes.” In 1972 T in drafted a doc
entitled “MEMORANDUM” and identified a “list of items of personal prop” to be
distributed to certain people. In 1976 T modified the 1972 memorandum. Neither edition
of the memorandum involved a bequest of the farm scene painting. T kept a notebook
that bore the title “List to be given to Helen Nesmith 1979.” One entry read “Ginny Clark
farm picture.” T’s nurses knew of the notebook. T told nurses orally that she intended to
give friend (Clark) the painting. Sometime between Jan or Feb 1980 T told Clark that the
painting would be hers after T’s death, mentioning that she would note this disposition in
her notebook. In 1977 T executed 2 codicils to her will, one in May 1980 and one in Oct
1980, codicils ratified the will. Fred refused to give the painting
Issue: Was the notebook incorporated by reference into the will?
Rule: A properly executed will may incorporate by reference into its provisions any doc
or paper not so executed and witnessed whether the paper referred to be in the form of a
mere list or memorandum if it was in existence at the time of the execution of the will and
is identified by clear and convincing proof as the paper referred to therein
Held: Yes the notebook was incorporated by reference into the will
Rationale: Court says that the “memorandum” refers to any doc that was in existence in
1980 to guide Fred in distributing T’s personal property. Court reaches this conclusion in
large part bc the lang in the will is vague and its within the purview of docs. Court
reasons that the this doc was ok even though it was not in existence at the time of the
execution of the will bc of the codicils that T executed. This notebook was in existence
in 1979, the codicils were executed in 1980 (when codicils were executed the entire will
was republished). Court said the fact that the notebook wasn’t labeled “memorandum”
didn’t matter – all that mattered is that the it served the same function as that given to the
memorandum mentioned in the will and it did (serve as guide to Fred in distribution of
her property)
Note: In Clark v. Greenhalge Court doesn’t scrutinize when exactly T wrote in the
notebook that the painting was go to Clark (technically this needs to be the case to
satisfy the incorp by reference doctrine). It could be that the court is loosing up the
guidelines a bit bc here we’re talking about tangible personal property
Note: Holding in Clark v. Greenhalge would be consistent with § 2-501(3) of the UPC.
UPC relaxes rule for tangible personal property: says that doc can be prepared before or
after the execution of a will and can be changed after execution of a will. UPC says that
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as long as there is some writing that can be identified through lang of the will it doesn’t
matter if you change it later w/r/t tangible personal property
Simpson v. Grayson (CA 1940), p. 309
Facts: T’s will dated March 25, 1932 left $4,000 to his executors to be paid by them as
shall be directed by him in a letter that will be found in my effects and which will be
addressed to my executors and dated March 25, 1932. Codicil to the will was executed
Nov 25, 1933 which made a small change and otherwise reaffirmed the will. After T’s
death, a letter dated July 3, 1933, addressed to the executors was found in the executor’s
safe-deposit box. It stated “In may will I have left you $4,000 to be paid to a person
named in a letter, I direct you to pay the $4,000 to Esther Cohen.” No letter dated March
25, 1932 was found
Held: Letter found in safe-deposit box was the letter referred to in the will despite the
discrepancy in dates. It was incorporated by reference into the will becoming an integral
part of the will. Since the letter was dated prior to the date of the codicil which
republished the will, it complied with the requirement that an incorporated document be
in existence on the date of the republished will. Court directed the executors to give the
$4,000 to the Esther Cohn’s estate (she died 7 days after T)
Note: Doctrine of incorporation by reference is not recognized in CT, NY, Louisiana.
NY court have filled the gap by stretching the doctrine of republication by codicil and
doctrine of integration
Johnson v. Johnson (SCT of Oklahoma, 1954), p. 311
Facts: T, an attorney, typed a 3 paragraph “will” but did not date it, sign it, or have it
witnessed. At the bottom of the page T wrote “To my brother James I give $10 only. This
will shall be complete unless hereafter altered, changed or rewritten. Witness my hand
this April 6, 1947. Easter Sunday, 2:30 P.M. /s/ D.G. Johnson, Dexter G. Johnson”
Issue #1: Is this a valid will?
Held: This is not a duly executed will note tradition bc not signed, witnessed or dated.
Not holographic bc it’s typed. {Also no indication here that T intended this to be his will
– a draft?}
Issue # 2: Has the will been republished by codicil?
Rule: Republication by codicil does not apply in cases where the original will was not
properly executed (the court’s conclusion here that the will has been republished by
codicil is wrong)
Issue # 3: Is the handwritten portion a holographic will that incorporates by reference the
typed portion?
Analysis: Court could have applied doctrine of incorporation by reference here. In order
to do that you must look at the 2 parts of the doc separately. If you look at the
handwritten portion, you can arg that that constitutes a holographic will that incorporates
by reference the typed portion appearing on the same page. Technically the requirement
that there be a reference here is met bc there is a reference to the typed material above.
Not all jurisdictions allow incorp by reference in these circumstances! In fact courts that
don’t permit incorp by reference in these circumstances are very critical of courts who
permit it
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4. Acts of Independent Significance: If the beneficiary or the property designations are
identified by acts or events that have a lifetime motive and significance apart from their
effect on the will, the gift will be upheld under the doctrine of acts of independent
significance
Acts of independent significance are life time events that might effect
(1) what property is passed under the will
(2) who the beneficiaries are in the will
UPC § 2-512 Events of Independent Significance (p. 318): A will may dispose
of property by reference to acts and events that have significance apart from their
effect upon the dispositions made by the will, whether they occur before or after
the execution of the will or before or after T’s death. The execution or revocation
of another individual’s will is such an event
Ex: You make a gift in your will saying I leave my car to my nephew Bob. At the time
you make your will you have a 1987 Ford. Later you buy a Porsche. Bob gets the
Porsche. This is an example of an act of independent significance that has an effect on
the will but the effect it will have on the will is not a motivating force behind the action.
Bob gets the car you have at the time of your death. (Note that had T said I want Bob to
have my 1987 Ford then Bob might be out of luck if you do not own that car at the time
of your death)
Ex: In your will you leave everyone in your employ $5000. You fire a cook that you’ve
had for years and years. You hire a new cook. You die 3 weeks later. Old cook gets
nothing. New cook gets the $5000 bc he’s in your employ at the time of your death
Ex: You give your niece the contents of your safe-deposit box. Throughout your life you
change the contents of the safe-deposit box. You put things in your safe-deposit box
generally bc you want to protect them not bc your niece will get the contents of the safedeposit box. Courts will recognize this as an act of independent significance – niece will
get that which is in the box when you die
Ex: You leave everything in the top right drawer of your desk to Sally. If the drawer is
locked (i.e. – there’s restricted access) the court will probably treat this as a gift under the
doctrine act of independent significance and give Sally the contents of that are in the
drawer at the time of your death (treating this very much like a safe-deposit box). If the
drawer is unlocked (i.e. – there’s unrestricted access to it) the court probably won’t
acknowledge that there’s a gift bc there’s not enough protection to prevent someone from
fiddling with its contents
Advise to clients
1) If they want to give a gift in will to a retired employee then they need to make that
gift separately
2) If want to leave the contents of a drawer, etc., to someone make sure that that the
drawer is secure (i.e. – that other people do not have unlimited access to it)
3) If want certain person to have the car that you have at the time of your death don’t
refer specifically to the make and model in the will (refer instead to a more general
description “car”)
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H. PROBATE OF LOST WILLS (p. 280)
In some jurisdictions, a will that is lost or is destroyed w/out T’s consent can be admitted
into probate if its contents are proved. A lost will can be proved by a copy in the lawyerdrafter’s office or by a secretary who typed the will or by clear & convincing evidence
There are a number of cases where T has safeguarded his will so well that no one can find it upon
T’s death. The will may turn up years down the road after the estate has been distributed under
the laws of intestacy.
To prevent this from happening T may want to:
1) Leave a copy with his/her attorney. Some courts do not approve of this practice!
2) It might make sense for the attorney to buy client a safety deposit box so that someone can
find his will after his her death
I. Contracts Relating to Wills (p. 319)
A person may enter into a contract to
(1) make a will, or
(2) not to revoke a will
Contract law not the law of wills, applies: The contract beneficiary must sue under
the law of contracts and prove a valid K. If, after a K becomes binding, a party dies
leaving a will not complying with the K, beneficiary is entitled to enforce the K by
having a constructive trust impressed for his benefit upon the estate or devisees of the
defaulting party
1. Requirements of Contract to make a Will
In many states, K to make a will must be in writing: In many states, a K to
make a will must be in writing. In these states, if the promisee is not entitled to
sue for specific performance, the promisee is entitled to receive the value to the
decedent of services rendered (quantum merit). The value decedent put on the
services in an oral agreement is evidence of the reasonable value of those services
In some states, K to make a will is specifically enforceable: In some states, oral
contract to make a will is specifically enforceable provided that the terms are
proved by clear and convincing evidence, the rendition of services is wholly
referable to the K, and the services are of such peculiar value to the promisor as
not to be estimated or compensable by any pecuniary standard
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UPC § 2-514 Contracts Concerning Succession (p. 322)
A contract to make a will or devise, or not to revoke a will or devise or to die
intestate, if executed after the effective date of this Article, may be established
only by:
(i)
provisions of a will stating material provisions of the K,
(ii)
an express reference in the will to a contract and extrinsic evidence
proving terms of the contract, or
(iii) a writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a presumption of a K
not to revoke the will or wills.
Problem 1 (p. 320): T makes a contract with A to leave everything to A at death
if A will take care of T for life. T executes a will leaving her estate to A.
Subsequently, A changes her mind and decides not to care for T. T rescinds the
contract. Upon T’s death is A entitled to take under T’s will?
If T doesn’t revoke the will, then the will is still valid. A is going to get
everything. Revoking the K to make a will has no have no impact on the
will if the will is validly executed. If T wants to cut A out all together he
will also have to revoke the will
Problem 2 (p. 320): A dies of AIDS. After A’s death, A’s roommate B claims ½
of A’s estate. B alleges that A promised to leave B ½ of his estate is B cared for A
for his life. B produces a document typed by B and signed by A and one witness
devising ½ of his estate to B. Is B entitled to ½ of A’s estate?
This is not a will because it is signed by only one witness. But B does not
have to prove that this is a will to prove that he’s entitled to ½ of A’s
estate. A entered into a contract with B to leave him half of his estate. So
here the court would say that although the writing was insufficient to make
a will, A did enter into a K with B to make a will. B will get ½ of A’s
estate here if he satisfies the court that he has satisfied his portion of the K
2. Contracts Not to Revoke a will
When do these cases arise? Contract not to revoke most often arise when husband and
wife have executed joint wills or reciprocal wills. Often when a husband and wife
execute these type of wills, they’re executed pursuant to a contract not to revoke a will.
The biggest problem is proving the existence of the contract.
What’s required? Most courts hold that a contract not to revoke a will is not enforceable
unless it’s proved by clear and convincing evidence. The mere execution of a joint will or
reciprocal wills does not give rise to a presumption of a contract
Main issue: Proving that a contract was created
What can you do to avoid the problem? Make reference to the contract in the will
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UPC § 2-514 Contracts Concerning Succession (p. 322)
A contract to make a will or devise, or not to revoke a will or devise or to die intestate, if
executed after the effective date of this Article, may be established only by:
(i)
provisions of a will stating material provisions of the K,
(ii)
an express reference in the will to a contract and extrinsic evidence proving terms
of the contract, or
(iii)
a writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a presumption of a K not to
revoke the will or wills.
Via v. Putnam (SCT of FL, 1995), p. 323
Facts: H and W executed reciprocal wills in 1985. H and W made agreements by
K that wouldn’t change gift over to children after first spouse dies. W dies after
they execute the wills. H remarries. H doesn’t change the will he made pursuant
to the K. H’s 2nd wife makes a claim against the state as an omitted spouse.
Children claim that they have rights a 3rd party beneficiaries under the K that the
residuary clause under the wills not be revoked (that their right’s trump Rachael’s
as an omitted spouse).
Held: Court decides that the value that is put on marital spouse is more important.
Court decides that 2nd wife gets to take ½ and the kids get to take ½.
The courts are divided about what to do in this situation (where it’s 3rd party
contract beneficiaries v. omitted spouse). Ultimately, it boils down to a policy
question
▪
Florida: Omitted spouse prevails over 3rd party beneficiaries of contract
▪
New York: 3rd party beneficiaries of contract prevail over omitted spouse (in
NY Rachael would get nothing in this scenario)
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CHP 5.
WILL SUBSTITUTES: NONPROBATE TRANSFERS
Will Substitutes: Ways you can pass your property that isn’t part of a will. A substantial
portion of your property will likely pass by will substitute
A. Payable-on-Death (POD) Provisions in Ks
What are POD contracts? Payable on death contracts (POD) include a wide
variety of contractual arrangements under which, on the death of a party to the K,
benefits are payable to one or more beneficiaries named to receive them in the K,
w/out regard to the terms of the decedent’s will or the jurisdiction’s intestacy
statutes. POD contracts include life insurance, annuities, deferred compensation
plans, partnership agreements, depository agreements, etc.
Rules: Changing beneficiary of Insurance Policy v. Contract with POD provision
1. Insurance policy
▪
Majority Rule: If the insurance policy lays out procedures for changing
beneficiary of life insurance policy (i.e. says that beneficiaries can only be
changed by notifying the insurance company) then that’s how it has to be done.
In the majority of jurisdictions if the insurance policy lays out lang for changing
a beneficiary of an insurance policy, a policy holder can’t change the beneficiary
by will
▪
If the insurance policy doesn’t specify how the beneficiary of the life insurance
policy to be changed then some jurisdictions allow the policy holder to change
the beneficiary by will
2. Contract with POD provision
If it’s a contract with a POD you have to know what the law of your jurisdiction is.
Some jurisdictions allow the beneficiary of a POD to be changed by will others do
not
UPC § 6-101 Nonprobate Transfers on Death, p. 337
(a) A provision for a nonprobate transfer on death in an insurance policy, K of
employment, bond, mortgage, promissory note, certificated or uncertificated security,
account agreement, custodial agreement, deposit agreement, compensation plan,
pension plan, individual retirement plan, employee benefit plan, trust, conveyance,
deed of gift, marital property agreement, or other written instrument of a similar
nature is nontestamentary. This subsection includes a written provision that:
(1) money or other benefits due to, controlled by, or owned by a decedent before
death must be paid after the decedent’s death to a person whom the decedent
designates either in the instrument or in a separate writing, including a will,
executed either before or at the same time as the instrument, or later
(2) money due or to become due under the instrument ceases to be payable in the
event of the death of the promisee or the promisor before payment or demand, or
(3) any property controlled by or owned by the decedent before death which is the
subject of the instrument passes to a person the decedent designates either in the
instrument or in a separate writing, including a will, executed either before or at
the same time as the instrument, or later
(b) This section does not limit the rights of creditors under other laws of this state
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 UPC § 6-101 does not require survivorship by POD beneficiary of contracts when
the beneficiary is a close relative of the benefactor the UPC antilapse statute, which
applies to nonprobate transfers as well at to will substitutes, the issue of the named
beneficiary who does not survive the benefactor. UPC § 2-706 (p. 338)
 UPC § 6-101 provides that if the K permits the owner to change the beneficiary by
will, the owner may do so. But if the power to change the beneficiary by will is not
retained, § 6-101 is silent on whether the beneficiary may be changed by will
Wilhoit v. People’s Life Insurance Co (7th Cir. 1955), p. 331
Facts: As designated beneficiary Sarah was entitled to receive the proceeds of her
husband’s Life Insurance Co Policy. She rejected an option that would have involved
leaving the proceeds with the Life Insurance Company in exchange for interest payments
at the min rate of 3% per annum. Instead, she elected to have the Life Insurance Co pay
the proceeds directly to her. 23 days after acknowledging receipt of the money she
returned it to the company w/ instructions to hold it for her, subject to withdrawal on
demand, at a min annual interest rate of 3.5%. The arrangement provided that the
remainder would be distributed to her brother if she dies before she has taken the full
amount of this money. Sarah’s brother predeceased her, but she did not change the
beneficiary in the arrangement. In a will she bequeathed the money held by the insurance
company to the son of her stepson. Sarah’s nephew (son of her deceased brother) said
that the money should go to him
Issue: Is this an insurance policy or a contract with POD provision?
Rule: If it’s an insurance policy the designation in the insurance policy controls. If it’s
not an insurance policy, but a payable on death provision, the beneficiary can be changed
in the will
Held: Court decides that this is not an insurance policy bc she cashed it in and then went
back and made an investment contract with the insurance company 23 days later. Court
concludes that this was instead a contract with a payable on death provision. Court holds
that this POD provision was altered by the will. Thus the son of Sarah’s stepson gets $
Significance: This case illustrates the difference between an insurance policy and a
contract with a payable on death provision. Courts will treat a contract w/ a payable on
death provision differently then it will treat an insurance policy
Estate of Hillowitz (NY 1968), p. 336
Facts: H was a partner in an investment club. A clause in the investment club’s
partnership agreement recited that in the event of death of any partner, his interest would
pass to his wife w/out any termination of the partnership agreement. Executor questions
the validity of this POD designation bc the designation in the partnership agreement
wasn’t executed with all the requirements of a will.
Held: Court says that this was a valid POD provision
Rationale: Court says that this is 3rd party beneficiary contract. Court says that this is a
validly executed K and thus the POD provision is a-okay. To make a will you don’t have
to have the witnesses or other formality requirements
Criticism: The court doesn’t give any guidance really as to why this was ok. Seems that
this case suggests that courts will have to determine on case by case basis of whether
there is a valid contract
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Cook v. Equitable Life Assurance Society (Indiana 1981), p. 339
Facts: Cook purchased a life insurance policy from Equitable in which he named wife
# 1 as the beneficiary. Cook and wife # 1 divorced. Divorce agreement says nothing
about the life insurance policy. Cook remarried and executed a holographic will in which
he left his life insurance policy to wife # 2 and his son Daniel.
Issue: May the beneficiary of an insurance policy be changed by will?
Rule: Beneficiary of a life insurance policy cannot be changed by will (Majority rule)
Held: Cook’s attempt to change the beneficiary in the life insurance policy failed bc the
contract provision dictating how the beneficiary of the policy to be changed controlled
(this is the majority rule). Cook didn’t change the beneficiary of the policy according the
procedures mandated by the policy, therefore, the beneficiary named in the policy (his
ex-wife) gets the money
Note: Cook case also follows the majority rule w/r/t revocation of a life insurance
beneficiary designation by divorce. Majority view is that divorce revokes a will in favor
of the spouse but does not revoke designation of the spouse as a life insurance
beneficiary.
§ 2-204 (p. 299) changes majority rule providing that divorce revokes designation of the
divorced spouse as beneficiary of an insurance policy or pension plan or other K
B. Multiple-Party Bank Accounts
Multiple Party Bank Accounts Include
▪
Joint and survivor account
▪
Payable on death account
▪
Agency account
▪
Savings Account Trust (Trotten Trust p. 349, note 3)
Joint bank account gives rise to a number of difficulties bc it’s used for a variety of
purposes
Red Flag: Important thing with these kinds of cases and figuring out who should have
access to the funds after one of the parties dies is to look t why the account was
established in the first place. Banks treat all accounts where two people have power to
draw on the account as joint accounts
Bank depositor “A” may open a joint account with “B” intending a:
(1) True joint tenancy account: Either A or B is to have power to draw on the account
and the survivor owns the balance of the account
(2) POD Account: B is not to have power to withdraw on the account during life but is
entitled to the balance upon A’s death (a POD account disguised as a joint account)
(3) Convenience account: B is to have power to draw on the account during A’s life but
is not entitled to the balance at A’s death (agency account disguised as a joint
account)
RULE: Where two signatures appear on a signature card for a bank account, the court
presumes that the parties intended to create a joint tenancy account unless the challenging
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party presents clear and convincing evidence that the depositor intended it to be a
convenience account or some other type of account. (In other words, the signature card
controls unless challenging party presents clear and convincing evidence to the contrary).
(Did non-depositor exercise control and authority over the account? Did depositor intend
non-depositor to have the funds after his death?)
Franklin v. Anna National Bank of Anna (IL 1986), p. 345
Facts: Elderly man’s eyesight is beginning to fail. He opens bank account with Cora to
facilitate his banking. He wanted a “convenience account” (so that she would have power to
drawn on the account during his life for him but would not be entitled to the balance upon his
death). Cora stops caring for Frank; Enola starts caring for him. Frank sends letter to bank
asking them to change signature card but bank doesn’t do so
Issue: Was this a true joint tenancy account or a convenience account? What was Frank’s
intent when he set up this bank account?
Held: Cora did not exercise authority or control over the joint account. No indication that
Frank intended her to have the funds after his death – esp where he wrote letter trying to put
Enola on the account instead
Note on Safety Deposit Boxes held by 2 people: Signature card says that both are joint
tenants with rights of survivorship. This would seem to transfer title, but most courts have
held that it does not. Courts have ruled that signature card doesn’t transfer title – it only
controls who has access to the box
UPC rules (p. 349, note 4)
C. Joint Tenancies
Classic Joint Tenancy: Family home; the spouses often hold the home as joint tenants
Why do people favor “joint tenancy” or “tenancy by the entirety”? Things held in
joint tenancy don’t pass through probate. Upon the death of one joint tenant or tenant by
the entirety, the survivor owns the property absolutely, freed of any participation by the
decedent (this means that the if the creditors are after H, his creditors can’t go after the
prop he and W own as joint tenants upon his death bc all his interest in the property
vanishes)
Changing ownership from joint tenancy to another form involves lots of formalities:
Its difficult to change form of ownership from joint tenancy to something else. To do so,
you have to sever the interest during your life time and you have to go through the formal
process of severing the interest and converting it to a tenancy in common (i.e. – you
cannot change it by will or w/out the consent of the other joint tenant).
D. Revocable Trusts (p. 351)
1. Definitions
Trust: Management relation whereby the trustee manages property for the benefit
of one or more beneficiaries. The trustee holds legal title to the property and
replace it with property through to be more desirable. The trustee owes fiduciary
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duties to the beneficiaries, including loyalty to them and prudence in investments.
If the trustee breaches one of these duties the trustee is personally liable to the
beneficiaries (p. 358)
Legal Title: Trustee’s interest in the trust
Equitable Title: Beneficiaries’ interest in the trust. A trust creates equitable
interests in beneficiaries enforceable against the trustee who has legal title
Inter Vivos Trust: Property that is held by one person for the benefit of another
and which is created by an instrument that takes effect during the life of the
grantor
Revocable Trust: Holding of property by one party for the benefit of another
pursuant to an instrument in which the creator reserves the right to revoke the
trust
2. Creating a Revocable Trust
RULE: A revocable trust can only dispose of property transferred to the
trust during life. Settlor also cannot transfer to the trust property the settlor does
not have
Exception: The rule that a trust cannot dispose of property acquired after the trust
is executed which is not transferred to the trust can be circumvented by executing
a will pouring over after-acquired property into the trust (this is why a pour-over
will is a good idea when the settlor wants to dispose of all her property at her
death)
Revocable Trusts Inter vivos fall into 2 categories
1. Trustee = 3rd person
2. Trustee = settlor
(A) TRUSTEE = 3RD PERSON
How do you create revocable trust making a 3rd person trustee?
Revocable trust which makes a person trustee is created by a deed of trust.
Deed of trust: Settlor transfers legal title to property to another person as
trustee pursuant to a writing in which the settlor retains the power to
revoke, alter, or amend the trust and the right to trust income during
lifetime. On the settlor’s death, the trust assets are to be distributed to or
held in further trust for other beneficiaries. The settlor may also reserve an
income interest and a testamentary power of appointment
(B) TRUSTEE = SETTLOR
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How does a settlor create a revocable trust in which he is the trustee?
Settlor creates a revocable trust in which he is the trustee by making a
“revocable declaration of trust”
Revocable declaration of trust: Settlor declares himself the trustee for
the benefit of himself during lifetime, with the remainder to pass to others
at his death
Main Issue: The question in a revocable declaration of trust, where the
settlor is trustee, is: Does the settlor owe any fiduciary duties to anyone
other than himself? In other words, has the settlor created an equitable
interest in anyone other than himself?
If T has not created an equitable interest in anyone other than
himself then there is no trust because the settlor remains the
absolute owner of the property
Substantial compliance with requisite formalities: If T substantially complies with the
requisite formalities the revocable trust is valid (this is the Farkas v. Williams rule)
Farkas v. Williams (IL 1955), p. 352  Substantial Compliance / Insurance policy
analogy
Facts: T bought stock in mutual funds. Instead of having the stock certificates issued in
his own name he had them issued to “Albert Farkas, as trustee for Richard Williams.”
Each certificate was issued pursuant to a written declaration of trust. Farkas retained
power to revoke the trust and the power to vote, sell, redeem, exchange, or otherwise deal
with the stock. In short, he reserves a lot of power w/r/t this stock
Issue: Is this a valid trust?
Sub-issue # 1: Did Williams acquire a present interest in the stock at the time the trust
was created?
Rule: If no interest passed to beneficiary of trust before T’s death, the intended trusts are
testamentary. If the formalities of the wills act have not been met then the disposition is
invalid
Held: This is hard question to figure out
Sub- issue # 2: Did T intend to make just a testamentary disposition or did T give up
some element of control over the stock so that this wasn’t just a testamentary diposition?
Held: Because Farkas had impaired alienabilty and owed a fid duty to Williams, T did
give up some element of control over the stock so that it wasn’t just a testamentary
disposition
Conclusion: These trust declarations by Farkas constituted valid inter vivos trusts and
were not attempted testamentary dispositions
What really motivates the court to say that this is a valid trust? Court looks to the
fact that Farkas substantially complied with all the requirements (written, retained by
stock company, evidence of what T intended through the written declarations of trust).
Court says that there is not a whole lot of difference between setting up this revocable
trust and setting up a beneficiary on an insurance policy. Court says this is analogous to
an insurance policy situation
Note: It seems like the court is coming up with reasons why Farkas succeeded in setting
up a trust. This is not a clear-cut decision
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3. Revoking an Revocable Trust
Why do courts require greater degree of evidence to revoke a trust than a will?
▪
Will  prop is not affected while you’re alive bc a will is not operative until you die
▪
Inter vivos trust  inter vivos trust is operative while you’re alive, the prop that’s in it can be affected
while you’re alive
▪
Court has to unravel lots of transactions to revoke a trust; courts don’t like to do that
Manner of Revoking Trust:
(a) Restatement of Trusts says that if the trust does not specify the manner in which the
trust is to be revoked, then the trust can be revoked in any reasonable way
(b) When settlor states in trust that the trust is supposed to be revoked in a particular way
(i.e. – by the execution of a subsequent writing) that’s how it has to be revoked. (see
In re Estate and Trust of Pilafas, Uniform Trust Act, Restatement of Trusts)
Uniform Trust Act § 602(c)(2) provides that a revocable trust may be revoked,
“unless the terms of the trust expressly make the specified method exclusive, by a
will or any other method manifesting clear and convincing evidence of the settlor’s
intent
Restatement (Second) of Trusts § 330 A trust is only revocable if the settlor
expressly reserves a power to revoke and the terms of the trust expressly reserves a
power to revoke, and the terms of the trust strictly define and limit the reserved power
of revocation
(c) Revoking trust by will where the settlor is trustee??????
In re Estate and Trust of Pilafas (AZ 1992), p. 361
Facts: T executed a trust agreement which required that revocation of the trust be in
writing. T got divorced. T changed some of the dispositions in the trust so that they were
more favorable to 3 kids he had previously cut out. T had original will and trust
document. When T a copy of the trust couldn’t be found. One of T’s kids arg that bc it
couldn’t be found presumption should be that T revoked the trust and therefore that his
estate should pass through the laws of intestacy
Issue: When a settlor reserves a power to revoke his trust in a particular manner, can he
revoke it only in that manner?
Rule: When settlor reserves power to revoke trust in a particular manner, he can only
revoke it in that manner
Held: Here no evidence that T revoked it in the manner stated (writing that saying trust
revoked). Therefore court says that the trust remains valid
4. Creditors’ Rights w/r/t assets held in a revocable trust: Where a revocable trust is
involved, creditors can reach any assets that are in the trust over which T could reach during
his lifetime by revoking the trust. Creditors cannot reach assets in trust which T could not
reach during his lifetime (i.e. – company benefits that are POD)
State Street Bank & Trust Co. v. Reiser (MA 1979), p. 368
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Facts: T creates a revocable trust in 1991. He puts the stock of 5 closely held Corps in
the trust. He also executes a will that pours over his residuary estate into the revocable
trust. 1 yr later he applies to bank for a loan. He tells the bank that he owns the
controlling interest in the 5 closely held Corps but doesn’t tell bank that he put the stocks
of these corps in trust. Bank gave him an unsecured loan for $75,000. 4 months later he
dies in an accident. His estate is insufficient to pay back the $75,000 loan. Bank wants to
reach into the trust to get its money
Issue: Since the settlor’s ability to revoke the trust and reach the trust assets ended upon
his death can the creditors (bank) still reach those assets?
Rule: Where a revocable trust is involved, creditors can reach any assets that are in the
trust over which T could reach during his lifetime by revoking the trust. Creditors cannot
reach assets in trust which T could not reach during his lifetime (i.e. – company benefits
that are POD)
Held: Assets owned by the trust up to the time of T’s death, can be reached by T’s
creditors (the bank)
Note: Nonprobate assets are not all treated alike. Life insurance proceeds or retirement
benefits are usually exempt from the insured’s creditors if payable to a spouse or child.
US savings bonds with POD beneficiary may be exempt. Creditors of a joint tenant
holding a joint tenancy in land cannot reach the land after the joint tenant’s death because
the deceased joint tenant’s interest has vanished.
5. Exam Tips on Revocable Trusts
▪
▪
▪
Revocable trust can be invalid for same reason that a will can be invalid:
(1) Lack of capacity / insane delusion
(2) Undue Influence
(3) Fraud
(4) Duress
There can be no trust w/out trust property. The exception to this rule is if the
“unfunded trust” is the devisee under the settlor’s pour over will. The Uniform
Testamentary Additions to Trusts Act validates the trust – and the pour over to it –
w/out regard to whether the trust otherwise had corpus
If the Uniform Testamentary Additions to Trust Act is not applicable (i.e. – the trust
is not a devisee under a pour over will), the trust has the property, the trust will be
invalid if it testamentary and the formalities required for the valid execution of a will
were not met
6. Pour-over Wills: T puts clause in his will that the residue of his estate will pour-over
into a trust
Why might T want to use a “pour over” will? Pour-over will of probate assets
into an inter vivos trust is a useful device where O wants to establish an inter
vivos trust of some of his assets and wants to merge after his death his
testamentary estate, insurance proceeds, and other assets into a single receptacle
subject to unified trust administration (p. 372)
Ex: O sets up a revocable inter vivos trust naming X as trustee. O transfers to X,
as trustee, his stocks and bonds. O then executes a will devising the residue of his
estate to X, as trustee, to hold under the terms of the inter vivos trust.
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Original version of uniform pour-over act: Validates a pour-over of assets into an inter
vivos trust only if the trust instrument is executed (signed) before or concurrently with
the will. The uniform act does not require that some property be transferred to the inter
vivos trust during life. If the trust is executed before or concurrently with the will, the
probate assets can be poured over into the inter vivos trust subsequently amended. The
trust established at death by pour-over is treated as an inter vivos trust (in that it’s treated
as having come into existence before T’s death). The purpose of this magical
transformation is to give pour-over trusts the advantage of inter vivos trusts (p. 374)
UPC § 2-511 Testamentary Additions to Trusts (1990) (p. 373) (Uniform Testamentary Adds
to Trust Act)
(a) A will may validly devise property to the trustee of a trust established or to be
established
(i)
during T’s lifetime by T and some other person, or by some other person,
including a funded or unfunded life insurance trust, although the settlor has
reserved any or all rights of ownership of the insurance contracts, or
(ii)
at T’s death by T’s devise to the trustee, if the trust is identified in T’s will
and its terms are set forth in a written instrument, other than a will, executed
before, concurrently with, or after the execution of T’s will or in another
individual’s will if that other individual has predeceased T, regardless of the
existence, size, or character of the corpus of the trust. The devise is not
invalid because the trust is amendable or revocable, or because the trust was
amended after the execution of the will or T’s death
(b) Unless T’s will provides otherwise, property devised to a trust described in
subsection (a) is not held under a testamentary trust of T, but it becomes part of the
trust to which it’s devised, and must be administered and disposed of in accordance
with the provisions of the governing instrument setting forth the terms of the trust,
including any amendments thereto made before or after T’s death
(c) Unless T’s will provides otherwise, a revocation or termination of the trust before T’s
death causes the devise to lapse
1990 version of the uniform pour-over act: Deleted the requirement in the original
uniform pour-over act that the trust instrument be executed before or concurrently with
the will (p. 374)
Ex: T’s will can pour-over T’s probate assets to “a trust with the First
National Bank as trustee, which I will execute,” if T thereafter executes the
trust instrument
Problem 2 (p. 374): Wendy Brown’s Aunt Fanny, who has a house full of things, executes a
trust deed that names Wendy as trustee and provides that Wendy shall distribute the trust
property in equal shares to Wendy Brown, Lucy Lipman, Simon Preston, and Ruth Preston.
The trust deed provides that the trust can be revoked or amended at any time by a written or
oral communication to Wendy from Aunt Fanny. No property is transferred to the trust during
Aunt Fanny’s life. Aunt Fanny subsequently makes a will pouring over all her property into
this trust. Then, Aunt Fanny invites Wendy for a visit and tells Wendy exactly what item she
wants to go to whom. After Wendy returns home, Aunt Fanny writes Wendy a letter saying
that she is preparing a memorandum about the family silver and heirlooms that will state who
is to get what. Upon Aunt Fanny’s death, such a memorandum is found. Assume that the
Uniform Additions to Trusts Act (1990) is the law in this jurisdiction. What diposition is
made of Aunt Fanny’s estate?
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Issue # 1: Is this a valid trust?
Analysis: This would be valid bc Wendy knows how the property is going to be
distributed bc Fannie told how the property is to be distributed. Also T has manifested an
intent to set up a trust in the trust deed. This is ok even though this is some what
unorthodox – walking around the room saying this goes to Howard, that over there goes
to Frank, etc.)
Issue # 2: What about the memorandum? Will the memorandum amend the trust
effectively?
Analysis: If Wendy hasn’t seen the memo then there probably has not been an effective
“communication” between Wendy and Fannie. It’s up to the court to determine what the
word “communication” means. Communication is two-sided. It’s all going to come
down to how the court defines the word communication and if what transpired between
Wendy & Fannie qualifies as a “communication”
7. Effect of Divorce w/r/t Pour-Over Will
Clymer v. Mayo (MA 1985), p. 375
Facts: T executed a will and trust under which her husband is the primary beneficiary.
The trust instrument creates two trusts: (1) Trust A (marital trust), and (2) Trust B (nonmarital trust). Same day she executes trust she changes beneficiary on life insurance
policy and retirement contracts. She makes pour over provision in will to pour those
assets into trusts she creates upon her death. She doesn’t assign any specific trust to the
property when she creates it – so at the time of its creation the trust is unfunded. T
divorces husband. Divorce docs don’t reference the trust (i.e. – it doesn’t explicitly
waive husband from being beneficiary under the trust). T does not change trust before she
dies. Ex husband says he’s entitled to the money. T’s parents say no way, divorce ended
ex-husband’s right to be beneficiary
Issue # 1: Is the trust valid
Held: This trust is valid, even though unfunded at the time of its creation, bc it does
entitle the beneficiaries with right to receive stuff such as the insurance proceeds and
retirement proceeds
Issue # 2: Is T’s ex-husband entitled to the money under the trust?
Held: Ex-husband is not entitled to the money in Trust A bc the purpose of the trust is
impossible to achieve since the couple is no longer married (i.e. – trust was made to get a
tax advantage). Ex-husband is not entitled to the money under Trust B when looking at
the Will and Trust as two parts of one estate plan. Ex-husband’s nieces and nephews are
entitled to get the windfalls
Rationale: Court looks at statutes that stipulate that a will in favor of spouse is revoked
upon divorce. Court liberally construes divorce statutes to apply to trust – taking the
stance that if T is out of the will bc of statutes then he should also be out of the trust.
Court takes this view in light of the fact that Trust and Will formed two parts of one
estate plan – pour over trust. The court could have easily come out the other way on this
Note: If the court wanted to follow the statute technically it could have said that the
statutes dealing with what happens to testamentary dispositions upon divorced don’t
apply to trusts – bc technically those statutes make no mention of trusts
Note: Statutes in some states provide that divorce revokes any proivions in a
revocable trust for the spouse. Ex spouse is deemed to have predeceased the
settlor
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UPC § 2-804 (p. 385)
▪
Provides that divorce revokes dispositions in favor of the divorced spouse in a
revocable inter vivos trust as well in other revocable will substitutes such as
life insurance, pension plans, POD contracts
▪
Also revokes any provision for a relative of the divorced spouse
What would the result in Clymer v. Mayo under UPC § 2-804? Yes – at least
w/r/t to the ex-husband’s nieces and nephews
“Unfunded life insurance trust”: Where a settlor names the trustee of her inter
vivos trust the beneficiary of her life insurance policy, but does not add any other
funds or assets to the trust (Clymer v. Mayo). The trust “res” or “property” (a
necessary ingredient for a valid trust) is the trustee’s contingent right to receive
the proceeds of the policy. That is a valuable property right bc if the insured dies
w/out changing the policy beneficiary the trustee will be entitled to the policy
proceeds. Unfunded insurance trust has independent significance since it disposes
of non probate assets (the life insurance proceeds) (p. 385)
“Funded inter vivos trust”: The trust created if T adds assets to the inter vivos
trust. A funded revocable trust has independent significance bc the trust
instrument disposes of the assets transferred to the trust during life
Means of creating a unified trust of both life insurance proceeds and probate
assets
▪
couple unfunded revocable life insurance trust with pour-over will. The
resulting trust is called an inter vivos trust
▪
create trust in the will and designate as beneficiary of the insurance proceeds
“the trustee named in my will.” The resulting unified trust is a testamentary
trust bc it’s created by will, not by an inter vivos instrument
8. Use of Revocable Trusts in Estate Planning
a. Introduction
Two ways a revocable trust can be created
1. Declaration of trust: A revocable trust can be created by a declaration of
trust whereby the settlor becomes the trustee of the trust property. In the
trust instrument the settlor should name a successor trustee to take over the
trusteeship upon the settlor’s death or incompetency. Where the trust is to
end on the settlor’s death, and the trust is merely a means of avoiding
probate, the death beneficiary should ordinarily be named trustee. At the
settlor’s death, the successor trustee automatically takes over, w/out court
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order, and distributes the property to trust beneficiaries (Farkas v.
Williams, In re Estate and Trust of Pilafas)
2. Deed of Trust: A revocable trust can be crated by a deed of trust naming a
3rd party as trustee. The settlor can be co-trustee if he/she so desires
Funded v. Unfunded distinction
▪
State Street Bank & Trust Co v. Reiser – settlor transferred stock to trust
▪
Clymer v. Mayo – benefits of life insurance proceeds and retirement
benefits supposed to go into trust upon T’s death
b. Consequences During Life of Settlor
(1) Property management by fiduciary
(2) Keeping title clear
(3) Income and gift taxes
(4) Dealing with incompetency
c. Consequences at Death of Settlor: Avoidance of Probate
(1) Costs
(2) Delays
(3) Creditors
(4) Publicity
(5) Ancillary probate
(6) Avoiding restrictions protecting family members
(7) Avoiding restrictions on testamentary trusts
(8) Choosing law in another jurisdiction to govern
(9) Lack of certainty in the law
(10) Avoiding will contests
(11) Estate Taxation
(12) Controlling surviving spouse’s disposition
(13) Custodial trusts
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Chp 6
CONSTRUCTION OF WILLS
A. Admission of Extrinsic Evidence
1. Interpretation of Wills
Issue: Under what circumstance will the court admit extrinsic evidence to
determine what’s meant in a will?
Plain Meaning Rule (Majority Rule): A plain meaning in a will cannot be
disturbed by the introduction of extrinsic evidence that another meaning was
intended. Only where there is an ambiguity will the court allow extrinsic evidence
to determine what was meant. This rule is sometimes called the “no-extrinsic
evidence rule.” (p. 410)
Holmes’ standard: Holmes believed that the proper standard was not what the
writer meant to say but “what he meant by what he did say” . . . “we ask what
those words would mean in the mouth of a normal speaker of English, using them
in the circumstances in which they were used, and it is to the end of answering
this question that we let in evidence as to what the circumstances were.” (p. 414)
Mahoney v. Grainger (MA 1933), p. 410
Facts: T went to lawyer to draft a will. T said that she wanted her estate to go to her
“heirs living at her death.” She tells the lawyer that her nearest relatives are her 25 first
cousins. Under the laws of decent and disposition her aunt qualified as her heir. T’s
cousins try to admit extrinsic evidence that T meant them, not the aunt when she used the
word “heirs”
Clause at issue: Residuary clause which stated: “All the rest and residue of my estate,
both real and personal property, I give, devise, and bequeath to my heirs at law living at
the time of my decease, absolutely; to be divided among them equally, share and share
alike”
Issue: Is what’s meant by the term “heirs at law” clear on it’s face or is it ambiguous?
Held: “Heirs at law” is not an ambiguous term therefore the cousins cannot introduce
extrinsic evidence to prove its meaning
Note: Not clear if attorney’s failure to do his homework here rises to the level of
malpractice. Today it is very likely that a malpractice action would be brought. It’s also
more likely today that a court would be more likely to correct errors made by attorneys
such as the one made here
In re Estate of Smith (IL 1990), p. 412
Facts: T left a bequest to “Perry Manor, Inc., Pinckneyville, IL.” At the time the will was
executed, Perry Manor, Inc., a Nevada corp, operated a nursing home called Perry Manor
in Pickneyville. Before T died, Perry Manor, Inc., sold the nursing home to Lifecare
Center of Pickneyville, Inc. Lifecare continued to operate the nursing home and
continued to call it Perry Manor
Issue: Is “Perry Manor, Inc, Pickneyville, IL” ambiguous? Should the court admit
extrinsic evidence?
Held: Bequest went to the Nevada corporation, which alone fit exactly the description of
the legatee “Perry Manor, Inc.” Court said that the words “Pinckneyvill, IL” which were
not capitalized, merely described the location of the named legatee at the time of
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execution. Hence there was no ambiguity and extrinsic evidence of T’s intent was
inadmissible
Personal Usage Exception: If the extrinsic evidence shows that T always referred to a
person in an idiosyncratic manner, the evidence is admissible to show that T mean
someone other than the person with the legal name of the legatee (p. 413)
Moseley v. Goodman (TN 1917), p. 413
Facts: In a list of bequests, T left $20,000 to “Ms. Mosely.” Mrs. Lenore
Mosely, the wife of the cigar store owner where T traded, but whom T
had never met, claimed the bequest. T called Mrs. Lillian Trimble Mrs.
Mosely. Trimble’s husband was a salesman in Mosely’s cigar store and
was called “Mosely” by T and his wife. Mrs. Trimble managed the
apartment house where T lived and did kind things for him
Issue: Can extrinsic evidence be admitted to show who T really wanted
to leave the money to?
Held: Bequest went to Mrs. Lillian Trimble, whom T called Mrs.
Mosely.
Problem 2 (p. 412) T left a bequest to “Perry Manor, Inc. At the time the will was
executed, Perry Manor, Inc., a Nevada corp, operated a nursing home called Perry Manor
in Pickneyville. Before T died, Perry Manor, Inc., sold the nursing home to Lifecare
Center of Pickneyville, Inc. Lifecare continued to operate the nursing home and
continued to call it Perry Manor. What result? Does it go to the nursing home or does it
go to the corp?
- Court, applying plain meaning rule, says that Perry Manor, Inc. gets the $ bc
its name “Perry Manor, Inc.” matches that put in the will
- This ambiguity could be resolved by extrinsic evidence but there is no
ambiguity in the lang of the will according the court bc there is a Perry
Manor, Inc.
- This problem illustrates that you have to be careful when you’re naming a
beneficiary in a will. You lawyer or testator need to research to makes sure
that the name you’re putting down accurately describes the name of the
person or entity bc as this problem illustrates someone you didn’t intend to
get the money could get it
Fleming v. Morrison (MA 1904), p. 414
Facts: T had his attorney draft a will. Attorney witnessed T sign the will and then the
attorney signed the will as a witness. Immediately after this, T told attorney that the will
was a fake made to induce a particular woman to sleep with him. T then had two more
witnesses sign it (MA law required that will be signed by 3 disinterested witnesses). At
trial court admits testimony of T’s attorney that T did not intend this to be his will
Held: Will not valid
Rationale: T lacked the requisite testamentary intent (he did not intend this to be his will)
Note: Here the court is more willing to admit extrinsic evidence bc this isn’t a
circumstance that will happen very often (compared that that in Problem 2 which would
undoubtedly result in tons of litigation)
Estate of Russell (CA 1968), p. 417
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Facts: Holographic will said “I leave everything I own Real & Personal to Chester Quinn
and Roxy Russell.” She also left $10 gold piece and diamonds to her niece (her only
heir-at-law). Roxy Russell was T’s dog. Roxy died before T. T had another dog named T
at the time of her death. At trial Chester introduces some evidence that T didn’t want to
die intestate (address books, discussions he had with T)
Procedural History: Extrinsic evidence was introduced to establish Roxy’s identity. TC
found that it was T’s intention that Chester was to receive the entire residue and that the
gift to Roxy was merely precatory in nature. Niece appealed arg that the gift of ½ of the
residue to a dog was clear and unambiguous that it was therefore void and that it thus
passed to her under the laws of intestacy. Niece further arg that extrinsic evidence
shouldn’t be admitted bc it did not cure the invalidity of the gift
Issue: What did T mean that everything goes to Chester & Roxy? Should extrinsic
evidence be admitted?
Held: A distribution in equal shares to two persons cannot be said to be for one to use
whatever portion is necessary in behalf of the other. No extrinsic evidence should be
admitted which would lead to a meaning to which the will was not reasonably
susceptible. The gift to Roxy was void – Roxy’s gift lapsed and passed to the heirs at law
by intestacy
 CA court rejects plain meaning rule. CA court adopts Holmes’ view and figure out
what T meant by “everything goes to Chester and Roxy.” It’s far from clear that the
lang says that Roxy and Chester take in equal shares – the lang clearly doesn’t
support that conclusion so it’s not clear where the court came up with it
Some courts admit/not admit extrinsic evidence based upon the kind of ambiguity
that appears in the will (patent v. latent ambiguity) (p. 424, note 2)
(1) Latent Ambiguity
▪
What is it? Ambiguity that does not appear on the face of the will but appears
when the items of the will are applied to T’s property or designated beneficiaries
▪
Extrinsic Evidence allowed? Yes. Courts usually admit extrinsic evidence to
resolve latent ambiguities
Example: Will provides that “I leave $100,000 to my niece Barbara.” T has 2
nieces named Barbara. In this circumstance the court would permit the admission
of extrinsic evidence to show which Barbara T meant
Ihl v. Oetting (Mo. 1984) – T devised his home to “Mr. and Mrs. Wendell Richard Hess,
or the survivor of them, presently residing at No. 17 Barbara Circle.” When the will was
executed in 1979, Wendell Hess and his wife Glenda resided at No. 17 Barbara Circle.
Soon thereafter Wendell divorced Glenda. They sold No. 17 Barbara Circle, and Wendell
married Verna. In 1983, relying on the rule that a will speaks at the time to T’s death,
claimed that “Mrs. Hess” share of the devise. She arg that no extrinsic evidence should be
admitted. Court found that the latent ambiguity arose from the description of the
beneficiaries residing at “no. 17 Barbara Circle.” Verna Hess met the description of Mrs.
Wendell Richard Hess at the time of T’s death but she never resided at No. 17 Barbara
Circle. Glenda met the description of the Mrs. Hess residing at No. 17 Barbara Circle
when the will was executed but she no longer met that description at the time of T’s
death. Court admitted extrinsic evidence that, the court decided, showed an intent that
Glenda – who shared a common interest in antiques with T – take
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(2) Patent Ambiguity
▪
What is it? Ambiguity that appears on the face of will
▪
Extrinsic Evidence allowed? No. Courts usually won’t let you admit extrinsic
evidence (court may decide to correct the mistake depending upon what it is or
courts will construe the lang of the will w/out the aid of extrinsic evidence)
Example: T leaves will stating “I leave my entire estate 25% to each of 3
charities.” Here the court won’t admit extrinsic evidence but will just change the
numbers to 33%, 33%, 33%
2. Correcting Mistakes
Issue: What happens if the court finds out that there is a mistake? Should the
court correct it?
Traditional View: Courts cannot correct mistakes in wills (# of exceptions)
Exceptions:
(1) Misdescription of property or person: A well-established principle is that a
mere false description does not make the instrument inoperative. A false
description of property or of the intended recipient may be stricken
Example: T devised “lot number 6 in sq 403” to his brother. T owned no lot so
numbered, but owned 3 in sq 406. Court struck the misdescription and held that the lot
owned by T passed to his brother (p. 427)
Example: T bequeathed her residuary estate equally to her “nephew Raymond Schneikert
and Mabel Schneikert his wife.” Raymond’s wife was named Evelyn. After hearing
evidence that T intended Evelyn to be the legatee, the court struck the misdescription
“Mabel Schneikert,” leaving a bequest to “Raymond Schneikert and his wife.”
(2) Scrivener’s Errors (Mistakes made by the attorney in drafting)  Court
will correct (Erickson v. Erickson)
Erickson v. Erickson (CT 1998), p. 427
Facts: T executed a Will , 2 days before he got remarried. T had 3 kids from
previous marriage. The will left everything to his new wife. T died 8 years later.
T’s kids claimed that the will was invalid bc it didn’t provide for the contingency
of marriage. Probate ct refused to admit extrinsic evidence of T’s intent, but held
that the circumstances surrounding the execution of the will demonstrated that it
did provide for the contingency of marriage (i.e. – T wrote will before marriage
bc he and wife # 2 were leaving for honeymoon immediately after marriage
ceremony; while ill T received number of reassurances from lawyer that will was
a-okay, etc.)
Issue # 1: Does the will provide for the contingency of marriage? If not should
extrinsic evidence be allowed?
Rule: Can only look to the four corners of the will to see if will provides for the
contingency of marriage (no extrinsic evidence allowed). If it does, then the will
is valid. If it doesn’t provide for the contingency of marriage, then the will is
invalidated upon T’s marriage.
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Issue # 2: Should the court correct the scrivener's error? Should extrinsic
evidence be admitted to prove that there was a scrivener’s error?
Rule: Extrinsic evidence to show that attorney made mistake in drafting
(scrivener’s error) can be admitted and the court will correct scrivener’s errors


court is limiting its willingness to correct mistakes to those that attorney drafting the
will made
this is win-win situation bc will carry out T’s intent and reduce malpractice claims
B. Beneficiary Predeceases T (p. 439)
(LAPSE & ANTI-LAPSE & SUBSTITUTE GIFTS )
Issue: What happens to a gift when a beneficiary predeceases T? Who gets it?
Drafting Advise: You should make the client’s intent clear by providing what happens if the
intended devisee predeceases T. If there is a gift over to devisee # 2 upon the death of devisee # 1
then you should provide what happens to the gift if devisee # 2 predeceases T
Ex: “To A if A survives me, but if A does not survive me, to B if B survives me, and if both A and
B do not survive me, to be added to the residue of my estate.
Common law of LAPSE: All gifts made by will are subject to a requirement that the
devisee survive T. If a devisee does not survive T, the devise lapses (fails)
1) SPECIFIC DEVISE OR GENERAL DEVISE: Under the CL, if a specific device or
a general devise lapses, the devise falls into the residuary clause
Ex: T’s will bequeaths her watch (a specific bequest) to A and $10,000 (a
general bequest) to B. The residuary devisee is C. A and B predecease T. The
watch and the $10,000 go to C.
2) RESIDUARY DEVISE
(a) If all residuary devisees predecease T: Under the CL, if the devise of the
entire residue lapses bc the sole residuary clause devisee or all the
residuary devisees predecease T, T’s heirs take by intestacy
(b) If some but not all of the residuary devisees predecease T (“Noresidue-of-a-residue rule”): Under the CL, if a share of the residue
lapses, such as happens when 1 of 2 residuary devisees predeceases T, the
lapsed residuary share passes by intestacy to T’s heirs rather than to the
remaining residuary devisees


The no-residue-of-a-residue rule probably doesn’t carry out the average T’s intent
In majority of states, the no-residue-of-a-residue rule has been overturned by statute
(such as UPC § 2-604(b)) or judicial decision.
Ex: After making several specific & gen devises to a number of persons, T devises
the residue of her estate ½ to B and ½ to C. B predeceases T. B’s ½ share goes to T’s
heirs, not to C.
3) CLASS GIFT: Under the common law of lapse, a class gift is treated differently from a
gift to individuals. If a class member predeceases T, the surviving members of the
class divide the total gift, including the deceased member’s share
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How is a class gift created? A class label is not necessary to create a class gift.
Beneficiaries described by their individual names, but forming a natural class may be
deemed a class gift if the court decides, after admitting extrinsic evidence that T would
want the survivors to divide the property. (Can be a class if there is a common thread
that ties the beneficiaries together). Sometimes courts construe what constitutes a class
broadly other times they do it narrowly – all depends upon how court values T’s intent v.
language in will.
Ex: T bequeaths $10,000 to the children of A (a class gift). One child of A, named Billy,
predeceases T. At T’s death T is survived by another child of A (named Charles). Because this is
a class gift, C takes B’s share and thus gets the entire $10,000.
Dawson v. Yucus (IL 1968), p. 449
Facts: T inherited farmland from her husband. One of the husband’s nephews predeceased T. T
didn’t change her will. T’s will had a residuary clause that left remainder of estate to Ida May and
Hazel
Clause at issue: believing as I do that those farmlands should go back to my late husband’s side
of the house, I therefore give, devise and bequeath my (1/5) interest in the said farm lands as
follows: One-half (½) of my interest therein to Stewart Wilson, a nephew, now living in . . . and
One-half (½) of my interest to Gene Burtle, a nephew no living in .. .
Issue: Did T create a class gift?
Held: The language in the will did not create a class gift. The ½ share that Gene was supposed to
get lapses and falls into the residuary clause (Ida and Hazel get it)
Rationale: Court says class gift not created bc T didn’t use class label. T only left gift to 2 of the
husband’s 5 nieces and nephews – this makes it look like a gift to individuals not to a class. Nellie
knew how to create class gift or survivorship condition bc she did it in other parts of the will.
Court adds this all up and says no class gift created here
In re Moss (England 1899), p. 454
Facts: Elizabeth (T’s niece) predeceased T. Wife’s will gave the residuary of her estate to Mr.
Kingsbury. At Elizabeth’s death, all 5 of the children of Emily Walter were living and had attained
the age of 21
Clause at issue: T gave all his share or interest in the Daily Telegraph newspaper to his niece
Elizabeth and his wife “upon trust to pay the income thereof to my said wife for her life and after
her decease, upon trust for Elizabeth (niece) and the child or children of his sister Emily Walter
who shall attain the age of 21 years equally to be divided between them as tenants in common.”
He gave the residue of his estate and effects to his wife
Issue: Whether in consequence of Elizabeth’s death in T’s lifetime, the share bequeathed to her
had lapsed and fallen into his residuary estate or whether the entirety passed to his sister’s five
kids? Was the gift by T of his Daily Telegraph share a gift to a class? Or was this gift to an
individual that passed into the residuary clause?
Held: This was a class gift (Elizabeth and his sisters kids = all his nieces and nephews = a natural
class). Emily’s kids divide all the interest in the newspaper (including the portion that was to go to
Elizabeth) among them
Note: It doesn’t matter that one of the nieces/nephews and others weren’t
Heads-up! You don’t have to give an equal share to all members of the class for it to
be a class
4) VOID DEVISE: Under the CL, if a devisee is dead at the time the will is executed, the
devise is void. Same gen rules governs void devises as govern lapsed devises
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CAUTION: These CL rules are default rules; they apply only if the will does not
provide what happens when a beneficiary predeceases T
ANTI-LAPSE STATUTES
A. Anti-lapse statute typically provides: If a devisee if of a specified relationship to T
and is survived by issue, who survive T, the issue are substituted for the predeceased
issue. Anti-lapse statues apply only if the devisee bears the particular relationship to T
specified in the anti-lapse statute (this will only save gifts where the devisee is in a
certain degree of relationship to T)
B. UPC § 2-605 Antilapse; Deceased Devisee; Class Gifts (p. 441): This anti-lapse
statute applies only to devises to a grandparent or a lineal descendent of a
grandparent (this means that you have to be in the first two columns of the
consanguinity chart). If you fall into that group and you die before T then the antilapse statute will save the gift so long has you have living descendants.
C. Anti-lapse statutes don’t apply to spouses, in-laws, friends. They only apply to
blood relatives in a particular degree of relationship to you (as set forth by the statute)
D. Effect of an Anti-Lapse Statute on a Lapsed Gift: Anti-lapse statute do not prevent
a lapse, they merely substitute other beneficiaries (usually issue) for the dead
beneficiary if certain requirements are met
E. How do anti-lapse statutes change the common law? Anti-lapse statutes change
the common law by giving a gift that was supposed to go to a devisee who
predeceased T to the devisee’s gift to his issue. The assumption is that most of the
time T would want the gift to go to the deceased devisee’s issue
F. Can T elect to have the anti-lapse statutes not to apply? If so what happens to
the gift if the beneficiary predeceases T and T has not specified what is to
happen to the gift in that circumstance? Yes. Since an antilapse statute is only a
default rule, applying only when T fails to evidence a “contrary intention,” T may
state in the will that he does not want the anti-lapse statute to apply and does not want
issue of the deceased devisee substituted by the antilapse statute. If T manifests an
intent that the anti-lapse statute not apply, and he does not include an alternative gift
when a devisee predeceases T, the CL default rules apply . T usually expresses intent
that he does not want anti-lapse statutes to apply by using words of survivorship
Example (Anti-lapse statute): T devises her home to her niece A, and the residue of her
estate to B. A predeceases T, leaving a child C who survives T. Under the UPC antilapse statute, C takes T’s home because A is a decedent of T’s grandparent and hence
comes within the required relationship. If the anti-lapse statute applies only to T’s
descendants, C does not take T’s home. The devise lapses and falls into the residue given
to B
HYPO: (p. 449) H devises ¾ of his estate to W and ¼ to charity. H’s 2 kids are
mentioned but not provided for in H’s will. W predeceases H. Who takes H’s estate?
- If W predeceases H her gift lapses
- Anti-lapse statute is not going to apply bc W is H’s wife
- If the ¼ is really the remainder then W’s ¾ share will lapse and go into the residuary
clause and the charity will get everything
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-
If no residuary clause then the gift lapses. The ¾ share would pass by the laws of
intestacy to his children (who he made no provision for in the will)
WORDS OF SURVIVORSHIP
(1) Majority rule: Words of Survivorship = Anti-lapse statute doesn’t apply.
Majority rule is that an express requirement of survivorship states an intent that the
antilapse statute not apply and that the gift not pass to the deceased devisee’s issue
(even if the devisee though deceased devisee is in proper degree of relationship to T)
(2) UPC 2-605: Reverses majority rule that the “words of survivorship such as in a
devise to an individual ‘if he survives me,’ or in a devise to ‘my surviving children’
are not, in the absence of additional evidence, a sufficient indication that T didn’t
want the anti-lapse statute to apply
What are words of survivorship? (this is not always clear)
▪
“If he survives me”
▪
“My surviving children”
Allen v. Talley (TX 1997), p. 441  Words of survivorship
Facts: T writes will that states: “I give, devise and bequeath unto my living brothers and sisters… to
share and share alike, all the property, real personal and mixed.” T has 5 brothers and sisters who are
living at the time of execution; 3 predecease her
Issue: Does “living brothers and sisters” mean living at the time of execution or at the time of her
death? Is this a condition of survivorship?
Majority Rule: An express requirement of survivorship states an intent that T did not want the antilapse statute to apply (that the gift not pass to the deceased devisee’s issue even if the devisee is in a
particular degree of relationship to T)
Held: “Living brothers and sisters” are words of survivorship. A sibling has to be alive at the time of
T’s death in order to take
Hypo: T’s will devises Blackacre “to my son Sidney if he survives me” and devises the residue of this
estate to his wife Wilma. Sidney dies in his father’s lifetime leaving a daughter Debby. T is survived
by Wilma and Debbie. Who takes Blackacre, Wilma or Debby?
▪
Issue: Do the words “if he survives me” evidence an intention that Sidney’s child not be
substituted for Sidney?
▪
In jurisdiction that follows majority rule: An express requirement of survivorship states an
intent that the anti-lapse statute not apply. Thus Debby would not be substituted for her father bc
the words “if he survives me” create a requirement of survivorship. This would be seen as an
intent that T didn’t want the anti-lapse statute to apply
▪
In jurisdiction that follows UPC: UPC reverses majority rule that the “words of survivorship
such as in a devise to an individual “if he survives me” do not evidence that T did not want the
anti-lapse statutes to apply. Here the anti-lapse statues would still apply
SUBSTITUTE GIFT (p. 440)
A. Principle: To carry out a perceived intent of a testator to substitute issue for the dead
devisee when the anti-lapse statute does not apply courts have sometimes found a
substitute gift to issue in: (1) the words of the will, (2) have stretched the concept of
class gift so as to apply to two persons who are in some way related
B. When will court say that there is a substitute gift? Usually when the anti-lapse
statute doesn’t apply bc the person is not in the correct degree of relationship to T.
Thus courts will use these sometimes to try to circumvent the anti-lapse statutes
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Example: T devises her home to her niece A, and the residue of her estate to B. A predeceases T,
leaving a child C who survives T. If the court decides to the devise to B and C is to a class, and not
to B and C individually, C (and not T’s heirs) will take the share given to the predeceased class
member
Example: H leaves his stock portfolios to his nephews Jim and Frank. Frank dies before T. The
court may look at this and decide to characterize the disposition as a class gift because both Jim
and Frank are his nephews. If the court characterizes it this way then the surviving class member’s
get the deceased class member’s share of the gift. Here that means that Jim is going to get the
whole gift. Courts will sometimes choose to characterize the disposition as a class gift if the court
feels that the anti-lapse statute wouldn’t carry out T’s intent. By describing the disposition as a
class gift, the court prevents it from lapsing
Jackson v. Schultz (DE 1959), p. 446
Facts: T’s step-kids contracted to sell T’s house claiming to hold title under the terms of T’s will.
T had no kids of his own. T married the step-kids mother in 1918, caring for and supporting 3 kids
during their minority and continuing to support one of the kids after his wife’s death 5 years ago.
Buyer felt somewhat shaky about the sale – wasn’t sure that the kids really held title. Step-kids
bring case bc they want to quiet title so that they can sell the house
Clause at issue: “I give, bequeath, and devise unto my beloved wife, Bessie, all my property real,
personal and mixed wheresoever situate and of whatever nature and kind, to her and her heirs and
her assigns forever.” (This is property language not will language)
Held: Step-kids entitled to property under the terms of the will
Rationale: Court looks to fact that this is a marketable title action. State of DE is the only other
party who could possibly contest the will (no representative of the state is present). Court says that
“or” and “and” are the same and therefore the step-kids are entitled to take under the terms of the
will bc if used term “or” you’d have a substitute gift and then avoid lapse
Note: This is an odd ball case; doesn’t fit in scheme with rest of cases
Application of Antilapse Statues to Class Gifts (p. 458)
Almost all states apply their anti-lapse statutes to class gifts. Many statues expressly so provide (see
UPC 2-605). In states where the statute is unclear, courts reason that the anti-lapse statutes are
designed to carry out the average T’s intent and that the average T would prefer for the deceased
beneficiary’s share to go the beneficiary’s descendants rather than to the surviving members of the
class. In some states, however, antilapse statutes do not apply to dispositions to class members who
die before execution of the will. In these states, it’s assumed that T didn’t have the dead class member
in mind and did not want him to take
HYPO: T, a widow, dies leaving a will devising Blackacre “to my sisters,” and devising
her residuary estate to her stepson (S). When T executed the will, T had 2 sisters living A
and B. One sister (C) died before the will was execute, leaving children who survived T.
A died during T’s lifetime leaving 2 kids. T is survived by B, A’s children, C’s children
and S. Who takes Blackacre?
- If the antilapse statute applies to devises to sisters, in majority of states, B
takes 1/3 share, A’s children 1/3 share, and C’s kids a 1/3 share
- In a minority of states C’s kids don’t share bc C was dead when the will was
executed. Blackacre goes ½ to B and ½ to A’s kids.
- If the anti-lapse statutes do not apply to class gifts, B as the sole surviving
member of the class would take Blackacre
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C. Changes in Property after Execution of Will
Basic Rule: To be effective, a specific legacy or devise must be in existence and
owned by T at the time of his death
DOCTRINE OF ADEMPTION
Under the doctrine of ademption, when specifically bequeathed property is not in
T’s estate at time of T’s death (i.e. – it was destroyed, sold, given away, lost,
transferred) the bequest is adeemed (it fails). Ademption applies because the
property that was to have satisfied the bequest is not in the estate. CL doctrine of
ademption applies only to “specific devises” of real and personal property ( it
does not apply to general devise).
Example (ademption by extinction): T’s will devises Blackacre to her son,
John, and the residuary estate to her daughter, Mary. Some years later, T sells
Blackacre and uses the sale proceeds to purchase Whiteacre, then dies w/out
having changed her will. The gift of Blackacre is adeemed. Since Blackacre is
not owned by T at her death, the devise fails. John has no claim to Whiteacre,
because the will does not devise Whiteacre to him
Example: T’s will bequeaths “my Rolex watch to my sister Sue.” After the will
is executed, T sells her Rolex watch and uses the sale proceeds to purchase a
Seiko watch. Ademption operates since the testamentary disposition was of a
Rolex watch, not a Seiko, and T did not own a Rolex at the time of her death
UPC 2-606 Creates an Exception to Ademption by Extinction (p. 465)
provides that under certain circumstances the fact that T no longer has certain
item of property at death won’t result in ademption if there was specific property
purchased in replacement of the property that you were supposed to get (i.e. –
another piece of property bought specifically to replace the piece of property you
were supposed to get)
 You have to arg that the new item is an exact replacement
 You can also make the argument that you would be entitled to the
proceeds of the sale (i.e. – the $$ T got when he sold his vacation
home in New Hampshire
Specific Devise: Disposition of a specific item of T’s property (i.e. – Blackacre,
diamond ring given to me by Aunt Sally). Doctrine of Ademption by Extinction
applies to specific devises of real and personal property
General Devise: A device is general when T intends to confer a general benefit
and not give a particular asset
Ex: A legacy of $10,000 to A. If there is not $10,000 in cash at T’s estate at
death, the legacy is not adeemed; other assets must be sold to satisfy A’s general
legacy
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Wasserman v. Cohen (MA 1993), p. 459
Facts: P requested that the trustee be ordered to pay P the proceeds of the sale of an
apartment building which under the trust would have been conveyed to P had it not been
sold by T prior to T’s death
Issue: Was this property adeemed? Or is P entitled to sale money as a replacement for the
property?
Identity theory: If you are to receive real property under a will and T transfers that
property during his lifetime the gift is adeemed. If the property is no longer part of T’s
estate it doesn’t matter that there’s now money in place of the property in the trust – the
money is not the same as the property. The replacement property must be “identical”
Held: The property was adeemed upon T’s transfer of the property. P is out of luck
 If you’re in Massachusetts you have to be careful. Under MA law, the replacement
property must be the same. MA courts will look for that exact object and that exact
object alone
In jurisdictions following the identity theory, courts have developed several
ways to get around the doctrine of adeemption (p. 463)
1. Classify the devise as a general devise rather than a specific devise
2. Classify the inter vivos disposition as a change in form, not substance
Ex: T executes will giving 100 shares of Tigertail Corporation stock to A. Tigertail Corp
merges into Lion Corporation, which issues 85 shares of Lion for every 100 shares of
Tigertail. Most courts hold that corporate merger or reorganization is only a change in
form, not substance, and A takes the Lion stock
DOCTRINE OF ABATEMENT (p. 468)
▪
When does the problem of abatement arise? The problem of abatement
arises when the estate has insufficient assets to pay debts as well as all the
devises; some devises must be abated or reduced
▪
Order things are to be abated: Unless will says otherwise, devises the
doctrine of abatement provides that devises abate in the following order:
(1) residuary devises
(2) general devises
(3) specific and demonstrative
▪
How much is a devise to be reduced? Devises to be reduced pro rata
Ex: Whole estate only amounts to $50,000. Gifts add up to $70,000. What court will
generally try to do is start taking things out of the residuary devise and then try to satisfy
the other bequests. If that doesn’t work then the court will take form the general devises
(cash) – everyone may have to take a general reduction. If the general devises don’t cover
it then the court may order that the specific devises be sold off to pay off the debt. The
order that the court dips into things here is presumed to follow T’s intent
DOCTRINE OF EXONERATION OF LIENS (p. 468):
▪
Doctrine of the Exoneration of liens: Under this doctrine when a will makes
a specific disposition of real or personal property that is subject to a mortgage
to secure a note on which T is personally liable, it is presumed, absent
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▪
contrary language in the will, that T wanted the debt, like other debts paid out
of the residuary of the estate
When does this arise? When a will makes a specific devise of land, on which
there is a mortgage, the question may arise whether the devised land passes
free and clear of the mortgage
UPC 2-607 Reverses the CL Doctrine of Exoneration of Liens:
A specific devise passes subject to any mortgage interest existing at the date of
death, w/out right of exoneration, regardless of a general directive in the will to
pay debts (p. 468)
Hypo: T’s will devises Blackacre to her daughter A. At T’s death, Blackacre is
subject to a mortgage that secures a note on which T was personally liable. Does
A take Blackacre subject to the mortgage or is she entitled to the note paid out of
the residuary of the estate so the title will pass to A free of the lien?
▪
In jurisdictions that follow the common law doctrine of exoneration of
liens, A takes Blackacre free of the mortgage
▪
In jurisdiction that follow UPC 2-607, A takes Blackacre subject to the
mortgage
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Chp 8 Trusts: Creation, Types, & Characteristics (p. 553-664)
A. Trust Basics
1. What is it?
Trust: A devise whereby a trustee manages property for one or more beneficiaries.
Trustee holds legal title to specific property under a fiduciary duty to manage, invest,
safeguard, and administer the trust assets and income for the benefit of the designated
beneficiaries who hold equitable title
Parties to a Trust (depending upon type of trust person can play more than one role)
a. Settlor
b. Trustee
c. Beneficiaries
2. More about the Trust Roles
(1) SETTLOR: Settlor is the person who creates the trust. The settlor can also be a
beneficiary and the trustee of an inter vivos trust.
(2) TRUSTEE (p. 559): The trustee is the person(s)/corporation who manages the trust
for the benefit of the beneficiaries. The trustee holds legal title to the property in the
trust and owes a fiduciary duty to manage it for the benefit of the beneficiaries (they
hold equitable title). The trustee may be the settlor, 3rd party, or a beneficiary
Settlor fails to name a trustee? A trust will not automatically fail for want of a
trustee. If the settlor intends to create a trust but fails to name a trustee, a court
will appoint a trustee to carry out the trust
Person named as trustee refuses to be trustee? Because a trustee has onerous
duties and liabilities, the law does not impose upon a person the office of trustee
unless the person accepts. If T’s will names someone as trustee but the named
person refuses appointment while serving as trustee, and the will does not make a
provision for a successor trustee, the court will appoint a successor trustee (note if
you have an inter vivos trust and don’t name a trustee then you have a problem)
Trustee is held to a very high standard of conduct
▪
▪
▪
▪
▪
▪
▪
▪
Under duty to administer the trust solely in the interest of the beneficiaries (self-dealing where
trustee acts in same transaction both in its fiduciary capacity and in an individual capacity is
sharply limited or prohibited)
Must preserve the property & make it productive
Where required by the trust instrument must pay income to beneficiaries
Owes a duty of fairness to both classes of beneficiaries (income beneficiaries and
remaindermen) when making investment decisions
Must keep the trust property separate from the trustee’s own property
Must keep accurate accounts
Must invest prudently
Cannot delegate trust powers
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What happens if the trustee improperly manages the trust estate? If the
trustee improperly manages the trust estate, the trustee may be denied
compensation, subjected to personal liability, and removed as trustee by a court .
Once a person accepts the office of trustee, the person can be released from
liability only with consent of the beneficiaries or by a court order
Problem (p. 561)
In January O executes a written instrument creating an irrevocable trust and naming X as
trustee. The trust instrument provides that the income from the trust is to be paid to A for
life and upon A’s death the corpus is to be distributed to B. Shortly thereafter, O delivers
a copy of the trust instrument and $100,000 in cash to X and tells X that this money is to
be held by X under trust. X immediately puts the money in his safe-deposit box. O dies
the following February. In November next, X saying that he does not want to be trustee
divides the money between D and E, the residuary legatees of O’s estate, paying $50,000
to each. Has a trust been established? Is X liable for $100,000? Can A and B recover the
$100,000 from D and E?
Issue: Was a trust created in this case?
- Was there sufficient delivery of property here to indicate that the settlor
intends this to be a binding trust? Delivery was sufficient
- A and B didn’t get any money, can they bring an action against the
trustee for this $100,000?
Rule: If no affirmative action on the part of the trustee showing that he
accepted responsibility, the court is not going to assume that the person
accepted t o be trustee. Court wants some affirmative act showing that the
person accepted to be trustee. If person did affirmatively manifest that he/she
is willing to be trustee then he can be held liable for mismanaging the trust
assets
Application: Here X took the money and put it in a safe-deposit box. Most
courts would say that this constitutes acceptance. Here there is a good chance
that X may be found liable. A is supposed to get the income and that won’t
happen if the money is sitting in the safe-deposit box. Nor will B get the
corpus if X gives it to D and E. X did not act in what that you’re supposed to
act if you’re trustee
- Do A and B have any chance of getting the money back? Yes they do if
they can establish that the this was valid trust. They would be able to recover
money from D and E
(3) BENEFICIARIES
Beneficiaries hold equitable title to the trust property
Beneficiaries can bring claim against trustee for breach of fiduciary duty
Equity gives the beneficiaries additional remedies relating to the trust
property itself
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


If the trustee wrongfully disposes of the trust property the beneficiaries can
recover the trust property unless it has come into the hands of a bona fide
purchaser for value
If the trustee disposes of trust property and acquires other property with the
proceeds of the sale the beneficiaries can enforce the trust on the newly
acquired property
Trustee’s creditors can’t go after the trust assets unless the settlor is also the
trustee.
B. CREATION OF A TRUST
Nor particular form of words is necessary to create a trust. The words trust or
trustee need not be used. The sole question is whether the grantor manifested an
intent to create a trust relationship
Two main types of trusts
a. Testamentary trust: Trust created in will.
b. Inter vivos trust: Trust created during the settlor’s lifetime.
An inter vivos trust may be created either by:
a. Declaration of Trust: Settlor declares that he holds certain property in trust
b. Deed of Trust: Settlor transfers property to another person as trustee
Inter vivos Trust created by Deed of Trust (p. 559)
1) When is a deed of trust necessary? A deed of trust is necessary to create an inter
vivos trust where the settlor does not want to be trustee
2) What steps must be followed? In order to bring the inter vivos trust into being, the
deed of trust or the trust property must be delivered to the trustee
Ex: O executes a written declaration of trust declaring herself trustee of Whiteacre, to pay the
income therefrom to herself for life, and upon her death Whiteacre is to pass to A. If O wanted to
make her lawyer (C) trustee, O would have to deliver a deed of trust to C
Inter Vivos Trust created by Declaration of Trust (p. 447)
1) Who is the trustee? Settlor is trustee under a declaration of trust (declaration of
trust = settlor declares that he holds certain property in trust)
2) Where O is the sole beneficiary and sole trustee trust is invalid: If O were the
sole beneficiary and also the sole trustee, the trust would not be valid bc no one
could hold O accountable for performance of the trust duties. In order to have a
valid trust, the trustee must owe equitable duties to someone other than herself (p.
559)
3) Declaration of Trust of Real Property: If the trust property is real property, the
Statute of Frauds requires a written instrument for declaration of trust (delivery
not required where settlor and trustee are not required)
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Ex: O executes a written declaration of trust declaring herself trustee of Whiteacre, to
pay the income therefrom to herself for life, and upon her death Whiteacre is to pass to A.
This is a valid trust even though the settlor of the trust is both trustee and a beneficiary
4) Declaration of Trust of Personal Property: If the trust property is personal
property, all that is necessary is that the donor manifest an intention to hold the
property in trust (delivery or a deed of gift are not required)
Ex: O orally declares herself trustee of 100 shares of General Electric stock, with the duty
to pay the income therefrom to A for life, and upon A’s death to deliver the stock to B.
This is a valid declaration of trust. No delivery of the stock is necessary, and since the
property is personal property, no written instrument is necessary. Some states require an
oral trust to be proven by clear & convincing evidence
Real Property v. Personal Property
▪
Real Property: If the trust property is real property, the Statute of Frauds requires
a written instrument for a declaration of trust
▪
Personal Property: If the trust property is personal property, generally there’s no
requirement that there be a written document (sometimes you don’t even need to
have any delivery of the property)
HYPO: You decide to create a trust. You don’t put any real property into the trust. You put
all your assets in it. It is set up so that it operates for your benefit during your lifetime but
when you’re dead the property goes to your favorite niece. You do this instead of a will. You
never got around to transferring the property into the trust. So the stock is still in your name
and not in your name as trustee. You never changed your name on your bankbook to you as
trustee. But you have this declaration of trust saying that you create the trust but then you
never made any transfers so the property that is supposed to be held in your name as trustee is
just held in your name. You die. Your niece is claming that she gets all the property because
she’s the beneficiary of the trust. Would this be a valid trust? Is it valid even though the
property was not delivered?
▪
Common law rule: Where settlor and trustee are the same person, you don’t
necessarily have to have actual transfer (delivery)
▪
Rule in the State of NY: NY requires that there be an actual transfer of the property
(delivery) in order for there to be a valid trust
▪
Analysis: Under the common law rule, the trust would be valid because the trustee
and the settlor are the same person. Settlor-Trustee knows that he’s holding property
in trust – it’s not as crucial that settlor actually deliver the property to himself in his
trustee hat because he knows about it and should be managing the property as a trust.
Niece could say here that a trust has been created here and that she’s entitled to the
assets. The problem here is that because the property is not held in trust, creditors can
go after the untransferred property. In the state of NY this trust would not be valid
because the property was not actually transferred (delivered)
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1. Intent to Create a Trust
ISSUE: Did the grantor manifest an intent to create a trust?
This is the threshold question when determining whether a trust has been created
because not particular words or form are necessary to create a trust (it’s not even
necessary to use the words trust or trustee). You have to look at the language and try
to figure out whether the grantor intended to create a trust relationship (this makes it
tough)
Grantor conveys prop to a grantee to hold “for the use & benefit” of another:
Courts have held that the “for the use & benefit” language is a sufficient
manifestation of an intention to create a trust
Fox v. Faulkner (KY 1927), p. 567 – Grantor conveyed land “to Mary Pursiful for the use and
benefit of Moses A. Cottrell, during his natural life – if the said Moses A. Crottrell should leave
children in lawful wedlock it shall go to them.” Court held that a trust was created
Jimenez v. Lee (Oregon 1976), p. 568
Facts: P brings suit against her father claiming that he mismanaged a trust that had
been created for her. First gift was $1000 savings bond from P’s grandmother – bond
was purchased to provide funds to be used for P’s educational needs. Second was
$500 gift from one of father’s clients. Father cashed the bonds and invested the
proceeds in common stock.
Issue # 1: Was a trust crested?
Held: Yes a trust was created. Evidence indicates that the bonds were to be used from
P’s education and were held in trust by father for this purpose
Issue # 2: Did father breach his fiduciary duties as trustee?
Held: Yes. He did not act responsibly did not keep records; did not manage, invest or
use the trust assets to support the trust’s purpose
 Many parents don’t live up to the role that the court demands here. Shocking
really that a court finds that a trust was created here
 This case illustrates the difference between a trust and a custodianship
CUSTODIANSHIP: Money given under the Uniform Gift to Minors Act has to be used
“for the benefit” of the minor. This lets parent uses the money for a large number of
different purposes (i.e. – he/she can use it for anything that will benefit the child) . 2
year statute of limitations period (p. 570, footnote 5)
 If the father were “custodian” of the gifts, he would have the power under the
Uniform Gifts to Minors Act to use the property as “he may deem advisable for the
support, maintenance, education, and general use and benefit of the minor, in such
manner, at such time or times, and to such extent as the custodian in his absolute
discretion may deem advisable and proper, w/out court order or w/out regard to the
duty of any person to support the minor, and w/out regard to any other funds which
may be applicable or available for the purpose.” As custodian the father would not
be required to account for his stewardship of the funds unless a petition for
accounting were filed in circuit court no later than two years after the end of the
child’s minority
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TRUST: Trustee has to use the $$ for the purposes specified in the trust (i.e. – if it’s to
be used for education then that’s all you can use it for. There is not statute of
limitations period w/r/t a claim for mismanagement of trust assets
Precatory Language: Grantor expresses a wish that he/she would “like” the grantee to use the
property/money for a particular purpose but does not mandate that the grantee it for the purpose.
This is a mere moral obligation unenforceable at law (p. 575)
Why do we care about “precatory language”? In a large number of cases, T expresses a
wish that the property devised be disposed of by the devisee in some particular manner but
the language does not clearly indicate whether T intends to create a trust (with a legal duty to
dispose of the property in the manner stated) or merely a moral obligation unenforceable at
law (The problem can be avoided by clear drafting. If T only wants to create a moral
obligation state “I wish, but do not legally require, that C permit D to live on the land”)
Examples of precatory language
- “to A with the hope that A will care for B”
- “to Z with the hope that he will use it to pay for law school”
HYPO: There’s a bequest in a will that says “I leave $100,000” to my nephew Bob. It’s my
wish that he use this money to go to medical school.” Does this language create a trust?
- Whether a trust has been created here depends upon how the language is construed
- No real mandatory language here (i.e. – doesn’t say that he must use the money for
educational purposes). Instead, it says that T would really like Bob to go to medical
school but there’s no obligation
- If you don’t have language that clearly indicates an intention to create a trust then the
courts are not going to construe the lang as creating a trust.
- This would just be money that’s going to the nephew – the nephew can use it however he
wants because this is not a trust
- If you use precatory language “I’d like the money to be used for X” (i.e. – there’s definite
requirement that the money be used for a particular purpose then the court won’t assume
that you intended to create a trust)
TRUST V. (CONSTRUCTIVE) GIFT: There’s not a clear distinction between holding
personal property in trust or making a gift of it. In order for there to be a gift there must
be delivery. Sometimes court will find that the person made a constructive gift where
there wasn’t delivery (i.e. – the delivery was symbolic)
Hebrew University Ass’n v. Nye (CT 1961), p. 575 (Part I)
Facts: Professor and wife tell friends that they’re interested in giving the contents of their
library to Hebrew University in Israel. Wife became the owner to of the books upon her
husband’s death. In 1953 wife went to Univ. of Hebrew and had discussions with officials
there about it – she announced her gifts of the books to them at a luncheon. Thereafter she
told everyone that she had given the books to the university and refused offers to sell (said
that they weren’t hers to sell). Wife began cataloging and crating the books for shipment but
she died before she was able to finish. Her will left her estate to another charitable institution.
University claims that the books belong to them. TC decides that wife declared a trust of the
books at the luncheon in Israel
Issue: Did T hold the books in trust? Did T create a trust?
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Held: SCT of Conn. reverses says that there is no evidence that wife ever regarded herself as
trustee or assumed duties as trustee. Characterize this as a gift that she intended to give but bc
she never really delivered the gift was never given. Court remands for a new trial and says try
on another theory other than declaration of trust
Note: Not all courts are so strict as Conn. SCT in requiring evidence that the donor considers
herself a trustee (in majority of jurisdictions all that’s required is that T have an intent to
create a trust)
Hebrew University Ass’n v. Nye (CT 1966), p.578 (Part II)
Issue: Did wife give the Hebrew University a ‘constructive gift’ of the books?
Rule: Generally there needs to be delivery in order for there to be a gift. Constructive
delivery of a gift through an informal document is permitted if accompanied by acts and
declarations showing an intention to complete the gift. Constructive delivery must be the
reasonable equivalent of actual delivery depending upon the nature of the property and the
circumstances (Delivery can be symbolic)
Held: The gift (books) was constructively delivered when the wife went to Israel and gave
the university officials a memorandum containing a list of the contents of the library
Note: These 2 cases claim to be illustrating the difference between a trust and a gift. But any
distinction they’re drawing is pretty fuzzy
- You don’t have to have to walk around with the word trustee on your T-shirt. You just have to
deal with the property in a way that that a trustee ordinarily deals with it. If you look at what the
wife did it’s not a stretch to say that she crated with fiduciary duties towards the books (i.e. she
said that she couldn’t sell them because she didn’t own them). She seems to satisfy the
requirement that she take care of the property for the benefit of the trustee
- Court should be focusing on the issue of whether or not there is clear and convincing evidence that
the wife intended the university to have the books
- In the 1st case the court seems very inflexible w/r/t the rules for creating a trust
- In the 2nd case the court seems to be fudging delivery rules for a gift
2. Necessity of Trust Property
“Res” Requirement – Need some sort of trust property in order to have a trust. Property
does not have to be limited to real or personal property – it can be any kind of interest in
property that can be transferred (remember testamentary trusts have no property in them
until T dies)
Unthank v. Rippstein (TX 1964), p. 581
Facts: Craft sent Rippstein a letter a few days before his death promising to give her $200 per
month. The letter stated “I hereby bind my estate to pay” Rippstein $200 per month. When he
dies the letter is offered to the probate court as a holographic will. Probate court holds that this
letter doesn’t meet the requirements of holographic will bc no testamentary intent
Issue: Is this a declaration of trust? Is this a gift?
Held: No trust created bc no property put in the trust or take steps to set aside property for the
trust. This is only a gratuitous promise to make a gift in the future
What does the T mean by “estate”? There are two possibilities: (1) Estate means “probate
estate” – if that was the intent then maybe the court should construe this a testamentary trust
arising out of a holographic will, (2) Estate means “his assets/prop” in his ownership at the time
of his death – if that’s the case the logical thing would be to read this as a declaration of trust
Criticism: For court to say that trust wasn’t created just bc he didn’t “earmark” a particular bank
account the trust fails doesn’t seem to very logical This is an example of where court says that
nothing in the shoebox means that you don’t have a trust
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Note: Iva argues that a resulting trust was created here
Brainard v. Commissioner (7th Cir 1937), p. 586  Future Profits (Oral); Trust
Facts: Dec 1927 Taxpayer orally declares a trust. Trusts consists of any profit he makes from
trading stocks. Beneficiaries of the trust are his wife, mother, and two minor children. Following
year he trades stocks. He decides that he’s entitled to $10,000 as trustee. He reports the $10,000
as income on his tax return. Whenever he got profits he credited them to the 4 beneficiaries on the
books but didn’t actually pay any money to anyone. Each beneficiary reported their credits on
their tax returns. IRS is not happy about this trust bc T is trying to distribute the profits so he can
get a tax advantage
Issue: When did the trust come into being? Did it come into being when he made the oral
declaration or did it come into being when he credited the beneficiaries’ accounts?
Held: Court said that the trust was not created until T credited the profits in the books of the 4
beneficiaries
Issue: Are future profits substantial enough to constitute the “res” of a trust?
Held: Future profits aren’t sufficient to constitute the res of a trust
Criticism: You could arg that the property requirement was met in this case because the
beneficiaries had the rights to whatever profits he earned. This boils down to a policy issue
Note: No one has to die in this situation for the money to go into the trust. Trying to see if we can
expand the situations where you have an unfunded trust (this trust is unfunded in the sense that
there’s nothing tangible in the shoebox)
 Court in this case is really bothered by the fact that the trust is oral and that all the witnesses
are interested (all stand to benefit from the creation of a trust). Court could have separated it out
and said that legally you’ve created a trust but you don’t get tax breaks under the tax code
HYPO: Z creates a revocable trust that contains 1 million dollars. Z says that the income from
the trust will be paid to him during his lifetime and after Z’s death it will be paid to G. How
would you characterize G’s interest?
- G would have a contingent remainder in the trust
- Contingent remainders can be conveyed. A contingent remainder can constitute a property
interest and therefore can qualify as “res” in your trust
HYPO; I invest million dollars in the stock market. I declare that all profits that I made from
trading in that stock next year are going to be paid to X. Which alternative would X prefer?
- There’s a potential for sizable recovery under either one if all the conditions
are right
- If the “profits option” has some value why wouldn’t this be sufficient to
constitute the “res” of a trust?
Speelman v. Pascal (NY 1961), p. 589  Future Profits (Written); Gift
Facts: Pascal writes letter saying that his lover was entitled to future profits of a musical that he
had yet to produce. At the time Pascal handed the note to lover, he had a license from the Shaw
Estate to produce the musical (which became My Fair Lady)
Letter at issue: “This is to confirm to you our understanding that I give you from my shares of profits of
the . .. stage version 5% in England, and 2% of profits in the US. From the film version, 5% from my profit
shares all over the world. As soon as the contracts are signed, I will send you a copy of this letter to my
lawyer, Edwin Davies, in London, and he will confirm to you this arrangement in a legal form. The
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participation in my shares of profits is a present to you in recognition for your loyal work for me as my
Executive Secretary.” /s/ Gabriel Pascal
Issue: Can future profits constitute a gift?
Held: Future profits can constitute a gift
Note: If this was set up as a trust the court would have probably been ok with it – since it has no
problem with the future profits idea
 Prevailing view is that a person can assign future earnings from an existing contract. The
theory is that the future yield of an existing property right can be transferred even though the
property to be acquired in the future cannot be
What makes the two case distinguishable?
- Speelman v. Pascal: There’s a writing. Pascal did everything he could to assign these future
interests to Kingman (made a writing, signed it, delivered it)
- Brainard case: There was no writing. Court seems to have been more bothered by the fact
that everything was oral than it was with the fact that future profits were involved. Courts get
nervous when trusts are created by oral declarations because the opportunity for fraud goes
wild. Often when there’s an oral declaration of trust, the court tends to get picker with the
other trust requirements bc courts don’t like oral declarations of trust
3. Necessity of Trust Beneficiaries
Beneficiary requirement: In order to be a valid trust there has to be at least 1
beneficiary (i.e. – there must be someone to whom the trustee owes fiduciary duties).
However, there is no requirement that the beneficiary has to be a life in being at the time
you create the trust (i.e. – you set up the trust to benefit your unborn grandchildren).
Clear identification of the beneficiaries
a. Private Trusts: If at the time the trust becomes effective the beneficiaries are too
indefinite to be ascertained, the attempted trust may fail for want of ascertainable
beneficiaries. That is, the beneficiaries or class of beneficiaries must be readily
identifiable or the trust will fail (i.e. – “friends” does not describe the intended
beneficiaries adequately)
b. Charitable Trusts: Charitable trusts won’t fail for lack of a definite beneficiary. You
can set up a charitable trust, for example, to help the “homeless.” The attorney
general assumes responsibility for determining who the beneficiaries will be
Clark v. Campbell (NH 1926), p. 598 “Friend” = not readily identifiable beneficiary
Facts: Provision in T’s will, created trust for the distribution of her collectibles. Ordered
trustee to distribute the property to her “friends”
Issue: Is a “friend” a readily identifiable beneficiary?
Held: “Friends” is too indefinite a class of beneficiaries. does not give sufficient criteria
to tell the trustee how to distribute the property. Trust fails and entire property passes
under the residuary clause of the will as a resulting trust
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HONORARY TRUST TO SUPPORT A PARTICULAR ANIMAL
Court will enforce “trust” to support a particular pet as an honorary trust so long as the
person to whom the money would be given is willing to perform the obligation & it
doesn’t violate the rule against perpetuities. Under the Rule Against Perpetuities an
honorary trust to support a pet is void if it can last beyond relevant lives in being at the
creation of the trust plus 21 years
In re Searight’s Estate (OH 1950), p. 602  (dog care case)
Facts: T, left by will $1000 to his executor to pay Florence Hand $0.75 per day to care
for his dog the rest of the dog’s life.
Issue: Is this a legitimate trust? Can you set up a trust like this for the care an
maintenance of a particular animal?
a. Is trust for charitable purpose (indefinite animals)? (i.e. – trust created for the benefit
of homeless dogs and cats)
b. Is trust set up for the benefit of a specific animal?
Held: Here the trust is set up for the benefit of a specific animal (Trixie) so it’s not a
charitable trust. Court will enforce this as an honorary trust because Florence agrees to
undertake the obligation and it doesn’t violate the rule against perpetuities bc the $1000 is
going to gone well before 21 years so no problem
“HONORARY TRUST TO SUPPORT A PARTICULAR ANIMAL”: Court will
enforce this kind of arrangement to support a particular pet as an honorary trust so long
as the person to whom the money would be given is willing to perform the obligation & it
doesn’t violate the rule against perpetuities
Note: You could run into a rule against perpetuities problem in this situation if the money
was invested in the stock market and only the income was used to pay for Trixie’s care.
The court here though is just assuming that the money will be placed in a bank account
with a nominal interest rate and therefore that there won't be a problem
4. Necessity of a Written Instrument
Inter vivos Trusts
▪
Personal Property: An inter vivos oral declaration of trust of personal
property is enforceable w/r/t an inter vivos trust
▪
Real Property: Statute of Frauds requires any inter vivos trust of land to be in
writing
▪
Exception: (Oral Inter Vivos Trusts of Land) Under certain circumstances a
court will enforce an inter vivos oral trust of land
Testamentary Trusts
▪
General Rule: Statute of Wills requires that a testamentary trust be created
by a will
▪
Exception (Oral Trusts for Disposition at Death): Under certain
circumstances a court will enforce an oral trust arising at death
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ORAL INTER VIVOS TRUSTS OF LAND
HYPO: Where O conveys land to X upon an oral trust to pay the income to A for
life and upon A’s death to convey the land to B, the Statute of Frauds prevents
enforcement of the express trust. Is X permitted to keep the land?
Courts have 2 options
1. Clearly violates the Statute of Frauds so the property belongs to X
(conveyance to X is still good so X has property free and clear). Most court
are not happy with that result because X gets a windfall when X is only
supposed to be holding the property in trust
2. Impose Constructive Trust: In order to prevent unjust enrichment to X, court
will say that the property is being held in constructive trust for the benefit of
the transferor. (This won’t put into effect what T wanted to do with the
property)
In what sort of circumstance will a constructive trust be imposed?
 Where the transferee (X) was in a confidential relationship with the transferor
 Transfer is made in anticipation of the transferor’s death
 Often the transferee makes a promise that he/she will reconvey the land back
Hieble v. Hieble (CT 1972), p. 609  Son refuses to give land back to mom
Facts: Mother conveyed real property to her son and daughter after finding out that she
had cancer. There was an agreement that the property would be reconveyed to her if no
further cancer was found 5 years after it had been operated on and removed. Mother was
to continue to use the property and she paid all taxes and upkeep on it. The daughter
reconveyed her share of the property but the son subsequently refused to reconvey
Rule: Where the existence of a confidential relationship exits and an oral agreement to
reconvey has been established, it’s up to the other party, through clear and convincing
proof to negate the presumption of a constructive trust. The challenging party has to
show that constructive trust shouldn’t be imposed because he is not going to be
unjustly enriched
Bottom line: Court looks at what’s going on here and determines that this wasn’t meant
to be a gift (confidential relationship, mother’s fear of dying) but a temporary
arrangement. By shifting the burden of proof the court makes it much tougher for the
challenging party to win. Here the son has to show that he wouldn’t be unjustly enriched
SECRET TRUSTS & SEMI-SECRET TRUSTS (Admission of extrinsic evidence)
SECRET TRUST: Will makes no indication that T intends that a trust be created.
Instead T leaves the property to a person who has promised to hold the property in
trust. Extrinsic evidence admitted to see if person is being unjustly enriched (i.e. –
not holding it in trust as he/she agreed). If finds that T did intend the person to
hold the property in trust, the court will impose a constructive trust
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Why would someone want to set up a secret trust? Client wants to give money
to someone but doesn’t want anyone else to know about it so they give it to
another person instead. These are generally created in testamentary setting (i.e. –
in will where it looks as though a gift has been given outright)
Several risks involves w/r/t secret trusts
 Not all jurisdictions recognize them
 Only person who really knows about the secret trust is the person that you’ve named
as trustee. After T’s dead, the trustee can decide not to fulfill the terms of the trust
and just keep the money for himself
 Trustee may die before you
 Secret can be discovered
 If your client wants to set up a secret trust you should give him a list of all the things
that could go wrong with setting up a secret trust
Ex: T leaves a legacy to Reverend Wells w/out anything in the will indicating an
intent to create a trust, a promise by the Reverend to T to use the legacy for St.
Stephen’s Mission would be enforceable by a constructive trust imposed upon
Wells. This is called a secret trust because the will indicates no trust. Courts
admit evidence of the promise for the purpose of preventing Reverend from
unjustly enriching himself by pocketing the legacy. Having admitted proof of the
promise, they proceed to enforce the promise by imposing a constructive trust on
Wells for the benefit of St. Stephen’s Mission
Problem (p. 617) Wendy Brown’s brother, Simon Preston is your client. Simon
has a long-time lover, named Camilla Bones, who lives out of town and whom
he sees when he travels. Simon wishes to leave Camilla $10,000 at his death,
w/out advertising the matter. Would you recommend that Simon leave $10,000 in
his will to his sister Wendy and obtain a secret promise by Wendy that she will
give Camilla the $10,000? Would this accomplish his objective of a secret gift?
Would you recommend that Wendy make the promise in a signed writing which
Simon is to keep in his safe deposit box? Would you recommend that Simon
leave the money to you (lawyer) and you promise to give it to Camilla?
(1) He could get his sister Wendy to promise to do this (i.e. – create a secret
trust). Get Wendy to make an oral promise and then rely on her to carry it out
(2) He should not write it down on paper and stick it in safe-deposit box. Wife
will be the first one in there after his death
(3) Giving it to attorney to give to Camilla also won’t work bc the gift will be
challenged immediately on the ground of undue influence. To over come the
undue influence claim the attorney would have to explain why he got the
money (i.e. – spill the beans). Also a problem if attorney represents T’s wife
too
Key Point: There are no guaranteed ways to do this. There are major risks
involved. You should make all these risks known to your client if he’s thinking
of setting one of these up
SEMI-SECRET TRUST: Identifies the trustee but does not identify in whose
benefit he holds it. No extrinsic evidence admitted. Trust fails because the identity
of the beneficiary is unknown
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Ex: The will indicates that the Reverend is to hold the legacy in trust but does not
identify the beneficiary a semi-secret trust is created. Since the will shows on its
face an intent not to benefit the Reverend personally, it’s not necessary to admit
evidence of the Reverend’s promise in order to prevent unjust enrichment.
Extrinsic evidence is excluded and the legacy to the Reverend fails
Olliffe v . Wells (MA 1881), p. 614  Semi-Secret Trust
Facts: T’s will devised her residuary estate to Rev Wells “to distribute the same
in such manner as in his discretion shall appear best calculated to carry out the
wishes I have expressed to him.” Rev is dead by the time this suit is brought and
his Mission was burned down
Issue: Is this a semi-secret trust?
Held: This is a trust not an outright gift because the lang of the will indicates
that he was not the intended beneficiary. It’s a semi-secret trust because only Rev
knows how it is to be used (i.e. – to be used in accordance with T’s wishes). No
extrinsic evidence admitted bc we know this is supposed to be a trust. But
because we just don’t know who the intended beneficiary is supposed to be the
trust is void
Was there some other reason why the court threw this trust out? Rev was
dead and the Mission was gone (burned down in fire). If court enforced trust here
it would face some serious problems. If court had a better idea about T’s
purposes then could have applied doctrine of Cy Pres but not enough info here
This case makes for bad law  Court uses semi-secret trust ground b/c
convenient to do so and little more
 Note so far we have been looking at mandatory trusts. Settlor transfers property to
the trust and the trustee is required to distribute the property in accordance with the
terms of the trust or be held liable for not doing so. Cf. Discretionary Trusts
C. Modification &Termination of Trusts (p. 651)
General rule: If the settlor and all the beneficiaries consent, a trust may be modified or
terminated. But there are a number of exceptions.
Issue: If the settlor is dead or does not consent to the modification or termination of the
trust, can the beneficiaries modify or terminate the trust if they all agree?
In re Trust of Stuchell (Oregon 1990), p. 652
Facts: Stuchell established a testamentary trust with his granddaughter as one of two surviving
life-income beneficiaries. On the death of the last income beneficiary, the remainder was to be
distributed equally to the granddaughter’s 4 kids or to their lineal descendents. One of those kids
was mentally retarded and living in state care. If the remainder was distributed the mentally
retarded child he would no longer qualify for public assistance. Beneficiaries would like to
modify trust so that the trust will not terminate
Held: This isn’t a good reason to modify the trust – you can’t extend the trust just because it
would be advantageous to the beneficiaries to do so
Key Point: This case shows the advantage of building some flexibility into your trust. You can
write trust so that upon the death of the last surviving beneficiary the property is going to be
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distributed in a manner to be determined by the last surviving life beneficiary (give that
beneficiary power of appointment). This would allow flexibility to take into account changes
that T could not foresee when he created the trust
Special power of appointment: Power to appoint the property or to modify a trust for the benefit
of anyone except the donee (p. 654)
Drafting advise: When you’re drafting a trust that is to last into the unforeseeable future, you
should consider giving a beneficiary (either a life tenant or a remainderman) or an independent
third party the power to modify or terminate the trust. This power can be in the form of a special
appointment
CLAFLIN DOCTRINE – A trust cannot be terminated proper to the fixed time for
termination, even if all the beneficiaries consent, if termination would be contrary to the
material purpose of the settlor (p. 656)
Key Point: There is considerable disagreement as to the circumstances under
which termination would be contrary to the purpose of the settlor
Generally a trust cannot be terminated if bc such provisions are usually
deemed to state a material purpose of the settlor
 it’s a spendthrift trust
 if the beneficiary is not to receive the principal until attaining a specified age
 if it’s a discretionary trust
 if it’s support trust
CLAFLIN v. Calvin (MA 1889), p. 656
Facts: Trusts was established for T’s son, with principal to be paid to the son at age 30. After age
21, the son sued to terminate the trust pointing out that he was sole beneficiary.
Held: Court refused to permit termination on the grounds that it would be contrary to the material
purpose of the settlor
In re Estate of Brown (VT 1987), p. 657
Facts: T leaves entire estate to provide for the education of his nephew’s kids. After all the kids
are through school, then what’s left goes to the nephew and his wife so that they could live in the
style to which they were accustomed. After all the nephew’s kids go through school the nephew
and his wife petition to terminate the trust bc they don’t need the money
Held: Court applies the CLAFLIN Doctrine and refuses to terminate the trust stating that doing
so will frustrate T’s material purpose
Criticism: This isn’t a spendthrift trust (no restrictions placed on it). This isn’t a support trust
(income paid to nephew and wife doesn’t vary). There is reason to keep this trust going. It seems
the only person who benefits from keeping this trust going is the trustee (drawing is trustee
income). It’s not clear what the court is worried about here; in the end the court seems to frustrate
everyone.
Note: In large majority of states a trust created by a written
instrument is irrevocable unless there is an express or implied
provision that the settlor reserves the power to revoke. In a few
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states, including CA and TX, the opposite presumption holds (i.e. – a
trust is revocable unless declared to be irrevocable). The Uniform
Trust Act adopts the minority rule (p. 581)
????????????????????????????????
D. Changing Trustees (p. 661)
Can the beneficiaries remove the trustee and have a new trustee appointed? Unless
the trustee has been guilty of breach of trust or has shown unfitness, the answer is NO.
The standard rule is that inasmuch as the settlor reposed special confidence in the
designated trustee, the court will not change trustees merely because the beneficiaries
want to
E. Types of Trusts
1. Mandatory Trusts (p. 617)
Mandatory Trust: Trustee must distribute all the income
Ex: O transfers prop to X in trust to distribute all the income to A. This is a mandatory
trust. The trustee has no discretion to choose either the persons who will receive the
income or the amount to be distributed
2. Discretionary Trusts (p. 617)
Discretionary Trust: Trustee has the discretion over payments of either the
income or the principal or both. Discretionary powers of the trustee may be
drafted in limitless variety. Though the trustee has more discretion in how to
manage the trust he still has some obligations to fulfill (i.e. – if it appears that the
trustee has utterly disregarded the interests of the beneficiary, the court will
intervene)
Ex: O transfers property to X in trust to distribute all the income to one or more members
of a group consisting of A, A’s spouse and A’s children in such amounts as the trustee
determines. This is a kind of discretionary trust known as a spray trust. The trustee must
distribute all the income currently but has no discretion to determine who gets it and in
what amount. If desired the trustee could be given a discretionary power to accumulate
income and add it to the principal
Marsman v. Nasca (MA 1991), p. 618
Facts: W set up a trust that provided for H after death. Trust agreement had an
exculpatory clause providing that trustee not liable for any mistakes he might make
unless arises to level of wilful neglect. Lawyer-trustee who drafted the trust had
discretionary power to pay out amounts of the principal as he deemed advisable but failed
to adequately explain that power to H. Because H didn’t know about the trustee’s power
to tap into the principal if H needed him to, H was forced to transfer the house to W’s
daughter and her husband – retaining a life estate in the house. Lawyer-trustee also set up
this deal. After H died, daughter told H’s second wife to vacate the premises. Wife # 2
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brought action against trustee for failing to inquire into H’s finances as the trust required
him to do
Issue: Where a trust gives the trustee a discretionary power to pay amounts of the
principal for the comfortable support and maintenance of a beneficiary, does the trustee
have a duty to inquire into the financial resources of the beneficiary so as to recognize his
needs?
Held: Court says that Wife # 2 can collect the payments that were trustee should have
made to H (but wife out of luck w/r/t the house bc the daughter was a bona fide
purchaser, etc.). Trustee not liable bc of exculpatory clause – his conduct doesn’t rise to
level of wilful misconduct
Key Point: This case illustrates the serious nature of the trustee’s duties. Trustee has to
do his homework to see if his/her discretion should be exercised. You can’t be a passive
trustee when dealing with a discretionary trust
Exculpatory Clause:
What is it? A clause in a contract relieving one party from liability for certain conduct.
Restatement Jurisdiction? Restatement puts the burden on the heirs to prove that the
lawyer put the exculpatory clause in against T’s wishes. This is tough to do because the
only people who would have knowledge of the overreaching are the trustee and the settlor
Uniform Trust Act Jurisdiction? Uniform Trust Act puts the burden on the lawyer to
prove that the client wanted the lawyer to put the clause into the trust (p. 629)
3. Spendthrift Trusts (Creditor’s Rights), p. 631
Spendthrift Trust: Spendthrift trust is a discretionary trust. Beneficiaries cannot
voluntarily alienate their interests nor can their creditors reach their interests. It’s
created by imposing a disabling restraint upon the beneficiaries and their creditors.
Creditors can’t reach money until trustee decides to cut a check. (Not all jurisdictions
recognize spendthrift trusts; in some jurisdictions trusts are not spendthrift unless the
settlor expressly inserts a spendthrift clause)
Note: Where a spendthrift trust is involved the beneficiary always has to be a 3rd
person. You can’t be settlor and beneficiary of a spendthrift trust. If Settlor tries to do
that, the creditors can get at any money that the trustee would have had the benefit to
pay (i.e. – the whole kit and caboodle). Settlor can’t create a spendthrift trust for his
own benefit.
Ex: T devises property to X in trust to pay the income to A for life and upon A’s death to
distribute the property to A’s children. A clause in the trust provides that A may not
transfer her life estate, and it may not be reached by A’s creditors. (This language makes
it a spendthrift trust) By this trust A is given a stream of income that A cannot alienate
and her creditors cannot reach
Child Support & Alimony: Judgments for child or spousal support can be enforced
against the debtor’s interest in spend thrift trusts in the majority of states. Ina
substantial minority a spouse or child can’t reach a spendthrift trust to satisfy
judgments for support payments from spendthrift or discretionary trusts
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Shelley v. Shelley (Oregon 1960), p. 633
Facts: Grant’s father created a trust for his benefit containing “spendthrift”
provisions. Trustee was directed to make pay income to Grant and to make
payments of principal to him when, “in its discretion” he was competent to
manage the funds on his own. The trust also said that the trustee could make
emergency payments for the benefit of Grant or his children for unusual or
extraordinary expenses. Grant father of 4 minor children and recently divorced
from wife # 2 fled the scene.
Procedural History: Grant’s 2 ex-wives sought to reach the trust income and
principal to satisfy court-ordered alimony and child support obligations
Held: Court says that public policy more important than the spendthrift
protections – trust’s income is payable to Grant’s children. Court said that
income also ok to use toward alimony payments (courts are split on this). Court
said that dipping into principal for kids is ok (lang of trust even allows for this
contingency sort of), dipping into principal for alimony is not ok.
Rationale: Court looks at the way that the trust is set up. It’s discretionary w/r/t
dipping into the principal. It’s mandatory w/r/t the paying of income. Families
are in the role of creditors but they aren’t typical creditors. Court looks at the
claims that are being made separately w/r/t the principal and the income.
US v. O’Shaughnessy (Minnesota 1994), p. 643
Facts: O’Shaughnessy was the beneficiary of 2 separate trusts created by his grandparents.
The trustees had the sole discretion to distribute the principal and income from the trust and
had the authority to pay nothing if they so chose. O’Shaughnessy had only the limited power
of appointment by his last will and testament. In 1989 a federal tax deficiency was assessed
against O’Shaughnessy for back taxes. The bank holding the trust assets was served with a
levy to satisfy the deficiency from the trust property
What kind of trust is this? A discretionary trust
What kind of interest does the beneficiary have? He has an expectancy or hope that he’ll
receive some money
What position is the US Gov't in here? US Gov't is in the same position as any other
creditor. Just as any other creditor, the US Gov't is standing in O’Shaughnessy’s shoes (they
can only get what he’s entitled to get)
Marbone v. Marbone (VA 1999), p. 647
Facts: Discretionary beneficiary of a 1991 will challenged the probate of a 1995 will on the
grounds of undue influence by the beneficiary of the 1995 will
Held: A beneficiary of a discretionary trust created by will does not have a legally
ascertainable pecuniary interest and therefore has no standing to challenge the probate of a
later will
Criticism: The court in this case is getting hung upon the definition of “interest” because it
doesn’t make any sense to say that you don’t have a sufficient interest to challenge a
subsequent will. A beneficiary of the trust is going to have a financial interest in how the case
comes out. Just because you don’t have an interest that creditors can’t attach doesn’t mean
that you don’t have some kind of property interest in the trust. You have to be skeptical of
cases like this
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PROBLEM (p. 642): O transfers property to X in trust to pay the income annually during A’s
lifetime “to A personally, to be used for A’s support,” and on A’s death to pay the principal
to B. One year later A gratuitously writes, signs, and delivers to his cousin (C) the following
memorandum: “I hearby assign to my cousin C all my right to receive future income for my
life time from the trust,” including the above trust in the memorandum. X, who has notice of
the assignment, pays the next annual installment income, $5,000, to A, who, having
meanwhile become angry with C, refuses to pay this sum over to C. Instead A uses it to buy
stock for himself. The stock is now worth $10,000. Does C have any claim against A?
▪
The answer depends upon whether this is a support trust or a spendthrift trust – if it is one
of these kinds of trusts then C is out of luck (They are discretionary trusts)
▪
This is an ordinary trust, A has the ability to transfer his interest in the trust to C. Because
that assignment was valid, C then has a valid claim against A either get the money back
or the stock that A purchased with that $5000
4. Support Trust (p. 642)
Support Trust: A trust that requires the trustee to make payments of income
(principal too if it specifies to that effect) to the beneficiary in an amount
necessary for support of the beneficiary– whatever is required to support the
beneficiary, no more, no less. The beneficiary of a support trust cannot alienate
her interest. Nor can creditors of the beneficiary reach the beneficiary’s interest,
except suppliers of necessaries may recover through the beneficiary’s right to
support
 Look at what the trustee is supposed to be doing with the money. Usually
trustee has a large amount of discretion w/r/t the amount of income or
principal he gets to distribute. If the trustee is just paying out the money the
court is probably not going to find that it’s a support trust no matter what. If
there’s no discretion on the part of the trustee as to how much to pay out, the
trust probably won’t be considered a support trust
5. Resulting Trusts (p. 584)
Resulting Trust A trust that arises by operation of law in one of two situations:
(a) where an express trust fails or makes an incomplete disposition, or
(b) where one person pays the purchase price for the property and causes title to
the property to be taken in the name of another person who is not a natural
object of the bounty of the purchaser. There is a presumption that the stranger
is holding a “purchase money resulting trust” –no intent that he really have the
property he’s just holding the property for my benefit (may do this to avoid
creditors or tax reasons)
Note: Statute of Frauds in to applicable to resulting trusts because resulting trusts arise by
operation of law. A resulting trust does not contemplate an ongoing fiduciary relationship wherein
the trustee holds and manages the property for the beneficiary. Once a resulting trust is found, the
trustee must reconvey the property to the beneficial owner upon demand
Example: O owns Blackacre. A pays O $10,000 for Blackacre; the deed conveying
Blackacre names B as grantee. If B is not a natural object of A’s bounty, a presumption
arises that A did not intend to make a gift of the property to B but had some other reason
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for causing B to be named as grantee. Unless the presumption is rebutted, B holds title on
a resulting trust for A. The presumption can be rebutted by evidence, including oral
testimony showing that A did intend to make a gift to B, or that A made a loan to B of the
purchase price
Example: O owns Blackacre. A pays O $10,000 for Blackacre; the deed conveying
Blackacre names B as grantee. B is A’s daughter. Since B would be the likely object of a
gift from A, a presumption arises that A intended to make a gift to B. The presumption of
a gift can be rebutted by evidence showing that A intended to retain beneficial enjoyment
and had a reason for placing title in B’s name
6. Constructive Trusts (p. 585)
Constructive Trust: A constructive trust rises by operation of law. A
“constructive trust” is a flexible remedy imposed in a wide variety of situations to
prevent unjust enrichment. When property has been acquired in such
circumstances that the holder of legal title may not in good conscience retain the
beneficial interest, equity converts him into a trustee. A constructive trustee is
under a duty to convey the property to another on the ground that retention of the
property would be wrongful
When will a court impose a constructive trust? Whenever it wants to prevent
unjust enrichment of the transferee (it would be unfair to let them receive the
assets)
Unjust Enrichment = Trigger for Constructive Trust
Examples of where a constructive trust may be imposed
 confidential or fiduciary relationship
 promise express or implied, by the transferee
 transfer of property in reliance on the promise, and
 unjust enrichment of the transferee
 may be imposed on a person who procures an inheritance through fraud or illegal action (Byrd
case)
 may be imposed on the estate of a person who breaches a contract not to revoke a will
 may be imposed to enforce an oral trust of land which violates the statute of fraud
7. Trusts for the State Supported (p. 648)
There’s been a rise of trusts for people who are being supported by the state
Qualifying for Medicaid: A person qualifies for Medicaid only if has few
financial resources
Self-Settled Trusts: Trusts created by individual himself, spouse, or someone
with legal authority to act on that person’s behalf. Generally gov’t will consider
the max amount available as your asset and the gov't will be able to reach those
assets. Self-settled trusts don’t protect your assets from the clutches of the gov't
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Trusts Created by 3rd Party: Somebody else is providing the money. If
spouse’s will created a testamentary trust, or a discretionary trust is set up by a
3rd party and the trustee has discretion w/r/t how much can be paid out those
won’t be part of your assets that can immediately be reached by the state. If it’s
set us a mandatory trust then it goes directly to the state
Disabled individual Exception: If a trust is established for a disabled individual,
from the individual’s property, by a parent, grandparent, or guardian of the
individual or by a court, and the trust provides that the state will receive upon the
individual’s death all amounts remaining in the trust upon to the amount equal to
the total medical assistance paid by the state, the trust will not be considered a
resource available to the Medicaid recipient.
Support trust: $$ goes directly to state upon payment
Discretionary trust: states doesn’t have access (can’t touch that)
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Chp. 12 Charitable Trusts (p. 859-900)
A. Rules applicable to charitable trusts only
Rule of Perpetuities is not applicable to charitable trusts: Charitable trust is exempt
from the rule against perpetuities and may endure forever
B. Nature of Charitable Purposes
Charitable Purposes under the Restatement (p. 861)
1. Relief of poverty
2. Advancement of education
3. Advancement of religion
4. Promotion of health
5. Government or municipal purposes
6. Other purposes the accomplishment of which is beneficial to the community
Purposes that aren’t considered charitable
1. Trust benefits a particular person or particular class of people (i.e. – a trust for
the advancement of education of your nieces and nephews)
2. Trust to benefit particular form of gov't (i.e. – a trust to support Connecticut
social party)
3. Trust to bring about a change in law by illegal or revolutionary means
Charitable Trust v. Benevolent Trust
(Public)
(Private)
Shenandoah Valley National Bank v. Taylor (VA 1951), p. 859
Facts: T directs trustee to pay net income on last day of school before Easter and
Christmas to 1st, 2nd, and 3rd graders to use for education
Issue: Is this a charitable trust? (If not serious problems bc violates rule against
perpetuities)
Held: This is not a charitable trust but a benevolent trust which is essentially private in
nature. Because this is not a public trust but private trust this trust fails bc it violates the
rules against perpetuities
Rationale: Court looks to how the money is to be distributed. Here the court looks at the
fact that there is no “follow-up” provision to make sure that the kids used the money for
education
C. Modification of Charitable Trusts
Uniform Trust Act version of the Doctrine of Cy Pres: Provides that a court may
apply cy pres if a particular charitable purpose becomes “unlawful, impracticable,
impossible to fulfill, or “wasteful” (p. 877)
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Doctrine of Cy Pres – If property is given in a trust to be applied to a particular
charitable purpose and it is or becomes impossible or impracticable or illegal to carry
out the particular purpose and if the settlor manifested a more general intention to
devote the property to charitable purposes, the trust will not fail but the court will
direct the application of the property to some charitable purpose which falls w/in the
general charitable intent of the settlor [the court will substitute a different charity that
still falls within T’s intent] (p. 875)
 The hardest part is figuring out whether T has a “general charitable intent”
Ex: You set up a scholarship for 3rd or 4th year night students at Quinnipiac Law (that would
be a charitable purpose). What happens if the law school closes? What happens to the money
that was in the trust?
We need to determine if the doctrine of cy pres comes into play here. Here it
becomes impossible to carry out T’s intent because there is no more school. If
court finds that T had “general charitable intent” then the court will substitute a
different charity that still falls within T’s purpose (i.e. – UCONN Law)
In re Neher (NY 1939), p. 870
Facts: T gave her home in the Village to be used as a memorial to the memory of her
husband. She further directs that the property be used as a hospital to be known as the
“Herbert Neher Memorial Hospital.” The Village accepted the gift but later determined that
the house would not be adequate for a hospital. In addition, a modern hospital in neighboring
village adequately served the needs of both communities. The Village petitioned the court to
use the building for the administration purposes of the Village to be designated the Herbert
Neher Memorial Hall.
Issue: Is there a general charitable intent? Is this a specific gift? Is there an overriding interest
to have some public building named after her husband? Where a will gives real property for a
general charitable purpose, may the gift be reformed cy pres when compliance with the
specified purpose is impracticable?
Held: Here it’s impracticable to carry out T’s intent. T had general charitable purpose and
using the building as an administrative building named after her husband falls within T’s
general charitable intent
Buck Trust, p. 872
Facts: T’s will left the residue of her estate to the San Francisco Foundation, a community
trust administering charitable funds in 5 counties in the San Francisco Bay Area. T’s will
direct that the residue of her estate was supposed to be used for the benefit of Marin County.
When she made the will she had stock worth $9 million. After her death stock increased in
value to $300 million. The Foundation brought suit seeking court to apply Doctrine of Cy
Pres so that it can spend some portion of the Buck Trust income in the other 4 counties of
the Bay Area. Foundation says that it’s impracticable to spend this $300 million in one
county
Held: Court refused to apply the doctrine of cy pres. Foundation resigns as trustee because it
thought that it’s integrity was compromised. Court replaces foundation with a publicly
supervised group of trustees who were indebted to the Marin county politicians, indebted to
several existing charitable agencies and to T’s husband’s family. (This doesn’t really seem
like a good tradeoff and it’s not clear that Buck would have wanted his kind of trustee)
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Key: Many courts equate impracticable with impossible. The impracticable option is the
stumbling block here. The whole thing goes bust because the court refuses to recognize the
difference between impossible and impracticable.
Criticism: When you look at what happened in this case it would have been much more in
accord with the settlor’s intent to apply the doctrine of cy pres and spread the money around
then to have all the money spent in one county
Uniform Trust Act Version of the Doctrine of the Cy Pres: Had that been applicable in
this jurisdiction you could have argued that it would be “wasteful” to spend all the money in
one county
Barnes Foundation, p. 879
Facts: T put a bunk of paintings into trust. Lots of rules about how the paintings have to be
hung, who can view them and what can and cannot be done.
Why are we looking at this? Here the restrictions placed on the trust are pretty much
strangling it. There is not way that the trustees can afford to maintain the trust the way it is set
up. Trustees need to get some money in order to keep the trust running. This illustrates that if
you’re setting up this kind of charitable trust and you have the intent that the trust last for a
substantial length of time you need to be careful about the restrictions that you place on the
trustee. If you put too many restriction on the trustee you can defeat your charitable purpose
D. Supervision of Charitable Trusts
Unlike a tradition trust there is no clearly defined beneficiary. So who’s
going to step into the shoes of the traditional beneficiary and make sure that
the trust is maintained properly?
Carl J. Herzog Foundation, Inc. v. University of Bridgeport (CT 1997), p. 883
Facts: Herzog Foundation made charitable grants to the university to provide need-based
scholarships for prospective nurses. In 1991 the school closed its nursing program.
Foundation complained that the gift was then being used along with the university’s
general funds. The university had not gone to court to try to get the court to apply the
doctrine of cy pres. Foundation seeks an injunction to (1) reinstate the scholarship at the
university, or (2) give to a different organization. University moved to dismiss on the
ground that the Foundation lacked standing – TC agreed. Appellate court reversed
Issue: Does a donor have standing to enforce the terms of the trust?
Held: A donor does not have standing to enforce the terms of the trust. The only person
who has the authority to enforce a charitable trust is the Attorney General
Key Points: Chances are the AG isn’t going to monitor what the university does with this
little scholarship fund. No one really ends up monitoring this thing. However, there is a
rationale basis to the court’s decision: it serves to insulate the donee from the secondguessing of the donor. But of course this shows that it is really difficult to enforce a
charitable trust
Bishop Estate, p. 896
Facts: Trust established to support schools
Key point: This case illustrates the problems that arise with charitable trust when you
only have the Attorney General Supervising them
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