Ausness
T&E F ‘17

THE MECHANICS OF SUCCESSION
a. Probate Property
i. Definition: to have an estate administered in a probate court, which includes
property that passes under a decedent’s will or by intestacy
1. Personal representative—first step in probate process is appointment of
a personal representative—a fiduciary— when a person dies and probate
is necessary
 Fiduciary (1) collects and inventories property, (2) manages
Will, ¬ dies testate—testator
and protects the property during the administration of the
devises real property to devisees
estate, (3) processes the claims of creditors, (4) files federal
and bequeaths personal property
and state tax returns, and (5) distributes the property to those
to legatees
entitled
aka Beneficiaries
i. Executor—if decedent dies testate and will names the
.
person who is supposed to execute the will and
Intestate,¬ real property
administer the probate estate
descends to heirs and personal
ii.
Administrator—if the will does not name an executor,
property is distributed.
the executor is unable or unwilling to serve, or decedent
 Statute of descent and
dies intestate
distribution controls
 Administrator is chosen from a statutory
list—usually ordered (1) surviving spouse,
children, parents, siblings, creditors
ii. Probate Administration:
1. Choice of law
a. Personal property—the law of the state where the decedent was
domiciled govern
 Primary/Domiciliary Jurisdiction:
b. Real property: law of state where decedent’s real property is
located governs
 Ancillary Probate: where real property is located in another
Jx from the domiciliary Jx.
o B/c of potential additional executor’s commissions
and attorney’s fees that may be incurred bc a
resident of the ancillary state may necessarily need
be appointed personal representative, attys will
advise clients with real estate in another jx to put
property in an I
nter vivos trust in order to avoid
the costs and delays of an ancillary probate
proceeding.
2. Opening Probate:
a. Letters testamentary—executor where decedent died testate are
needed in order for executor to have authority to act on behalf of
the estate
i. Typically, if the will names an individual rather than a
bank or other corporate fiduciary as executor, ¬ bond
unless the will waives the bond requirement
b. Letters of Administration—required for administrators in
intestacy (or other req. as above) in order to act on behalf of
estate
i. Bond requirement
1
Ausness
T&E F ‘17
UPC’s FORMAL & INFORMAL PROBATE
3. Methods of probating a WILL
Formal probate= (in solemn form)
a. In common form—ex parte proceeding in which no notice or
process is issued
 Process:
o Execution of will is proved by oath of executor (or
necessary Ws)
o ¬ will admitted to probate
o ¬ letters of testamentary granted
UPC § 3-108—no proceeding, formal or
o ¬ executor begins administration of estate
informal may be initiated more than three
 If caveat filled, ¬ in solemn form is
years from the date of death. If no will is
compelled
probated within three years, the presumption
b. In Solemn Form—notice to interested parties is given by citation
of intestacy is conclusive. This three- year
SOL changes the CL, which permits a will to
 Process:
be probated at any time, perhaps many years
o Execution of will is proved by testimony of attesting
after the testator’s death
Ws
o ¬ administration of estate involves greater court
participation
c. UPC§ 3-301: INFORMAL PROBATE:
i. Appointment process:
1. w/o notice, representation petitions for
appointment
2. petition must contain info about decedent and
the names and addresses of the spouse, children
or other heirs.
 If a will is involved, ¬ petition must include
info of devisees
ii. Petition for probate of a will
1. Must include original will
2. Executor must swear that, to the best of her
knowledge, will was validly executed
 If attestation clause is included in will, then
probated w/o further proof. UPC § 3-303
3. Must mail notice to every interested party,
including heirs apparently inherited by will w/I
30 days. UPC § 3-705
 ¬ any party may then file a petition for
formal probate. UPC § 3-402
d. UPC §3-401: FORMAL PROBATE
4. Supervised & Unsupervised Administration
5. Barring Creditors
6. Closing the Estate
b. Non-probate Property
i. Definition: property that passes by a will substitute outside of probate is nonprobate property
1. Inter Vivos Trust —when property is put in a trust during the decedent’s
life, the trustee holds it for the benefit of 1> beneficiaries and distributes
the property to the beneficiaries according to the terms of the trusts
a. Trustee holds legal title to the trust property—this is what makes
it unnecessary for it to go through probate—because there is no
need to change title by probate administration upon death
Informal Probate= (in common form)
If person asking for testamentary letters for
informal probate, validity of the will or
determination of intestacy need not be litigated
unless an interested party objects.
2
Ausness
T&E F ‘17

cf testamentary trust, which is created under the decedent’s will
and  passes through probate
2. Pay-on-Death (POD) & Transfer-on-Death (TOD) contracts—allows for
a POD/TOD beneficiary designation under which the account custodian
distributes the property at the decedent’s death to the named beneficiary.
 Examples: retirement accounts—e.g. bank, brokerage, mutual fund,
and pensions
3. Joint Tenancy—decedent’s interest vanishes at death
4. Life Insurance—where proceeds of a life insurance policy are paid by the
insurance company to the beneficiary named in the insurance contract
II.
INTESTACY
c. ESTATE PLAN BY DEFAULT
i. “Heirs”—are those people identified by statute to take the estate to the extent that
Method:
the decedent dies intestate
ii. Heirs apparent- no living persons have heirs—heirs are identified only at the
Parentelic approach
moment of a person’s death—those persons who would inherit the property of
the then living person are “heirs apparent” and only have a mere expectancy,
Look downlook
contingent upon (1) surviving the now living person and (2) the expectancy is
uplook downlook up
defeasible
iii. “Devisee”/”legatee”/”beneficiary”—are those persons named in a will, and the
interest, while the testator is living, is a mere expectancy until death
iv. “Ancestors”—includes parents, grandparents, etc.
v. “Children”—refers to a single generation
vi. “descendants”/”issue”—most Jx means multi-generational group including
children, grandchildren, etc.
vii. “collaterals”—means those people out of the lines of ascent and descent: aunts,
uncles, brothers, sisters, cousins—those people who are related by blood to the
decedent but who are not descendants or ancestors
1. First line collaterals= those descendants of the decedent’s parents, other
than the decedent and decedent’s descendants
2. Second line collaterals= descendants of the decedent’s grandparents,
other than the decedent’s parents and their descendants
viii. “Affinity”—those who are not related by blood but are considered family—e.g.
the husband/wife of your blood uncle/aunt—thus, the spouse of the blood relative
is said to be related by “affinity”
ix. “degree of relationship”—refers to the steps/degrees btw the decedent and
relative
x. “representation”—stepping into the shoes of a predeceased person as a
placeholder
3
Ausness
T&E F ‘17
Collaterals
Laughing
Heirs
d. The Structure of Intestate Succession—THE STATUTE OF DESCENT &
DISTRIBUTION
i. UPC § 2-101. Intestate Estate.
a. Any pt. of estate not effectively disposed of by will,¬ passes by
intestate succession (subject to decedent’s will excluding
persons)
(1) decedent dies without a will
(2) will is invalid
(3) the will does not dispose of all of the property in
the estate
b. Decedent by will can expressly exclude or limit . . .
.persons/classes to succeed property by intestate succession . . .
o If decedent limits rights of persons . . . & persons/ class
survives decedent, ¬ . . . pt of intestate estate that the person
would have succeeded passes as if . . . they had disclaimed
his/her intestate share
ii. Surviving Spouse/Partners
1. The Spouse’s Share (UPC § 2-102)
a. Spouse gets entire intestate estate if
4
Ausness
T&E F ‘17
i.
(1) no descendant and no parent survives the decedent
OR
ii. (2) all of surviving descendants are of both the decedent
and the surviving spouse (& the surviving spouse has no
other descendants of the surviving spouse)
 Essentially this means that, if the couple has
children, they are all children of both of the spouses
b. Spouse’s Share if Parent survives . . .
o If no descendant, but parent survives decedent, then . . .
i. spouse of decedent gets the first 300k, + ¾ of any
balance, and
ii. the remaining amount of the estate goes to the parent
c. Spouse has descendant not of decedent:
o If (1)surviving spouse has a descendant not of decedent and
(2) decedent’s surviving descendants are also descendants of
the surviving spouse, then the . .
i. surviving spouses gets the first 225k plus ½ of balance .
. . and
ii. The remaining amount of the estate goes to those
descendants that are of both the decedent and surviving
spouse
d. Decedent has descendant not descendants of surviving spouse:
o If the decedent has descendants that are not descendants of
surviving spouse, then . . .
i. Spouse gets first 150k plus ½ of remaining, and . . .
ii. Decedent’s descendants not descendants of surviving
spouse gets the rest . . .
2. Unmarried Cohabitating Partners
3. Simultaneous Death
iii. Descendants
1. Representation
a. Civil law – equal degrees of kinship take equally, and there is no
representation
b. English per stirpes/Strict Per Stirpes (“by the stocks”): property
is divided at the first generation of descendants whether they
survive or not
o Preserves vertical privity
o Decedent’s children are the root generation
o The children of the deceased descendant represent their
deceased parent and are moved into their parent’s position
beginning at the first generation below the designated person
A
B
C
D
E
o
o
F
English/strict= D 1/2 ; E & F= ¼
Modern= D/E/F =1/3 each
5
Ausness
T&E F ‘17
c. Modern Per Stirpes (Per capita w/representation): divide the
estate into equal shares at the first generation leaving survivors.
– per capita at the first generation of survivors and “with
representation” after that.
o If any children survived the decedent, ¬ distribution is
identical to that under English Per Stirpes.
o “root generation”= generation nearest to the decedent in
which one or more descendants of the decedent are alive
o Once that is ascertained,¬ any deceased descendant
in that level is represented by her descendants as in
strict per stepies
d. Per capita at each generation (1990 UPC §2-106(b)): equal
treatment at each generation— per capita at each generation
i. Identify first generation with surviving members
ii. Divide into shares using the (1) surviving members in
that generation and (2) the number of predeceased
descendants in that generation that have descendants that
survived
iii. Each survivor in this generation gets a share based on
the total
iv. Move down a generation, and, if there is a survivor
there, divide the remainder of the estate per capita in the
same manner
v. Process then continues until there are no more takers.
o Horizontal privity
o Initial division= closest generation where there is ≥ 1
descendant alive
o ¬ shares of deceased persons on that level are treated as one
pot and dropped down and ¬ divided = among
representatives in the next generation
A
B
E
C
F
D
G
o D=1/3
o E/F/G= (2/3 x 1/3)= 2/9 each
2. Representation in Wills & Trusts
iv. Ancestors, Collaterals, and Others—If the decedent is not survived by a
spouse, descendant, or parent, ¬ intestate property passes to collaterals—first
collaterals first—i.e. brothers and sisters and their descendants—and then
second-line collaterals—i.e. grandparents and their descendants other than the
decedent’s parents.
1. Civil Law (Degree of Kinship)-- equal degrees of kinship take equally,
and thwere is no representation
6
Ausness
T&E F ‘17
2. UPC § 2-103 (Parantelic System)—
 UPC § 2-106(c) adopts a per capita at each generation is applicable
to collaterals as well as descendants.
a. Laughing Heirs
i. UPC § 2-103(a)—line is drawn at grandparents and their
descendants—thus, there is no inheritance by relatives
traced through great-grandparents or more remote
ancestors
b. Stepchildren & In-laws
i. Stepchildren
1. UPC § 2-103(b)—stepchild if there are no
surviving grandparents or descendants of the
grandparents or more closely related kin.
ii. In-laws
c. Half-Bloods
i. UPC § 2-107 (1990)—a relative of the half-blood is
treated as the same as a relative of whole-blood
d. Non-Marital Children
o Public Policy: protecting against fraudulent claims—both
from either the child seeking to take via intestacy statute
from a father, or vice versa where there is money to be had.
3. Escheating to the State
4. Intestacy Provisions and  with Wills & Trusts
a. Disinheritance by Negative Will. UPC § 2-101(b) (p. 69):
authorizes a negative will by way of an express disinheritance
provision
o If disinheritance occurs via negative will,¬ the heir is treated
as if he DISCLAIMED his share—which means that the heir
is treated as if he PREDECEASED the decedent. (p. 135-disclaimers)
 e.g., T’s ill provides: “I hereby disinherit my brother
B”—but no affirmative disposition—C/L= goes by
intestacy; modern approach—UPC= disinheritance
by negative will, so brother is treated as disclaiming
intestate share—i.e. as though he predeceased the
decedent.
e. TRANSFERS TO CHILDREN
i. Adopted Children
 General Statute: UPC §2-114(b): An Adopted individual is the child
of his [or her] adopting parent or parents and not of his [or her]
natural parents (genetic), but adoption of a child by the spouse of
either natural parent has no effect on . . .
i. the relationship between the child and that natural parent
or
ii. the right of the child or a descendant of the child to
inherit from or through the other natural parent.
2. Formal Adoption:
 Focus of whether a child should inherit by intestate succession is
whether there is a parent-child relationship?
o If the relationship exists, ¬ “the parent is a parent of the child
and the child is a child of the parent for the purpose of
7
Ausness
T&E F ‘17
intestate succession” by, from, or though the parent or child.
UPC § 2-119(a)
 UPC §2-119 (b)-(d):
i. [stepchild adopted by a stepparent]: when adopted by the
spouse of a genetic parent, parent-child relationship
exists between
1. that genetic parent and the child, and
2. the other genetic parent—the one giving up
rights—, but, in this case, only for the purpose
of the adoptee (or descendant thereof) to inherit
though that genetic parent—thus the genetic
parent(s) are cut off from inheriting from the
child.
ii. [Individual Adopted by a Relative of a Genetic
Parent]—Parent child relationship exists only for the
purpose of the adoptee (or descendant thereof) to inherit
though that genetic parent—thus the genetic parent(s)
(and other relatives) are cut off from inheriting from the
child. . . .
1. Both genetic parents and the adoptee adopted by
the relative of a genetic parent OR
2. By the spouse or surviving spouse of a relative
of a genetic parent
iii. [Individual Adopted after Death of Both Genetic
Parents]— for the purpose of the adoptee (or descendant
thereof) to inherit through . . .
1. Both genetic parents and adopted thus the
genetic parent(s) (and other relatives) are cut off
from inheriting from the child
3. Adult Adoption—most Jx do not draw a distinction between the adoption
of a minor and adoption of an adult
 Tinney v. Tinney, 799 A.2d 235 (R.I/ 2002)—84yr. adopted
a 38-yr old man.
o H: It is clear that the Legislature intended the term
‘child’ to mean son or daughter of a parent,
regardless of age, and that there was no distinction
intended between the inheritance rights of a ‘child’
adopted as a minor and ‘persons’ adopted as adults.”
 Standing: Only the people who have standing to challenge
the validity of a will are those who would take if the will
were not valid. Thus, to gain standing to challenge a will
after an adoption has occurred, a decedent’s collateral
relatives must first overturn the adoption by the decedent
4. Adoption & Wills & Trusts—
o semantics issue—Is a child adopted by a person entitled to share in a
gift in a will or trust??
 What does “children,” “issue,” “descendants,” or “heirs” mean in
this context?
8
Ausness
T&E F ‘17
a. Adoptive parent—both minor and adult—that child is entitled to
take under the will or trust of the adopted parent just like a
biological child.
b. NOT adoptive parent—is the child adopted by the adoptive
parent entitled to share in a gift in a will or a trust by another
person other than the adoptive parent?
i. CL’s stranger-to-the-adoption rule—a rule of
construction: The adoptive child is presumptively barred
. . . if the donor is not the adoptive parent . . .
 Can overcome by evidence of the donor’s intent
to include adopted child.
 Ct interpretations/Exceptions:
i. Take if adopted before the
donor’s death
ii. Depends on the language used .
. . “A’s children” v. “A’s issue”
or “heirs of A’s body . . . “
iii. MINOR CHILD—majority of
jx. State that if the child of A
was adopted as a minor, there is
a presumption that a gift by T to
A’s children, issue, descendants,
or heirs includes the minor
adopted child . . . b/c of
likelihood that T would want to
include those that A had a
parent-child relationship with.
 Can be overcome by
expression of T’s intent.
iv. ADULT CHILDREN: Minary
v. Citizens Fidelity Bank &
Trust Co. 419 S.W. 340 (Ky.
1967)
 UPC § 20705(f):
presumptively excludes a
person adopted after
reaching the age of 18 from
a gift to the adoptive
parent’s children, issue,
descendants, or heirs by
someone other than the
adoptive parent . . . unless . .
. the adoptive parent was the
adoptee’s stepparent or
foster parent, or the
adoptive parent “functioned
as a parent of the adoptee
before the adoptee” turned
18
9
Ausness
T&E F ‘17
o
ii.
iii.
iv.
v.
AdoptionStanding: Only persons who have standing to
challenge the validity of the will are those who would take if the will
were not valid.
o The relationship btw adoption willsstanding= if a
person is adopted, ¬ for other relatives to gain standing to
challenge the will, the decedent’s collateral relatives must
first overturn any adoption by the decedent—why? B/C, if
adoption is valid.¬ collaterals ~ have standing because they
wouldn’t take if the will were not valid
 Will—valid, ¬ terms of will
 Will--~ valid, ¬ intestacy
 Intestacy= those who would take under the
intestacy statute—in the case of adoption=
the descendants
5. Equitable Adoptions
Posthumous Children
Nonmarital Children
Reproductive Technology and New forms of Parentage
1. Posthumously conceived Children
2. Posthumously Conceived Children and Wills & Trusts
3. Surrogacy & Opposite Sex Married Couples
4. Assisted Reproduction & Same Sex Couples
5. 2008 Amendment to UPC
Advancements & Hotchpot—If a child wishes to share in the intestate
distribution of a deceased parent’s estate, the child must permit the administrator
to include in the determination of the distributive shares the value of any property
that the decedent, while living, gave the child by way of advancement.
1. C/L—presumption that any lifetime gift by decedent to child is an
advancement—rationale= that the decedent parent would want an equal
distribution of assets among children and that true equality can be
reached only if lifetime gifts by the parent are taken into account in
determining the amount of equal shares.
a. Child predeceases the parent—if the parent makes an
advancement to a child and the child predeceases the parent, the
amount of the advancement is deducted from the shares of the
child’s descendants if other children of the parent survive.
2. Hotpotch-- the blending of items of property to secure equality of
division—esp. in cases in which advancements of an intestate's property
must be made up to the estate by a contribution or by an accounting
a. opting out: Where the advancement exceeds the amount of the
estate, the child that has received the advancement “opts out,”
and the estate is divided among the other children (p.122)
3. Modern Law (UPC §2-109) (p. 123)—reverses C/L presumption of
advancement—instead . . . A lifetime gift is presumed not to be an
advancement unless it is shown to have been intended as such—but . . .
o the UPC requires that the intention to make an advancement be
declared in writing and signed by the parent or child.
o UPC also reverses the C/L’s rule when the child predeceases
the parent—instead, the advancement is not taken into account
in determining the share of the child’s descendants. UPC § 2109 (c)
10
Ausness
T&E F ‘17
o
o
f.
Advancements are to HEIRS—thus, it applies to spouses, collaterals,
descendants, etc. – expansive
Advancement amount is determined at the time the heir came into
possession of the property or as of the time of the decedent’s death
OTHER ISSUES RE DETERMINING WHO TAKES VIA INTESTACY
i. Simultaneous Death: Survivorship Requirement states that an heir must survive
the decedent by 120 hours (5 days) with clear and convincing evidence of
his/her survival in order to take a share under the intestate estate-- otherwise the
heir is considered to have predeceased the decedent and will not take under the
intestate estate. USDA/ UPC § 2-104 and 2-702.
o No common disaster requirement
ii. BAR TO SUCCESSION
1. Slayer Rule—: Distinction is drawn between voluntary and
involuntary manslaughter—VMS= an INTENTIONAL & UNLAWFUL
KILLING—with design and purpose to kill—IVMS—caused by an
unlawful act, but is NOT intentional.
o Constructive Trust—(Black’s): An equitable remedy by which a
court recognizes that a claimant has a better right to certain property
than the person who has legal title to it.
o UPC=slayer is treated as disclaiming the property—as
having “died immediately before” the V.
o the obligation of the constructive trustee is simply to turn the
property over to the constructive beneficiary
 E.g., In re State of Mahoney—“A constructive
Trust is nothing but ‘the formula through which the
conscience of equity finds expression.’ Property is
acquired in such circumstances that the holder of
legal title may not in good conscience retain the
beneficial interest. Equity, to express its disapproval
of his conduct, converts him into a trustee.”
 Exceptions where imposition of a
constructive trust is improper:
a. One who killed while INSANE
b. If slayer had a VESTED interest in the
property
o Mercy Killing: Exception. In re Estate of Schunk, 760 N.W.2d 446
(Wis. App. 2008) (noting that the “legislature’s intent to allow a
testator to dispose of his or her property as the testator wishes
notwithstanding the fact that an intended beneficiary has unlawfully
and intentionally deprived the testator of his or her life . . . .”
o UPC § 2-803 (bars slayer from succeeding to PROBATE &
NONPROBATE property)
2. Abandonment of a Child: If it is shown by clear and convincing evidence
that the parental rights of the parent could have been terminated for nonsupport,
abandonment, abuse, or neglect, ¬ barred from succession—or if parental rights
had been terminated before decedent’s death. UPC § 2-114; UPC §§ 2-1105 &
2-1106
3. Disclaimer: (or Renunciation): When an heir disclaims or renounces, in
whole or in part, of an HIS/HER interest (i.e. only the disclaimed interest
passes) of an intestate share, the share is considered to have predeceased
11
Ausness
T&E F ‘17
the decedent and will not inherit the disclaimed portion . . . ¬ it skips the
person disclaiming and goes to his/her descendants.
o Exceptions:
o Avoiding Taxes—Uniform Disclaimer of Property
Interests Act (“UDPIA”), UPC §§ 2-1101 – 2-117—no
time limit on ability to disclaim
 Other Jx—require disclaim w/in 9 months
o Avoiding Creditors ****-- STATE LAW RELATIONBACK DOCTRINE—disclaimer statute that provides
that a disclaimer relates back for all purposes to the date
of the decedent’s death
 Function of doctrine—Because the disclaimer
relates back to the date of the intestate
decedent’s death, the property is treated as
passing directly to others, bypassing the
disclaimant.
 ~ likely apply if disclaimed after filing
of bankruptcy-- ¬ federal courts will
not respect state law relation-back
doctrine.
o Federal Tax Lien: SCOTUS: IRS—“The disclaiming
heir . . . inevitably exercises dominion over the
property. He determines who will receive the
property—himself if he does not disclaim, a known
other if he does . . . . This power to channel the estate’s
assets warrants the conclusion that . . . [disclaimant]
held ‘property’ or a ‘right to property’ subject to
Government liens . . . . The control rein [the
disclaimant] held under state law . . . rendered the
inheritance ‘property’ or ‘rights to property’ belonging
to him within the meaning of the [IRC], and hence,
subject to the federal tax liens . . . .” Drye v. U.S. , 528
U.S. 49 (1999).
o Common reasons for disclaiming—avoiding estate taxes,
outstanding judgments or liens, or student financial aid.
12
Ausness
T&E F ‘17
II.
WILLS:
Definitions:
1 Attestation Clause: A provision at the end of an instrument (esp. a will) that is signed by the
instrument's witnesses and that recites the formalities required by the jurisdiction in which the
instrument might take effect (such as where the will might be probated). • The attestation
strengthens the presumption that all the statutory requirements for executing the will have been
satisfied.
2 Substantial Compliance Rule: The rule that if a good-faith attempt to perform does not
precisely meet the terms of an agreement or statutory requirements, the performance will still be
considered complete if the essential purpose is accomplished --- Under the Uniform Probate
Code, a will that is otherwise void because some formality has not been followed may still be
valid under the substantial-performance doctrine.
3 Self-Proving Will/Self-Authenticating Will: A will proved by a self-proving affidavit. This
method of proof, recognized in a growing number of states, eliminates the practical problems of
obtaining the live testimony of witnesses.
o Self-proving affidavit: An affidavit attached to a will and signed by the testator and
witnesses certifying that the statutory requirements of due execution of the will have been
complied with. The affidavit, which recites the facts of the will's proper execution, permits
the will to be probated without the necessity of having the witnesses appear and prove due
execution by their testimony.
o Gives rise to a rebuttable presumption of due execution
STATUTE OF
FRAUDS
WILLS ACT
UPC
KY
WRITING
YES
YES
YES
YES
SIGNED BY
TESTATOR
YES
YES
YES
YES
FOOT OR END
THEREOF
NO
YES
NO
YES
TWO W. RULE
(signature made or
acknowledged by
T in presence of
2)
PRESENT AT
THE SAME
TIME
SIGNED IN
PRESENCE OF
TESTATOR
YES--3
YES
YES
YES
NO
YES
NO
NO
NO
YES
NO
YES
AND EACH
OTHER
NO
YES
NO
YES
13
Ausness
T&E F ‘17

EXECUTION OF WILLS
a. WILL FORMALITIES AND FORMS
o Formalities Purposes:
i. Ritual/Cautionary Function: to make sure that the T
intended to make an at-death distribution of property—
i.e. ensure against conjecture/hypothesizing about what
the T wanted to have done with his prop.
ii. Evidentiary Function: to create reliable evidence of the
T’s intent—i.e. false positives, thus ensuring T’s actual
intent is carried out
iii. Protective Function: prevention of undue
influence/capacity because the process involves multiple
individuals
iv. Channeling Function: Increase the confidence of the T
that the T’s desires will actually be carried out at death
and makes it easier for the court system to deal with will
process.
b. ATTESTED WILLS
1. WILLS ACT
a. Writing: 
b. Signed by Testator
i. mark/cross/abbreviation/initials
UPC §2-502 Execution; Witnessed or Notarized Wills; Holographic Wills
can be sufficient, so long as the
(a) [Witnessed or Notarized Wills]. Except as otherwise provided in
subsection (b) and § 2-503, and § 2-513, a will must be:
T intends the mark to be his
1. In writing
signature
2. Signed by the testator or in the T’s name by some other
ii.
If assistance in signing,
individual in the testator’s conscious presence and by the
T’s direction
signature is valid if T intended
3. Either:
to adopt the documenti as his
A. Signed by at least two individuals, each of
will.
whom signed within a reasonable time after
the individual witnessed either the signing of
iii. If someone else signed, ¬ valid
the will as described in paragraph (2) or other
so long as it was at T’s direction
individual authorized by law to take
acknowledgements
and in his presence—e.g.,
B. Acknowledged by the testator by a notary
conveying consent to another
public or other individual authorized by law to
signing his will on his behalf by
take acknowledgements
(b) [holographic wills]. A will that does not comply with subsection (a) is
smiling.
valid as a holographic will, whether witnessed or not, if the signature
iv.
Word Processor: typed
and material portions of the document are in the T’s handwriting
signature in cursive font and
(c) [Extrinsic evidence.] Intent that a document constitute the T’s will
can be established by extrinsic evidence, including, for holographic
then printed document. Two
wills, portions of the document that are not in the T’s handwriting.
W’s signed printed doc. By
hand and, the will was notarized
Taylor v. Holt, 134 S.W.3d 830
(Tenn. App. 2003)
 Examples:
 In re Pavlonko’s
Estate—argument that
T lacked required
testamentary intent
because he never
intended to execute the
14
Ausness
T&E F ‘17
document he actually
signed
 wife and husband
signed one another’s
will
 attempt to probate the
will he signed even
though it had his wife
giving—Ct. agreed w/ct
below that Wills Act
require “Every will, . . .
shall be in writing and
shall be signed by the
testator at the end
thereof,”  the paper
which recited that it was
the will of Hellen and
intended and purported
to give Hellen’s estate
to her husband, could
not be probated as the
will of Vasil and was a
nullity."
c. Foot or End:  (Subscription)
d. Two Witness Rule: 
i. Order of Signing: Generally, T
must sign or acknowledge the
Model Execution Ceremony (p. 159)
will before the witnesses attest.
1. Fasten all pages together securely, and specify the exact # of pgs.
Exception: If they all sign “as a
2. L. confirms T has read will and understands its contents before calling
part of a single (or continuous)
W’s and notary
transaction, the exact order of
3. Lawyer, T, two disinterested w, and notary are brought together in a room
signing is not critical.”
with the door closed, and no one enters or leaves until ceremony is
Restatement (Third) of Property
finished
 Contemporaneous: In re
4. L asks the T three questions: (1) “Is this your will?” (2) Have you read it?
Do you understand it? (3) “Does it dispose of your property in accordance
Colling, [1972] 1
with your wishes?”
W.L.R. 1440 (ch.).
5. L confirms that T wishes the W to witness signing of will
 started to write
6. W should be able to see the T sign, and T should sign/initial each margin
signature in
of the page of the will, and then signs name at end.
presence of two
7. One of the W reads aloud attestation clause, attesting that all requirements
w.
were complied with

before finishing
8. Each W then signs and writes address beside signature, signing in a place
to write his last
so all people involved can see W sign
name—name
9. T and W’s sign a self-proving affidavit, typed at the end of the will,
swearing that the will was duly executed so notary can notarize
“George
10. L reviews doc to ensure everything above has occurred
Colling” one W
11. L writes a short memo to file noting that L’s usual execution protocols
left to attend a
were followed
patient in
12. Properly ensure will is copied and is either with T or, if it stays with L,
another part of
placed in a firm’s vault or safe deposit box.
the ward
15
Ausness
T&E F ‘17

w returned after
T finished
writing his
name and W1
had written her
name
 both T and w1
acknowledge
their signatures
t. W2
 W2 then
signed—strict
compliance—T
must finish
signature while
in the presence
of both Ws—
tge T must sig
nor
acknowledge
his signature
before either
Ws attest
e. Present at the Same Time:  W’s have
to be present when the will is signed or
acknowledged
f. Signed in the Presence of the Testator:
i. “Presence”
o Line of Sight Test—W
signs in the presence of
testator only if the T is
capable of seeing the W in
the act of signing—but does
not actually have to see the
W sign.
o Conscious Presence Test:
W is in the presence of the
T if the T, through sight,
hearing, or general
consciousness of events,
comprehends that the W is
in the act of signing—i.e.
mental apprehension is
necessary.
g. And in the Presence Each Other:
2. UPC §2-502
a. Writing: 
b. Signed by Testator:
c. Foot or End: X
d. Two Witness Rule: 
e. Present at the Same Time: X
16
Ausness
T&E F ‘17
f.
Relief from strict compliance:
Substantial compliance rule—focuses on
being “close” to the statutory compliance
rules
Harmless Error Rule-statutorily created
exception, ignoring traditional statutory
elements and instead focuses directly on
the intent of the testator that the document
be effective.
Signed in the Presence of the Testator:
X
o Delayed Attestation: UPC § 2502(a)(3)(A) (p.144). – W. who sees
testator make or acknowledge
signature must attest “within a
reasonable time.”
o In re Estate of Miller, 149
P.3d 840 (Idaho 2006)
(holding that attestation
could extend until after the
T’s death)
o UPC §2-502(a) = dispenses w/
presence requirement---- BUT . . .
conscious presence test applies if
the T directs another person to sign
on the T’s behalf
g. And in the Presence Each Other: X
o UPC §2-502 amend 2008=
notarization as an alternative to
attestation by W’s
3. Attestation Clauses—recites that the will was
duly executed in accordance with the particulars
of the applicable Wills Act.
o Creates a rebuttable presumption
of due execution
Contemporary practice= to augment
with an affidavit known as a selfproving will. (also gives rise to
rebuttable presumption of due
execution)
o Example—Wills Act : (148): “We
certify that the above instrument
was on the date thereof signed and
declared by JOHN DOE as his will
in our presence and that we, at his
request and in his presence and in
the presence of each other, have
signed our names as witnesses
thereto, believing JOHN DOE to be
of sound mind and memory at the
time of signing”
ii. Strict Compliance Rule: Every requirement of the Wills
Act must be strictly complied with.
 Establishes a conclusive presumption of invalidity
for imperfectly executed instruments, denying
probate no matter how trivial the defect or how
overwhelming the testator’s intent is.
 Purpose: to prevent false positives
o In re Groffman [1969]
17
Ausness
T&E F ‘17
o
Executed will at home of friends—prepared
by lawyer—TB & L: “ I should like you
now to witness my will—already signed—T
went to adjacent dining room where T
signed as a W—L was not present when T
acknowledged
iii. Interested Witnesses & Purging Statutes
1. Purging Statutes: If the W is necessary for a
will’s validity—i.e. to comport with the two W.
rule-- ¬ purging statutes allows a will attested by
an interested witness to be admitted to probate,
but voids any bequest to the interested W.
o If the interested W. is a family
member that would take by
intestacy, most jx purge the excess
benefit that would have been taken
by intestacy.
o W. ¬ necessary because there are two
> uninterested W’s, ¬ the interested
W is considered supernumerary and
 will take the full devise
o E.g., In re Estate of Morea,
645 N.Y.S.2d 1022 (Sur.
1996).
 Attested by 3 W—
A/B/C
 A=disinterested;
B=T’s son and
beneficiary under
will, but devise to B
< intestate share, so
no excess benefit to
be purged; C=
friend of T and
beneficiary
 B~ interested b/c
receives < intestate
share
 C is supernumerary
o UPC § 2-505(b) (1990): does not
require that any of the W’s be
disinterested
2. Self-Proving Affidavits: An affidavit attached to
a will and signed by the testator and witnesses
certifying that the statutory requirements of due
execution of the will have been complied with.
The affidavit, which recites the facts of the will's
proper execution, permits the will to be probated
without the necessity of having the witnesses
appear and prove due execution by their
testimony.
18
Ausness
T&E F ‘17
o
o
UPC § 3-406 (1990, rev. 2008)
If a will is self-proved, question of due
execution may NOT be contested
“unless there is evidence of fraud or
forgery affecting the acknowledgement
of or the affidavit (but excepting other
grounds—e.g., undue influence or lack
of capacity
Self-proving affidavit v. attestation
cl= self-proving affidavit is a sworn
declaration under oath.
UPC § 2-504 (1990, rev. 2008) two
kinds:
i. One-Step Self-Proving
Affidavit: Combined attestation
clause plus self-proving
affidavit—so T and Ws sign
their names only once.
ii. Two-Step Process: authorizes a
separate self-proving affidavit to
be affixed to a will already
signed and attested.
o Affidavit must be signed by
T and Ws in front of notary
after the T and Ws have signed
the will
Ch. 5 Wills Constructions
iv. Ad Hoc Relief from Strict Compliance
1. Substantial Compliance Rule: If the manner in
Reformation, substantial
which the instrument was executed satisfied the
compliance or harmless error
purposes of the Wills Act, then the instrument is
rule
deemed in strict compliance with the Wills Act
and admitted to probate.
 Two Questions posed:
a. Does the noncomplying document
express the decedent’s testamentary
Allows a court to deem a
intent?
noncompliant will to be in
b. Does the document’s execution
compliance with the Wills Act
sufficiently approximate the Wills Act
Formalities such that a court could
conclude that it serves the purposes of
Allows a court to use its
the Wills Act?
dispensing power and excuse
o Functions to make the
noncompliance based on the
presumption of invalidity
T’s testamentary intent.
rebuttable
2. Harmless Error Rule: UPC § 2-503. Harmless
Error: A document is treated as in compliance
with statutory will formalities if it is shown by
clear and convincing evidence that the decedent
intended the document or writing to constitute
the decedent’s will, revocation of the will, an
addition to or alteration of the will, or a partial
or complete revival of his formerly revoked will
or any portion thereof
 Typically, this is going to occur where there
is an issue with the signature or attestation
requirements
 BOP= proponent of defective will
 Examples:
19
Ausness
T&E F ‘17

Understanding—doctrine questions to ask:
1. Does the document strictly comply with the statutory elements for
an attested will?
2. If ~, ¬ does it qualify as a holographic will?
3. If ~, ¬ is there “substantial compliance with statutory elements?”
4. Should the will be allowed under harmless error approach?
5A. if it is a W2 or greater, and nothing is applicable, ¬ apply DRR,
asking whether T, if what’s known in hindsight, would have
preferred W1 or intestacy? In other words, was there a mistake of
fact or law?
also addressing the revocation issue—i.e. what kind of
revocation is it? Implied (inconsistency)? express? Partial?
Whole disposition?

5B. If harmless error~ applicable, ¬ could a constructive trust be
imposed (strong argument if wrongful conduct—to prevent unjust
enrichment) (p230)—really occurs where there is a revocation of
sorts
HARMLESS ERROR AND REVOCATION BY
PHYSICAL ACT
Issue: (230: UPC§ 2-503 states that the harmless
error rule applies only to a “document or writing
added upon a document”—so, although, by
wording, harmless error rule can be invoked to
overcome harmless error in the execution of a
Revocatory writing, it is unclear as to whether it can
be applied to a revocation by physical act)
Physical act is not a writing
So, unclear if intent to revoke is shown by clear and
convincing evidence, whether, under UPC it is
valid.
EXAM: if wrongful conduct or mistake, ¬ argue
maybe imposition of a constructive trust.

In re Estate of Hall, 51 P.3d 1134 (Mont.
2002) (applying harmless error rule to
attestation)
o “Original Will” 1984 “Joint Will”
1997T asked L if draft could
stand as will until L sent the final
version L said yes, so long as T &
wife executed the draft & L.
notarized; both acts done; T told
wife to tear up “original will”
o T had wife and two children by a
previous marriage at death—one
daughter challenged “joint will.”
o  proponent must establish by clear
and convincing evidence that T
intended the will to be his will
In re Estate of Sky Dancer, 13 P.3d 1231
(Colo. App. 2000).
o 4p., typewritten instrument dated
Sept. 10, 1997, entitled “Last Will
& Testament,” but instrument
contained incomplete portions
o End of testamentary text was
followed by a large segment of
blank page
o No signature by T or any witnesses
o Stapled to it were two additional
pages labeled as an “affidavit” and
dated April 8, 1996 with T’s
signature and 2 W signature
o Rejection of the W bc ~ clearly
and convincingly evince
testamentary intent that “will”
constitute his will.
In re Probate of Will and Codicil of Macool
(addressing harmless error as applied to
defect in signature) (holding that for a
writing to be admitted into probate under
statute . . . the proponent of the writing
intended to constitute such a will must
prove, by clear and convincing evidence,
that (1) the decedent actually reviewed the
document in question, and (2) thereafter gave
his/her final assent to it. . . because without
either of these requirements, a trier of fact can
only speculate as to whether the proposed
writing accurately reflects the decedent’s final
testamentary wishes. . .

Thus, if reviewed and
assented to, ¬ a lack of
signature can be considered
20
Ausness
T&E F ‘17


needlessly formalistic and
excused under H.E.
o Key= testator’s intent that the
document at issue constituted her
binding and final testamentary will
 Cf. intent to change will or
otherwise make a
disposition w/o formalities
of a testamentary document
actually representing final
disposition.
o Woman  lawyer to change
beneficiaries—had a handwritten
notes, and, based on notes, wanted
lawyer to draft new will (thus, also
likely eliminating argument that
handwritten note constituted a
holographic will b/c. not intent that
note be will, even if intent that note
represent dispositions thereunder.
o “new” will was never read nor
signed
o Woman died w/in hour of leaving
office.
In re Estate of Javier Castro, No
2013ES00140 (Ohio C.P. June 19, 2013)
(p.191) (Wills Act requires a “writing”, and
a “document” under the harmless error rule,
but a writing is fundamental to the purposes
of the execution of formalities that a lack of
writing itself cannot be excused as harmless
. . . only a harmless error in executing a
document can be excused. ) (attestation
issue)
In re Estate of Stoker, 122 Cal. Rptr.3d
529 (App. 2011) (Harmless Error in
Revocation) (227) (see also p. 230 harmless
error in revocation by physical act)
o
o
Ex-gf example where it is a
handwritten non-holographic will
signed by T but not attested—not a
holographic will b/c not in T’s own
handwriting.
Arguments to be made (1) implied
revocation by inconsistency—
complete disposition in subsequent
testamentary document+ will stated
revoked prior will/trust ; (2) revoked
by physical act—i.e. subsequent
testamentary document expressly
revoking previous will/disposition
21
Ausness
T&E F ‘17
o
Minton v. Minton, 374 S.W.3s
818 (Ark. App.2010)—
Ausness made a point of
discussing, noting that it is
important to differentiate
between intents—testamentary
intent that an instrument be a
will/codicil v.s intent to
dispose of property in a
specific way in the future . . .
“The fact that the writing
references a future intention to
incorporate these changes into
a new formal will” does not
mean that the testator did not
intend , , , the note to have
binding force in the interim. –
Cf. In re Estate of Hall
Not validly revoked by physical act,
and nor valid subsequent
testamentary instrument
o Harmless error/dispensing powers,
so ok dispensing with attestation
requirements
c. Notarized Wills: A will is valid if it is signed by two witnesses
or if it is notarized, or is acknowledged by testator before
another individual authorized by law to take acknowledgements.
d. Holographic Wills: A will that does not comply with subsection
(a) is valid as a holographic will, whether witnessed or not, if the
signature and material portions of the document are in the T’s
handwriting.
 Attestation by Ws is not required
i. Preprinted Will Forms:
1. UPC § 2.502(b)(1990): (p.144): To be a valid
holographic will, only material portions must be
handwritten. Restatement (Third) of Proerty:
Wills and Other Donative Transfers § 3.2
cmt. b. material portion of a of a dispositive
provision are the words identifying the property
and the devisee.
a. Extrinsic Evidence. UPC § 2-502(c):
“Intent that a document constitute the
testator’s will can be established by
extrinsic evidence including, for
holographic wills, portions of the
document that are not in the testator’s
handwriting.”
 In re Estate of Kuralt, 15 P.3d 931
(Mont. 20000) (in determining
Note that this court looks at evidence
whether letter was holographic
of the decedent’s intended
codicil, the court looked to the
dispositions rather than whether the
surrounding circumstances to
decedent intended the instrument
ascertain whether T had
itself to constitute a will/codicil—cf.
testamentary intent to dispose of
In re Probate of Will and Codicil of
property, noting that carrying out
Macool
the testator’s intent is the court’s
duty.)
 Included in the surrounding
circumstances were length
of relationship, previous
disposition of part of
Montana property, that the
T desired to keep
relationship a secret, that
the letter expressed the wish
for x to inherit the
property—thus a
posthumous desire for x to
obtain property.
22
Ausness
T&E F ‘17
2. Some Jx: (1) implicitly incorporated by
reference; can observe preprinted text to find
testamentary intent. Material provisions. Printed
portions of a will form cane be incorporated into
a holographic will where there is testamentary
intent—preprinted material is incorporated
implicitly and the T’s handwritten words may be
read in the context of the preprinted words. In
re Estate of Gonzalez.
3. Other Jx: handwritten words “must be
intelligible without resort to words not in the T’s
handwriting. All other provisions, whether preprinted, typed, or written by others, are deemed
surplusage and must be ignored.” In re Ferree,
848 A.2d81 (N.J. Ch. 2003)—i.e. the
handwritten portions of the document, read
alone, must evince testamentary intent to dispose
of property.
1. REVOCATION OF WILLS
a. Revocation by Physical Act: A testator may revoke a will by
destroying it or otherwise physically performing some act on the
will that manifests the testator’s intent that the will is not to be
used to determine at-death disposition of property. Oral
declaration that a will is revoked, without more, is not enough to
revoke the will.
 Requirements:
4. Capacity to Revoke: testamentary capacity to
create a will also applies to revocation
o Examples:
 Incapacity: T executed will , ¬ was,
at a later date, adjudicated
UPC § 2-507. Revocation by Writing or by Act
incompetent; ¬, later still, T
(a) A Will or any part thereof is revoked:
physically destroys the will—
(1) By executing a subsequent will that revokes the
revocation ineffective because T
previous will or part expressly or by inconsistency;
lacked mental capacity when he
or
attempted to revoke will.
(2) By performing a Revocatory act on the will, if the
testator performed the act with the intent and for the
 Exception: could show
purpose of revoking the will or part, or if another
destruction occurred during
individual performed the act in the testator’s
a lucid interval.
conscious presence and by the testator’s direction.
 Duress: T had mental capacity, but
For purposes of this paragraph, “Revocatory act on
the heir apparent withheld food,
the will” includes burning, tearing, canceling,
drink, and medicine from Testator
obliterating, or destroying the will or any part of it.
who was physically disabled, until T
A burning, tearing, or canceling is a “Revocatory act
destroyed the will naming another
on the will,” whether or not the burn, tear, or
person as primary beneficiary—
cancellation touched any of the words on the will
revocation ineffective because heir’s
conduct amounts to duress, vitiating
capacity.
5. Intent to Revoke: animus revocandi—intent to
revoke the will
6. Physical Act (Satisfactory):
23
Ausness
T&E F ‘17
o
Thompson v. Royall (2019)—“This will is
null and void and to be only held by H.P.
Brittain instead of being destroyed as a
memorandum for another will if I desire to
makes the same. This 19 Sept. 1932” is not
enough to constitute a revocation by
cancellation where the statement is written
on the BACK of the will and codicil.
 But See UPC § 507(a)(2) (allowing
revocation by a physical act of
cancellation whether or not the
cancellation touches any of the words of
the will)—so the codicil, for which the
cancellation was written on the back,
would have been revoked—will would
have been a closer call, bc the
cancellation was written on the back of
the manuscript cover, not the back of
the will itself . . .
7. Concurrence of Capacity, Intent, and Physical
Act
b. Revocation by Operation of Law: triggering events that can
partially/totally revoke a will automatically.
ii. Marriage of testator/Pretermitted Spouse: (p.240)
PRETERMITTED SPOUSE: UPC § 3-301: A valid
premarital will that leaves out surviving spouse whom
the decedent spouse married after executing his/her will
may take an intestate share of the deceased spouse’s
estate, unless the will indicates that (1) the omission was
intentional, or (2) the spouse is provided for in the will
or by a will substitute.
iii. Divorce of testator: (p.239) (UPC § 2-804. Revocation
of Probate and Nonprobate Transfers by Divorce; No
Revocation by Other Changes of Circumstances)
iv. Pretermitted heirs: PRETERMITTED HEIR: UPC § 2302: a child born after the execution of a parent’s will,
and not mentioned in the will, is entitled to a share of the
decedent parent’s estate.
v. Death of Beneficiary: Death of beneficiary automatically
revokes gift because property can only be transferred to
living people. See lapsing/anti-lapse statute
vi. Slayer statute: intestate slayer statutes are applicable in
the testate context as well. In instances where the
beneficiary murders the testator, the beneficiary will be
precluded from taking a beneficial interest in the
property either by (1) statute or (2) through an imposed
constructive trust, preventing unjust enrichment.
vii. Alienation: If a testator makes an inter vivos transfer of
an item subject to a specific devise or bequest in the
testator’s will, that gift is revoked by operation of law.
See Ademption by extinction section.
c. Revocation by Subsequent Writing
24
Ausness
T&E F ‘17
DRRRevival (class)
In re Estate of Alburn
1955—W1 in Milwaukee
1959—W2 Kankee, IL
1960—Return to Wim and tore up
Kankee will, and told friend she
wanted WI will to stand
WI law—W1 could only be valid if
it was re-executed--- she didn’t
execute?
Ct’s choices—(1) declare her intestate
bc the W1 had been revoked by W2
and not re-executed, and W2 was had
been revoked by tearing; (2) apply
DRR to save W2 by using the fiction
that T’s revocation of w2 was
dependent on W1 being revived,
which, by law, couldn’t happen—ct
looked at DRR factors and decided
that T would rather hanve w2 back
than have prop pass via intestacy.
viii. Express Revocation—usually includes as express
provision in newly executed will
ix. Revocation by Inconsistency (Implied)
x. New Will or Codicil?
o ***** NOTE: If a T validly revokes a will
and the codicil still exits, the codicil cannot
be admitted to probate because, if a will is
destroyed and  revoked, you can’t have a
codicil without a will—i.e. codicil’s cannot
stand alone.
d. Presumption of Physical Act Revocation: Where the will of the
testator cannot be found upon testator’s death, there is a
rebuttable presumption that the will was revoked by physical act.
e. Harmless Error in Revocation
f. Partial Revocation by Physical Act
 HARMLESS ERROR AND REVOCATION
2. Dependent Relevant Revocation (“DRR”) (Form of Conditional
revocation)—If a T undertakes to revoke her will upon a mistaken
assumption of law OR fact, ¬ under DRR, the revocation is ineffective if
the testator would not have revoked the will but for the mistaken belief.
 Treats the Ts mistake as negating her revocatory
intent.
o REVIVAL: Basically, that the revocation of
W1 was conditioned on the validity of W2’s
execution, meaning that if W2 isn’t valid,
then that the T would have preferred W1 to
be probated, meaning that it is treated as
though W1 was never revoked.
 Cts will look at (1) the circumstances surrounding
W2 and W1, (2) compare the various wills and
intestate statute, ¬ (3) determine, based on these
factors, whether the T would have, in hindsight,
preferred the old will back of for property to pass by
intestacy.
o Examples:
o
LaCroxz v. Senecal, 99 A.2s 115 (Conn. 1953)
(232)
 Will; ¬ codicil
 So partial revocation
 Beneficiary at issue was friend, so
wouldn’t take under intestacy statute.
 Subscribing W. of codicil was husband
of beneficiary—voiding the gift to the
wife beneficiary
 Only difference between will and
codicil was insertion of names of
another beneficiary—thus the wife
beneficiary’s gift was the same under
the codicil as the original provision of
the will
 Issue: whether the doctrine of DRR may
be invoked to sustain a gift by will,
25
Ausness
T&E F ‘17
o
when such gift has been revoked in a
codicil which substantially reaffirmed
the gift but was void by reason of a
subscribing W.
 Here, would do harmless error
as applied to the codicil—can
it nonetheless excused? (focus
on intent of T)
 IF no,¬ can DRR be applied?
(focuses on whether T would
want to previous provision to
stand if she had known this
codicil wasn’t valid, such to
avoid intestacy?)
In re Estate of Alburn (side, cf. revival and DRR
relationship)
o
Partial revocations by physical act—
 T5k to mollie
 Crosses out and 7.5k is written in
instead
 5k likely treated as a revoked gift
based on evidence that the T made
the change
 7.5k gift fails because it ~ follow
execution requirements (if it had T’s
signature/initials.etc, the ct. might
UPC § 2-509. Revival of Revoked Will
have allowed it as a holographic
(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.
codicil—not likely though—also
The previous will is revived if it is evident from the circumstances of the revocation of the
maybe harmless error would apply)
subsequent will or from the T’s contemporary or subsequent declarations that the T

7.5k, even though it fails, ct.
intended the previous will to take effect as executed.
considers it as T’s intent-- and
(b) if a subsequent will that partly revoked a previous will thereafter revoked by a
usually apply DRR and ignore the
revocatory act under . . . , a revoked part of the previous will is revived unless it is evident
crossout, concluding that T would
from the circumstances of the revocation of the subsequent will or from the T’s
surely have preferred Mollie to get
contemporary or subsequent declarations that the T did not intend the revoked part to take
5k instead of nothing—so it is
effect as executed
viewed as though the smaller gift is
(c) if a subsequent will that revoked a previous will in whole or in will is thereafter
revoked conditioned upon the
revoked by another, later will, the previous will remains revoked in whole or part unless it
validity of the larger gift—since
or the revoked part is revived. The previous will or its revoked part is revived to the extent
larger gift fails, there is no
it appears from the terms of the later will that the T intended the previous will to take
effect
revocation of 5k gift
 SECOND example—
change 7.5 to 2.5, ¬ it is
difficult because T’s intent
isn’t as clear,  it is likely
that Ct. will be reluctant to
apply DRR
3. Revival of Revoked Wills:
a. UPC’s approach where subsequent will revoked prior will: If
subsequent will is revoked, and there is no explicit indication
that the prior will, W1 was or wasn’t to be revived courts will
ascertain whether T intended at the time T revoked W2 as to
whether the T intended that the revocation of W2 reinstate or
26
Ausness
T&E F ‘17
revive W1. Cts will use extrinsic evidence such as the
circumstances surrounding the revocation of W1 and any written
or oral statements testator may have made re testator’s believe
that W1 was to be effective.
iii. COMPONENTS OF A WILL
1. Integration: All papers that are present at the time of execution and are
intended to be a part of the will are treated as a part of the will.
a. In re Estate of Rigsby, 843 P.2d 856 (Okla.App. 1992).
2. Republication by Codicil: Codicil = a formally executed document that
adds to, subtracts from, or otherwise changes a will—republication reexecutes the original, thus changing the effective date of the entire will.
3. Incorporation by Reference (existing writings): A testator may
incorporate any writing NOT PRESENT at the time of the will’s execution into
the will by using language that (1) expresses an intent to incorporate the writing,
(2) describes the writing with reasonable certainty, and (3) indicates that the
writing is in existence AT THE TIME OF EXECUTION.


Key is that the
motivation of the T is
not to affect the
beneficiary—there is
some independent
significance for the act
other than solely how it
affects the beneficiary
Cf. p.381
UPC § 2-606
Nonademption:
Replacement
Property
Clark v. Greenhalge, 582 N.W.2d 949 (Mass. 1991):
A woman executes a will and refers to a memorandum that
bequeaths items of personal property to specific
beneficiaries.
 The memorandum is in the form of a notebook that is in
existence at the time of execution—via republication by
codicil
 Although the notebook is not titled as a memorandum, the
contents clearly list the specific bequests that are to be
incorporated into the woman’s will.
  There is an effective incorporation by reference.
4. Acts of Independent Significance (NON TESTAMENTARY
ACTS=KEY): UPC § 2-512: A testator may dispose of property by
reference to acts or events outside of the will, regardless of whether the
acts or events occur before or after the execution of the will and the
testator’s death. However, the act or event must have some significance
other than the disposition of property to be valid.
 In re Tipler, 10 S.W.3d 244 (Tenn. Ct. App. 1998)
o A woman executes a codicil, indicating that her
husband’s will should control the disposition of her
estate in the event that he predeceases her.
o Although the husband has not yet executed a will,
the woman has effectively referred to an
independent act outside of her will.
o Further, the doctrine of independent significance is
satisfied, because the husband’s execution of his
own will had a sufficient purpose other than the
disposition of the woman’s estate.
o Subsequently, the husband executes a will and
predeceases the woman. The husband’s will guides
the disposition of the woman’s estate upon her
death.
 “Automobile I own at death to Mollie” 
 1k to all employees at time of death 
27
Ausness
T&E F ‘17




“To Mollie ‘the contents of my house’”
“Contents of the right-hand drawer of my test to Mollie” 
“Contents of my safe deposit box in Security Bank” 
“ I have put in my safe deposit box in Continental Bank
several shares of stock in several envelopes. Each envelope
has a name on it of the person I desire to receive the stock
contained in the envelope.” –seems testamentary in nature,
delineating
5. Lists of Tangible Property: UPC § 2-513 (p. 252) A T may refer to a
written list of tangible personal property, regardless of whether or not it
is in existence at the time of the will’s execution, (not money) in a will,
so long as the list is : (1) signed by the testator, and (2) describes the
items AND beneficiaries with reasonable certainty.
 Can be altered after its preparation
 No attestation requirement
 No limit on the value of property
 Broader than incorporation by reference because it can be
created after.
6. Pour-Over Provisions: A clause in a will making a gift to an inter vivos
trust is called a pour-over provision.
 Reasons a T may prefer the pour-over technique
i. An inter vivos trust is easier to amend than a will
ii. An inter vivos trust can serve as a receptacle for a
variety of other assets, such as life insurance proceeds
and annuity payments, to provide a unified disposition of
the testator’s property
iii. The T. may pour-over into a trust created by someone
else, such as a spouse
iv. CONTRACTS RELATING TO WILLS: Contracts to (1) make; (2) not make--i.e. die intestate; (3) revoke; (4) not revoke a will—These sorts of contracts do
not affect wills law—but they do affect how property will ultimately be
distributed.
1. Contracts to Make a Will: If a testator promises another to make a will in
their favor, but then not follow through as expected, if the promise is
enforceable under contract law, it will be enforceable against the estate
of the breaching promisor.
 Remedy:
 Constructive Trust: Imposition of a constructive trust in
favor of the promisee and will be enforced against estate
assets
o Functions: promisee takes the property as a creditor,
UPC § 2-514. Contracts Concerning Succession.
before the beneficiaries or intestate heirs take their
shares.
A contract to make a will or devise, or not to revoke
 Examples:
a will or devise, or to die intestate, if executed after
 Caregiving and contracts to make a will
the effective date of this article, may be established
(p.257)
only by
 Quantum Meruit. Usually these promises are oral—and for
(i) provisions of a will stating material provisions of
services rendered and  are not valid under the statute of
the contract,
frauds—promisee may then bring a quantum meruit action
for the value of services rendered.
(ii) an express reference in a will to a contract and
extrinsic evidence proving the terms of the contract,
or
(iii) writing signed by the decedent evidencing the
contract.
The execution of a joint will or mutual wills does
28
Ausness
T&E F ‘17
o
Dilemma is better dealt with by
using an inter vivos and testamentary
trusts than with a will contract
Example: Green v. Richmond, 337 N.E.2d 691
(Mass. 1975):
 Man met woman and proposed, but backed
out because of a “mental hang-up.”
 Instead, orally promised that if she would
stay with him, he would give her his entire
estate—ended up being >7 mil.
 Woman stayed, providing a variety of social,
domestic, and business services
 Man died w/o included woman included in
will
 Woman sued for value of her services (if the
contract had been in writing, it would have
been for the entire estate)
 Ct. awarded quantum meruit for
services rendered
2. Contracts Not to Revoke a Will:
 Often occurs with respect to spouses who execute wills with
reciprocal terms.
o Mirror image wills tend to prompt claims of implied
promises not to revoke—especially when the survivor of a
second marriage changes the will.
o ARGUMENT= that the contract not to revoke becomes
irrevocable upon death of the decedent spouse
 Example: Keith v. Lulofs, 724 S.E.2d 695 (Va.
2012)
 Reciprocal wills—issue is whether the wills
are irrevocable
 Arvid & Lucy—each had a child from a
previous marriage
 Executed reciprocal wills—each leaving the
estate to the first surviving spouse and then
to the children equally
 Arvid predeceased Lucy—Lucy executed a
new will, leaving her entire estate to her
child and completely leaving out Arvid’s
child
 Argument is that Arvid and Lucy executed
reciprocal wills that became irrevocable
contracts upon the death of either party.
 “when the reciprocal testamentary
provisions are made for the benefit of a third
party, there is sufficient consideration for
the contractual element of the will to entitle
the beneficiary to enforce the agreement in
equity, provided that the contract itself is
established
o Required Proof= of the contractual
nature of the agreement between the
29
Ausness
T&E F ‘17

testators must be “clear and
convincing evidence.” (p.261)
 Joint wills= one instrument executed by two persons as the will of
both—probated at the time one of them dies as the decedent’s will—
when the other dies, the will is gain probated as the will of the
second decedent.
 Mutual wills= (reciprocal or mirror-image wills) are separate wills
of two persons that contain mirror-image provisions
CAPACITY AND CONTESTS
i.
CAPACITY TO MAKE A WILL: For a will to be valid, the testator must have
testamentary capacity at the time of execution.
 Requirements: UPC § 2-501. Testator must be . . .
i. 18 years old
ii. of sound mind—AT THE TIME WILL IS EXECUTED – this
means that the exception for someone who may otherwise
satisfy the test for testamentary capacity but nonetheless is
suffering from an insane delusion.
iii. BOP is on the contestant of testamentary capacity.
 Test for Mental Capacity: Testator must have, at the time the will is
executed, the ability to understand:
i. The nature and extent of his/her property.
ii. The natural objects of his or her bounty (i.e. heirs and
beneficiaries)
iii. The nature of the testamentary act being performed—i.e. the
nature of his actions
iv. The disposition of property set forth by the will – the extent of
his estate.
 NOTES:
o EXCEPTION:
 Lucid Interval: Rstmt: A person who is
mentally incapacitated part of the time but
who has lucid intervals during which he/she
meets the standard for mental capacity can,
in the absence of an adjudication or statute
that has contrary effect, make a valid will or
a valid inter vivos donative transfer,
provided such will or transfer is made
during a lucid interval.
 MRPC language—dealing with a
client with diminished capacity. R.
1.14
o Capacity to make a will requires less mental ability
than to make a contract or to complete an
irrevocable lifetime gift
o Examples:
1. In re Wright’s Estate, 60 P.2d 434 (Cal. 1936)
 Testator—left most of estate to his friend
 Daughter appealed (although she wasn’t excluded)
 Drawer of will/notary public and relator/ and two
subscribing Ws testified that they were of the
30
Ausness
T&E F ‘17
opinion testator was of unsound mind at time of
will’s execution
 Testimony cannot be too weak and unsubstantial
to support theory that testator was of unsound
mind at time of will’s execution—testimony was
based on “mere trivialities”
 W1; Relator= “funniest will she had ever seen” b/c
it gave 1.00 to each of a number different persons;
“thought him “queer” for a long time; did not have
in mind the legal description of the property (this
is a valid factor)
 W2: in his opinion, T hadn’t been of sound time
for a long time—when pressed as to why he had
this opinion, he was unable to say more than that
he considered him of unsound mind for some time
prior to making the will—so no real reason—just
thought that T was of unsound mind.
 W3: known T for 16 yrs—belief, that on date will
was executed, he was unsound mind—reasons—T
had a “serious operation some years prior; he once
told her that he had lost 50 k in a bank failure and
that she was sure that the way he lived alone in his
little shack, with all the dirt and junk he had that
he was not right; he once gave her a fin that he had
caught and found it had been soaked in kerosene;
once came to her house and insisted on buying her
household furniture
 W4 did same as w3
 W5 . . .
o Ct. Testamentary capacity cannot be
destroyed by showing a few isolated acts,
foibles, idiosyncrasies moral or mental
irregularities, or departures from the
normal unless they directly bear upon and
have influenced the testamentary act.
2. Wilson v. Lane, 614 S.E.2d 88 (Ga. 2005):
 Eccentricities, age alone, or peculiarities are
not enough—“eccentric habits and absurd
beliefs do not establish testamentary
incapacity.”
 Vague references to incapacity are not enough
to eliminate testamentary capacity
 Diseases: showing that the testator may have
been suffering from Alzheimer’s, without
showing how the disease prevented the
testator from having a decided and rational
desire regarding the disposition of her
property, is insufficient to set aside a will for
lack of testamentary capacity
3. Breeden v. Stone, 992 P.2d 1167 (Colo. 2000)
(INSANE DELUSION) (see below)
31
Ausness
T&E F ‘17

ii.
*** Remember—here,
it is important to
remember that there
must be a casual
connection between the
insane delusion and the
disposition of the
property***
man executes a will while using alcohol and cocaine
and suffering from mood swings, as well as
worrying excessively about nonexistent threats
against his and his dog’s lives.
 The man able to”
 index the major categories of property in his
estate,
 provide his home and rental addresses,
 and identify the sole beneficiary by name
and address.
 The will is legible and logical in content and
reasonably sets out the man’s intent
regarding his estate.
o The man is of sound mind and has
testamentary capacity
 Neither Breeden’s chronic substance abuse
or the anxiety that led him to commit suicide
deprived him of testamentary capacity
4. In re Estate of Washburn, 690 A.2d 1024 (N.H.
1997)
 A woman executes several wills while suffering
from moderate to advanced dementia and is
subsequently diagnosed with Alzheimer’s disease.
 Each of the wills is vastly different and contradicts
statements made by the woman about her wishes
regarding the disposition of her property.
 Around the same time, the woman also fails to
recognize her relatives (i.e., the natural objects of
her bounty) and
 often confused and forgetful.
o The woman is not of sound mind and
lacks testamentary capacity
DEFECTS IN CAPACITY: Grounds for a will contest in which the contestant
alleges that a will executed with proper formalities—i.e. Wills Act—is
nonetheless not voluntary because of the incapacity of the testator, undue
influence, duress, or fraud.
a. Insane Delusion (lack of capacity): Insane delusion is a defect in
capacity under which the testator adheres to a (1) false conception of
reality against all rational evidence, such that the (2) will or some part
therein is a product of the insane delusion—i.e. will/provision was a
product of the insane delusion/ the delusion had an impact on the
disposition. (see Breedon v. Stone—there must be a causal relationship
btw the insane delusion and the disposition of the estate)
 If a testator passes the testamentary capacity test but nonetheless
suffers from an insane delusion, a court will invalidate the will (or
pertinent provisions therein) that are a product of the insane
delusion.
 BOP: POE
32
Ausness
T&E F ‘17

Insane delusion differs from a mistake—see Wills: Construction—
cts. are more prone to invalidating wills or provisions resulting of
insane delusion
o Examples:
1. In re Strittmater, 53 A.2d 205 (N.J. 1947)
 A woman executes a will, leaving her estate to a
militant suffrage organization.
 However, the woman suffers from a splitpersonality type of paranoia.
 Evidence of split personality
 Evidence also shows that the woman’s
love for her parents suddenly and
irrationally turned into hatred around the
same time that she developed a neurotic
paranoia and hatred toward men.
o Although the woman otherwise
has testamentary capacity, she
suffers from an insane delusion.
2. Breedon v. Stone, 992 P.2d 1167 (Colo. 2000):
 If a testator was suffering from insane delusions at
the time of executing his will, but the delusions
did not impact the distribution of his estate
and the testator was otherwise of sound mind,
must the will be set aside for lack of testamentary
capacity
o Unless there is a causal relationship
between the testator’s insane delusions
and the distribution of the estate, or the
testator otherwise lacked a sound mind,
the will cannot be set aside for lack of
testamentary capacity due to insanity.

T involved in a hit-and-run right before executing
a holographic will and killing himself
 “I want everything to go to Sydney Stone—
‘houses,’ jewelry, stocks . . . P.S. I was not driving
the vehicle. . . “
 Previous formal will and holographic codicil
leaving his estate to persons other than “Sydney
stone”
 T used cocaine and alcohol several years prior to
death
 Used those on night of suicide
 Thus, document—holographic will ~ include any
of T’s family—
 Drastic mood swings/paranoid fears about threats
against himself and his dog.
o Neither Breeden’s chronic substance
abuse or the anxiety that led him to
commit suicide deprived him of
testamentary capacity
3. Dougherty v. Rubenstein, 914 A.2d 184 (Md. Ct.
Spec. App. 2007)
33
Ausness
T&E F ‘17

man suffers a stroke and develops dementia as a
result.
 Afterward, the man is forcibly placed in a care
home by his son and often expresses feelings of
betrayal and imprisonment.
 Eventually, the man accuses his son of stealing his
money and executes a will that disinherits his son
entirely.
 Although there is no evidence that the son has
stolen any money, the man’s irrational belief likely
resulted from the feelings of betrayal and
imprisonment rather than from an insane mind.
o His will is valid.
b. Undue Influence: Undue influence is a defect in capacity under which
the testator is (1) improperly influenced (2) by another person (3) at
the time of execution, such that the (4) testator’s intent is substituted
by the other person’s intent. BOP= POE
 Typically, the testator must also be susceptible to the undue
influence.
 Testator’s intent being substituted by the other person’s intent
requires that the other person exerted such influence that it
overcame the donor’s free will.
o ***Remember to access mental capacity because mental
status of the T is relevant in assessing the T’s susceptibility
to undue influence by another
Thus, the overcoming of the donor’s free will caused
the donor to make a donative transfer such that but for
the person’s exertion, the testator would not have
otherwise made the disposition. See Lipper v. Weslow,
369 S.W.2d 698 (Tex. Civ. App. 1963) (this should
have been a presumption case)
PRESUMPTION OF UNDUE INFLUENCE: (In re Will of
Moses, 227 So.2d 829 (Miss. 1969) A presumption of undue
o

Restatement
Confidential Relationship:
1. Fiduciary relationship: Atty;
power of attorney
2. Reliant relationship: special
trust and confidence—financial
adviser and customer;
doctor/patient
3. Dominant-subservient
relationship :donor was
subservient to the alleged
wrongdoer’s dominant
influence: caregiver/ ill/feeble
donor; adult child and ill/feeble
parent.
influence arises if
1. the testator and influencer are in a confidential
relationship;
2. suspicious circumstances are involved in the execution of
the will,
 p. 289
 such as mental infirmity of the testator,
 age,
 inexperience,
 dependence,
 physical weakness,
 extent to which alleged wrongdoer participated in
the preparation or the procurement of the will or
will substitute
 independent advise of an attorney/disinterested
advisor in preparing will or will substitute
 ****whether will was prepared in secrecy*****
 Will prepared in haste
34
Ausness
T&E F ‘17

3.
4.
5.
Whether donor’s attitude toward others had
changed by reason of his/her relationship with
alleged wrongdoer
 Whether there is a decided discrepancy between a
new and previous wills or .will substitute
 Whether there was a continuity of purpose running
through former wills or will substitutes indicating a
settled intent in the disposition of property
 Whether the disposition of the property is such that
a RP would regard it as unnatural, unjust, or
unfair—e.g., whether the disposition abruptly and
without apparent reason disinherited a faithful and
deserving member.
the will makes a unnatural disposition of property without
a reasonable basis..—e.g., if the beneficiary isn’t an object
of the bounty or if the testator cuts out all others
 Contestant must show the confidential relationship and
the suspicious circumstances, ¬ presumption kicks in
BOP: if presumption is applicable, ¬ fiduciary must prove
by clear and convincing evidence that there was no undue
influence
AUSNESS: SECRECY IS A BFD IN UNDUE
INFLUENCE CASES
 Example of Presumption of Undue Influence:
a. In re Will of Moses, 227 So.2d 829 (Miss.
b.
1969)
Hayes v. First Nat’l State Bank of N.J., 432
A.2d 890 (N.J. 1981).
o
o
o
o
An elderly woman executes a will, leaving the
majority of her substantial estate to her
daughter and disinheriting her grandchildren.
There is a confidential relationship between
the woman and her daughter, as the woman is
physically disabled and dependent upon her
daughter for companionship, care, housing,
and support.
The circumstances surrounding the will are
also suspicious, due to the daughter’s close
relationship with the attorney who drafted the
will and the sudden and unreasonable
disinheritance of the woman’s grandchildren.
The daughter must rebut the presumption of
undue influence with clear and convincing
evidence.
ii. Examples (generally):
1. In re Estate of Sharis, 990 N.E.2d 98 (Mass. App.
2013)
 The grandson that took over everything and
acted in secrecy—no independent counsel
2. Lipper v. Weslow, 369 S.W.2d 698 (Tex. Civ. App.
1963)
 An elderly woman executes a will with the
assistance of her son, who is a lawyer,
35
Ausness
T&E F ‘17
disinheriting several of her relatives in favor of her
son.
o Disinherited =grandchildren of another
decedent son
 Although the son may have a motive to exert
undue influence, the woman explains her reasons
for the disinheritance in her will and also makes
statements to various witnesses supporting these
reasons.
 Additionally, the woman is of sound mind and in
excellent physical health.
o  Her will is valid.
o There is confidential relationship,
unnatural disposition—but it is explained,
and some suspicious circumstances—but
she’s in good shape and seems to
understand and acknowledge why she
doesn’t want her grandchildren included.
 *** ACTUAL exertion must occur.
c. Duress: “A donative transfer is procured by duress if the wrongdoer
threatened to perform or did perform a wrongful act that coerced the
donor into making a donative transfer that the donor would not
otherwise have made.”
 Latham v. Father Divine, 85 N.E.2d 168 (N.Y. 1949): Where a
beneficiary of a presently executed will prevents the testator from
revoking that will and executing a new will in favor of another
beneficiary by fraud, duress or undue influence, and the testator
dies with the original will in effect, the property devised under that
will to the wrongful beneficiary is held in constructive trust for the
intended beneficiaries of the unexecuted will.
o Mary Sheldon Lyon died with a will leaving almost all of
her estate to Father Divine and three other parties
connected with the religious organization led by Father
Divine (Divine parties) (defendants).
 Lyon’s first cousins (Cousins) (plaintiffs) brought
an action in equity seeking to impose a
constructive trust on the portion of the estate
devised to the Divine parties.
o The Cousins alleged that Lyon’s will was procured by
undue influence.
o They further alleged that Lyon had expressed her desire to
revoke the will and hired an attorney who prepared a new
will but she was prevented from executing the new will or
revoking the old will because she was killed by a doctor
hired by Father Divine to conduct an unauthorized surgery
which Lyon did not survive.
o Under the new, but unexecuted will, the Cousins would
have received a substantial portion of the estate.
Fraud v. Undue Influence
Fraud in inducement v. undue
influence- fraud, the testator
retains her free agency and
freely makes a new estate plan,
but does so as a result of being
misled—cf. undue influence
where T makes a new estate
plan because of influence that
overcomes the T’s free will.
d. Fraud: Fraud occurs when a false misrepresentation is knowingly and
intentionally (or recklessly) made to influence the testator’s will,
thereby causing the testator to dispose of property in a way that he or
she would not have otherwise.
36
Ausness
T&E F ‘17

CAUSATION REQUIREMENT: A donative transfer is
invalid for fraud ONLY IF the donor would not have made the
transfer if the donor had known the true facts.
o In re Carson’s Estate, 194 P.5. (Cal 1920). (p. 316)
 Marriage ceremony with surviving spouse—T
believed that they were validly married
 After living together happily for a year, T
died, devising most of her estate “To my
husband . . .”
 Came to light that T had been “seduced by a
marital adventurer into marriage with him
with was no marriage in the eyes of the law
because of the fact, which he concealed from
her, that he had already at least one, if not
more, spouses, legally and illegal, who were
still living and undivorced:
 Issue: Was devise the fruit of a fraud?
 Only married for a year
o Cf. In re Estate of
Richmond, 701 N.W. 2d 897
(N.D. 2005)
 21 years of supposed
marriage
 Only mistake that the
marriage wasn’t valid
 It was unknown to
both souses
 Issue was whether it
was fraud in the
inducement
i. “fraud in the factum”: fraud in the execution where the testator
misunderstands the true nature of the document that is being
executed due to a person intentionally misrepresenting the
character or contents of the instrument signed by the testator—
thus the document does not in fact carry out the testators intent
 E.g., handing T a will that she thinks is devising X,
knowing that, instead, it is devising Y.
ii. Fraud in the inducement: in the inducement where the testator
does not realize that the facts inducing the execution are untrue
due to a misrepresentation that causes the testator to execute or
revoke a will, to refrain from executing or revoking a will, or
to include particular provisions in the wrongdoer’s favor.
e. Tortious Interference with an Expected Inheritance or Gift: (Tort)
 Requirements: π must prove
a. Existence of an expectancy of inheritance
b. Interference with expected inheritance \
involved tortious conduct
 Includes either undue influence, duress
or fraud
c. Tortious interference caused loss of his/her
expectancy
37
Ausness
T&E F ‘17
d. Damages
 Tort cannot be invoked if the challenge
is based on the T’s mental incapacity
o Example: Schilling v. Herrera, 952 Sp.2d (1231
(Fla. App. 2007)
o Following a diagnosis of renal failure, several
o
o
o
o
o
o
hospitalizations and a stay at the Clairidge
House for rehabilitation, Mignonne Helen
Schilling (Mignonne) received occasional care at
home from Maria Herrera (defendant) until her
condition worsened and she moved into an
apartment in Herrera’s garage.
Mignonne paid rent and compensated Herrera
for her services until Mignonne’s death on
August 6, 2004.
Prior to Herrera’s involvement, Mignonne’s will,
durable power of attorney and power of attorney
for health care made her brother, Edward
Schilling (Edward) (plaintiff), her sole heir and
sole decision maker regarding her health and
finances.
While Herrera was caring for Mignonne, Herrera
induced Mignonne to execute a new will and
power of attorney giving her entire estate and
full control of her finances to Herrera.
When Mignonne died, Herrera probated the will,
but waited until December 6, 2004 after the
creditor period expired and after she petitioned
for discharge of probate, to tell Edward that his
sister had died on August 8, 2004.
Edward, who lived in another state but visited
his sister and helped pay Herrera for caring for
Mignonne during her illness, had been
attempting to communicate with his sister
through Herrera, but Herrera would not return
his calls and did not communicate with him until
after the probate process was complete.
afterwardsued Herrera for intentional
interference with an expectancy of inheritance,
claiming that she engaged in a fraudulent
scheme to prevent him from challenging the will
Herrera induced his sister to execute.
iii.

REMEDIES where but for the undue influence, duress, or fraud of another a
decedent would have executed a new will, to honor the decedent’s frustrated
intent, courts may impose a constructive trust in favor of the decedent’s
intended beneficiary to prevent unjust enrichment.
 *** Remember, an unexecuted will cannot be probated
 Constructive Trust:
CONSTRUCTION:
 Latent Ambiguity: A latent ambiguity is an uncertainty that arises from extrinsic
evidence and does not appear on the face of the will. In re Estate of Gibbs, 111
N.W.2d 413 (Wis. 1961)
o Ambiguous as applied to the facts
o Two forms
38
Ausness
T&E F ‘17
1. Equivocation: A description for which two or more persons or
things fit exactly
2. No Exact Fit: A description for which no person or thing fits
exactly but two or more persons or things fit partially
 In re Estate of Ihl v. Oetting, 6832 SW.2d 865 (Mo.
App. 1984)
o T. devised his home to Mr. & Mrs. X, or the
survivor of them, presently residing at #17
Barbara Circle
o When will was executed, address was 17
Barbara Circle
o Divorced
o And man remarried, so not the same Mrs. X
o Latent ambiguity arising from the fact that none
of the beneficiaries “residing at #17 Barbara
Circle”
o Ex met the description of residing at the address
o New wife met the description of Mrs. X
o Ct. admitted extrinsic evidence that showed an
intent that the devise go to the earlier Mrs. X
because it was she who met the description at
the time of the will’s execution.
 Patent Ambiguity: A patent ambiguity is an uncertainty that is apparent on the face
of the will due to inconsistent or ambiguous language
 Personal Usage Exception: If extrinsic evidence shows that a testator habitually
used a term in an idiosyncratic manner, the evidence is admissible to show that the
testator used the term in accordance with his personal usage rather than its ordinary
meaning.
o Ambiguous on its face
i.
EXTRINSIC EVIDENCE: extrinsic evidence is generally admissible to:
Extrinsic Evidence
(1) prove whether the will is valid,
p. 355
(2) prove whether the testator intended to execute or revoke a will,
“Extrinsic evidence of the circumstances
under which a will is made . . . may be
(3) interpret an erroneous description,
considered by the court in ascertaining
(4) interpret an ambiguity, or
what the testator m§eant by the words
(5) correct a scrivener’s error.
used in the will.
 Note, however, that extrinsic evidence is not admissible to add a provision
IF in light of such extrinsiv evidence,
or otherwise alter or reform the will. [UPC §§ 2-502(c); 2-507)]
the provisions of the will are reasonably
o Examples:
susceptible of two or more meanings
1. Flemming v. Morrison, 72 N.W. 499 (Mass. 1904) (lack of
claimed to have been intended by the
testator, “an uncertainty arises upon the
face of a will” . . . and extrinsiv
evidence relevant to prove any of such
meanings is admissible.
IF, on the other hand, in light of such
extrinsiv evidence, the provisions of the
will are not reasonably susceptible of
two or more meanings, there is no
uncertaintiy arising UPON THE FACE
OF THE WILL . . . and any proffered
evidence attempting to show an
intention different from that expressed
by the words therein, giving them the
only meaning to which they are
reasonably susceptible, is inadmissible
testamentary intent)



A man executes an attested will, leaving all of his property
to a woman.
However, the man privately admits to one of the witnesses
that he does not intend for the will to be valid—he just
wants the woman to think he’s giving her property so she
will have sex with him.
Although the man has met all of the requirements for
execution, the testimony of the witness is admissible to
prove that the man’s will is not valid because T lacked the
testamentary intent for the document and dispositions
therein to be his will.
39
Ausness
T&E F ‘17
ii.
2. Arnheiter v. Arnheiter, 125 A.2d 914 (N.J. Super Ct. Ch.
Div. 1956) (erroneous description—which is a latent defect,
mostely)
 A woman executes a will, directing the executor of her
estate to sell her interest in property at “No. 304 Harrison
Avenue.”
 However, at the time of execution and her death, the
woman only owns interest in property at “No. 317
Harrison Avenue.”
 Although the probate court may not reform or alter the
will, extrinsic evidence of the woman’s property interest in
“No. 317 Harrison Avenue” is admissible to correct the
erroneous description.
 No reformation—but disregarded the erroneous
part of the mistaken descriptio
Mistaken or Ambiguous Language in Wills
1. Plain Meaning Rule: extrinsic evidence may be admitted to resolve
ambiguities, but the plain meaning of the words of a will cannot be
disturbed by evidence that the testator intended another meaning
 Exceptions:
1. Latent ambiguities
2. Patent ambiguities
3. Personal usage exception
 Examples:
ii. Mahony v. Grainger, 186 N.W. 86 (1933)
 “heirs at law living at the time of my decease . . .
. to be divided among them equally, share and
share alike.”
 When he asked who she wanted to leave the


residue of her estate to and who her closest
relatives were, she said she had twenty-five first
cousins who she wanted to share the residue
equally.
 Issue was that the only living heir was her
maternal aunt.
 Ct. language of “heirs at law” was not ambiguous
and  testimony re T’s intentions cannot be
introduced to prove the meaning of the language
used in the will
 Language was in common use with a set
meaning
LATENT DEFECTS:-- person or thing in terms equally
applicable to more than one when surrounding circumstances
are taken into account
PATENT DEFECTS:
o In re Estate of Cole, 621 N.W.2d 816 (Minn. App.
2001) (Patent defect & Scrivener Error)
 “To my friend, Veta Vininv, the sum of two
hundred thousand dollars (25,000)
2. No Reformation Rule: courts may not reform a will to correct a mistaken
term to reflect what the testator intended the will to say.
40
Ausness
T&E F ‘17
3. Ad Hoc Relieve for Mistaken Terms—see Arnheiter v. Arnheiter, 125
A.2d 914 (N.J. Super Ct. Ch. Div. 1956) (erroneous description)
4. Openly Reforming Wills for Mistake
 UPC § 2-805. Reformation to Correct Mistakes.: The court may
Extrinsic Evidence to Resolve an Ambiguity
v.
Extrinsic Evidence to Reform a Mistake
reform the terms of a governing instrument, even if unambiguous, to
conform the terms to the transferor’s intention if it is proved by clear and
convincing evidence what the transferor’s intention was and that the terms
of the governing instrument were affected by a mistake of fact or law,
whether in expression or inducement.

Requirements:
 Clear and convincing evidence of mistake
at time of execution
 T’s intent.
o “governing instrument”—means that it isn’t just wills but
An unambiguous document may be reformed, but to
trusts, POD, etc.
do so takes a showing of clear and convincing
 Example: In re Estate of Duke 352 P.3d 863 (Cal.
evidence that the donor’s intention differed from the
2015)
terms of the document.
 Devised property to “my beloved wife,
MRs. X” . . . & that “should my wife . . .
An ambiguous document is not entitled to a
and I die at the same moment, my estate is
presumption of correctness because the ambiguity
to be equally divided . . . “
establishes that the document does not adequately
 Issue was that will ~ provide for if the
express the donor’s intention.
husband survived the wife
Consequently, in a construction suit to resolve
o Reformation is ok where there is
ambiguities , , , , the donor’s intention need only be
clear and convincing evidence of
established by a POE
T’s intent
iii.
Death of Beneficiary Before Death of Testator
 Distribution of Property:
o Wills distribute property in the form of devises
 Devise= real property
 Bequest= tangible personal property
 Legacy- monetary property
 Key Words:
o Ademption
o Abatement
o Lapse
o Exoneration of Liens
 TYPES OF DEVISES:
a. General Devise: general devise is distributed from the general
assets of the testator’s estate
 e.g., “I give $10,000 to my son”.
b. Specific Devise: specific devise must be distributed from a
specified source in the testator’s estate
 E. g., give my record collection to my son
o Cf. with demonstrative devise, which is a gift of
money to be paid from a specific source.
c. Residuary Devise: residuary devise consists of the residuary
estate, or the property that remains in the testator’s estate after
any debts and administration costs have been paid and the other
devises have been distributed
A document that is unambiguous is entitled to a
strong (but irrebuttable) presumption of correctness,
that is, to a strong presumption that it accurately
expresses the donor’s intention.
41
Ausness
T&E F ‘17

e.g., “I give $10,000 to my son and all the rest,
remainder, and residue of my estate to my daughter”
o *** IMPORTANCE OF RESIDUARY
PROVISION: The failure to include a residuary
devise may complicate the administration of the
testator’s estate by requiring the application of
both testamentary and intestacy law (as any
leftover property not devised by the will would
then pass by intestacy)
d. Demonstrative Devise: hybrid: a general devise, yet payable
from a specific source
 If the specified source is insufficient, the devise is NOT
adeemed— but rather is satisfied out of other testator’s
property
1. Lapsed Devises: The doctrine of lapse applies when the intended
beneficiary of an individual or class gift (1) predeceases the testator and
either the (2A) will does not provide an alternative beneficiary or the
(2B) antilapse statute is not applicable
 Lapse causes the devise to fail entirely
a. Specific, ¬ devise falls into the residuary estate
b. general devise, ¬ devise falls into the residuary estate
c. No-Residue-of-a-Residuary Rule: residuary, ¬ heirs of t. take by
intestacy.
 In re Estate of Russell, 444 P.2d 353 (Cal. 1968)
d. Class Gifts: If a devise is to a class of persons and
e. Individual Gifts: UPC § 2-603(b)(1) (1990). Lapse, ¬ becomes
part of the residuary estate.
 If antilapse statute is applicable, then it allows surviving
heirs to take the devise as a substitute gift under a per
capita at each generation distribution instead.
o Alternative Beneficiary: T. can also name an
alternative beneficiary who inherits the
substitute gift instead of the surviving heirs.
 Ruotolo v. Tietjen, 890 A.2d 166
(Conn. App. Ct. 2006)
 This case also stands for the premise,
that, in some Jx, issue of stepchildren
can take under anti-lapse statute.
 Just say that it depends on the
jx, provide contingencies, and
assume it applies.
 A man executes a will containing a
residuary clause that devises one-half of
the residuary estate to his stepdaughter,
 Stepdaughter--subsequently predeceases
the man.
 Under the state’s antilapse statute, the
descendants of a predeceasing
beneficiary may take the lapsed devise
when the testator fails to provide for the
beneficiary’s death in the will.
42
Ausness
T&E F ‘17

Because the man’s will does not indicate
a clear intent to preclude application of
the state’s antilapse statute, the
stepdaughter’s share does not lapse and
is distributed to her heirs.
 If antilapse staute Jx, ¬ there
must be clear intention that
precludes the anti-lapse statute
from applying.
 Example #2:
 A man’s will devises “$10,000 to [his]
sister”
 “the rest, residue, and remainder of [his]
estate” to a charity.
 The sister predeceases the man and
leaves behind two surviving children.
 Under the state’s antilapse statute, each
child receives $5,000, and the charity
receives the rest of the man’s estate.
2. Void Devises: If a devises is already dead at the time the will is
executed, or the devisee is a dog or cat or some other ineligible taker, the
devise is void.
 The same rules that apply to a lapsed devise also apply to a
void devise.
 In re Estate of Russell, 444 P.2d 353 (Cal. 1968)
o Validly executed will written on a small card—
pertinent part of card reads: “ I leave everything I
own Real & Personal to Chester H. Quinn & Roxy
Russell . . . .”
 Issue: Latent ambiguity: when applied to
facts, it is discovered 1) that Roxy Russell=
a dog—ineligible taker, thus, if the devise is
to the dog, then the devise is void; (2) there
was more than one Roxy Russell—one at
execution of will; a different one at T’s
death.
 Extrinsic evidence allowed to show roxy
Russell is a dog--- the latent ambiguity
 No extrinsic evidence re T’s intent because
of the language of the residuary devise is
clear—two shares—one to chester and one
to Roxy—nothing showing that the
provision for the dog is merely precatory—
i.e. expressing a wish or intention of the
testator that the residuary devise should be
construed/equated with a disposition of the
whole to one of them whom may use
“whatever portion thereof as might be
necessary” on behalf of the other.”.
o NOTE: The no-residue-for-a-residuary rule wasn’t
discussed—here, argument could have been made
43
Ausness
T&E F ‘17
*** This is also not a
case where one is
disclaiming—
predeceased is not
equivocated if someone
disclaims—if
disclaiming, ¬
disclaimer by statute
governs
that, since the gift is void, and the rules re lapse
apply to void devises, that the residuary goes to
Chester as the other residuary beneficiary—thus,
keeping the π from getting the money anyway.
3. Antilapse Statute: Antilapse statutes enacted in some Jx allow the
predeceased beneficiary’s surviving heirs to inherit the gift instead of
allowing the gift to lapse.
 If an antilapse statute applies, ¬ the presumptions is that the gift
does not lapse unless the T. clearly indicates his/her intent to
preclude application of the antilapse statute.
 UPC § 2-605 Antilapse; Deceased Devisee; Class Gifts. (p.
357)
1. Devisee is a grandparent or lineal descendant
of a grandparent of the testator
2. Beneficiary predeceases T.
3. Issue of deceased devisee survives T by 120
hours
 (1)–(3), ¬ issue can take the place of the
deceased devisee
Cf. w/ intestacy—that is per capita at
 Same degree of kinship, ¬ take
each generation—here it is take by
equally
taking by representation
 Unequal degree, ¬ those of a more
remote degree take by
representation
o Statute is default—Antilapse statutes “will
applie unless T’s intention to exclude its
operation is shown with reasonable
certainty. Rutolo v. Tietjen
o Class Gifts: *** One who would have been
a devisee under a class gift is treated a
devisee for purposes of this section whether
or not his death occurred (1) before or (2)
after the execution of the will
 Restrictions: Words of Survivorship—Antilapse
statute is default where the statute exists.
 Example:
 Matter of Estate of Rehwinkel, 862 P.2d 639 (Wash.
Ct. App. 1993)
 A man executes his will, devising the residue of his
estate “to those of the following [beneficiaries] who are
living at the time of [his] death.”
 The requirement that property only be distributed to
surviving beneficiaries indicates a clear intent to
preclude application of the state’s antilapse statute.
 The shares of the man’s predeceases beneficiaries lapse
into the residuary estate.
 Example #2 (p. 358)
 Case 4:
 T devises her entire estate “one half to my son A and
one-half to my daughter B.”
44
Ausness
T&E F ‘17

B predeceases T, leaving Child C.
o At T’s death, what happens to B’s share?
 C/L: Lapse (=no residue of a residue),
so , being a residuary devise, the
property would pass by intestacy, one
half to A and one half to C.
 Thus, A would take ¾ of estate
and C ¼-- UPC intestacy—per
capita at each generation
 If the no-residue-of-a-residue does NOT
apply, ¬ B would take A’s part.
 Thus, B would have the entire
estate—C has nothing
 Anti-lapse statute applicable= B’s Share
would pass to C, leaving A with ½ of
T’s estate and C with 1/2/ of the estate
 Antilapse requirements are
met—C is the grandchild of T.
4. Class Gifts
a. What is a class gift? A class gift arises if the T was group
minded—i.e. if the T uses a class label in describing the
beneficiaries.
 Ascertaining Whether a Class Exists:
o Dawson v. Yucus, 239 N.E.2d 305 (Ill. App.Ct.
1968)
o If the testator does not clarify whether a devise is a
class gift, the probate court must determine the
testator’s intent regarding a group of beneficiaries
based on several factors, specifically whether:
(1) the testator describes individuals or
an entire class,
(2) the beneficiaries share common
characteristics and have the same
relation to each other or the testator,
(3) the amount of the share that each
beneficiary receives is certain at the
time of execution (or whether it
cannot be ascertained until T’s
death), and . . .
(4) the general testamentary scheme
indicates that the testator intended
to create a class of beneficiaries.
 issue of whether the gift to predeceased
named beneficiary of devise had lapsed,
 Would have caused it to it to fall
into the residuary under lapse
 Whether it could be construed as a class gift,
 in which case it would pass to
brother as the surviving class
member
45
Ausness
T&E F ‘17


Facts:
A woman executes a will, dividing her
interest in farmland between her two
nephews.
 There is no indication in the will that the
woman intends to create a class gift
 the will names her two nephews
individually and
 makes each nephew’s share certain
at the time of execution.
 The general testamentary scheme also
indicates that the woman intends for her
other beneficiaries to receive the residue of
the estate, such that a predeceasing
nephew’s share should not be distributed to
the surviving nephew.
 There is no class gift.
 A gift to NAMED beneficiaries who form a NATURAL class
may be construed as a class label if the court divides that the
T would have wanted the survivors to divide the share of a
predeceasing beneficiary rather than for it to lapse.
o Restatement (Third) of Property: Wills and Other
b. Application of Antilapse Statute to Class Gifts
  applies—p. 373 Lapsed Devises: A summary
 Example: Case 10 (p/372)
o T, a widow, dies leaving a will devising BA “to
my sisters,” devising her residuary estate to her
stepson, S
o When T executed the will, T had two sisters
living, A and B
 Thus, C died before the will was
executed
 C left a child, F, who survived T.
o A died during T’s lifetime, leaving two children,
D&E
o T is survived by B,D, E, F, and S
 Who takes BA?
o Antilapse statute applies to devises of sisters, ¬
B takes 1/3 share; D & E split a 1/3 share—thus
taking 1/6; and F takes a 1/3 share
 Twist: If the x ~ allow F to take because
C was dead when the will was executed,
¬ BA goes ½ to B; ½ divided by D &
E—so, 1/4 , and F gets nothing
o NO applicable antilapse statute—B, as sole
surviving member of the class would take BA
46
A’s gift has lapsed. Does
an antilapse statute
apply?
Ausness
T&E F ‘17
No
Distribute to A’s
descendants
Is A’s gift part of a class
gift?
No
Reallocate among other
class members
Is the lapsed devise
specific, general, or
residuary?
Residuary
Devise falls into the
residue
Does the state follow a
no-reside-of-a-residue
rule?
No
Distribute to heirs by
intestacy
iv.
Distribute to other
residuary devisees or, if
non, to heirs by intestacy
Changes in property After Execution of Will
1. ADEMPTION: UPC § 2-606. Nonademption of Specific Devises;
Unpaid Proceeds of Sale, Condemnation, or Insurance; Sale by
Conservator or Agent. The doctrine of ademption may apply to revoke
a devise that is satisfied or extinct at the time of the testator’s death.
 Generally, a beneficiary cannot receive addeemed
property
o Identity theory of Ademption: if a specifically
devised item is not in T’s estate, the gift is
extinguished
o Intent Theory (UPC): If the specifically devised
item is not in the T’s estate, the beneficiary may
nonetheless be entitled to the replacement or
cash value of the original item, if the beneficiary
can show that this is what the T would have
wanted.
a. Ademption by Extinction: Ademption by extinction applies
when the testator makes a specific devise that is no longer in the
estate at the time of his death.
 This doctrine assumes that the testator intended to
revoke the devise to the beneficiary by “extinguishing”
the property from the estate
o REQUIREMENTS: UPC § 2-606(a) (1990). the
beneficiary may receive an alternate devise, as
47
Ausness
T&E F ‘17


long as the testator did not intend for ademption
by extinction . . .
 A beneficiary may receive:
(5) any balance owed by the purchaser
after the sale of the property,
(6) any proceeds unpaid on fire or
casualty insurance,
(7) any replacement real or tangible
personal property owned by the
testator, or
(8) a monetary devise equal to the value
of the property
 REPLACEMENT PROPERTY ISSUE: UPC § 2606(a)(5):
o If T executes a will bequeathing “my Ford
car” to A and later sells the Ford and buys a
Roll-s Royce, is A entitled to the Rolls?
 What if T bought two cars?’
 Bought a motorcycle instead?
Examples:
In re Estate of Anton, 731 N.W.2d 19 (Iowa 2007):
o A woman executes a will, dividing her interest in a
duplex between her stepdaughter and son.
o Eventually, the stepdaughter begins to manage the
woman’s financial affairs and is forced to sell all
of the woman’s assets, including the duplex, to
pay for a nursing home.
o At the time of the sale, the woman is suffering
from dementia and is not aware that the duplex has
been sold.
o Because the woman did not intend for ademption,
the stepdaughter and son are entitled to receive the
proceeds from the sale of the duplex.
o *** Note, here T. had NO idea that the property
was being sold,  she couldn’t have given consent
and did not intend for the property to be sold—and
thus, adeemed by extinction.
 Compare—example where T. did intend
for ademption by extinction to occur
 A woman executes a will, leaving
“the proceeds from the sale of
[her] house on 123 Main Street”
to her nephew.
 Before her death, the woman sells
the house on 123 Main Street and
donates the proceeds to a charity.
 Because the woman deliberately
gave away the proceeds to a
recipient who was not the
beneficiary, there is evidence that
48
Ausness
T&E F ‘17
she intended for ademption by
extinction.
 The nephew does not receive the
house on 123 Main Street or any
alternate devise.
b. Ademption by Satisfaction: Ademption by satisfaction applies when
the testator makes an inter vivos gift to the intended beneficiary named
in the will.
 This doctrine assumes that the testator intended to
revoke the devise to the beneficiary by “satisfying” the
testamentary devise with the inter vivos gift . . .
 Rebuttable presumption
o REQUIREMENTS FOR ADEMPTION BY
SATISFACTION: UPC § 2-609 (1990) An the
inter vivos gift is treated as a satisfaction of the
testator’s devise only if:
(1) the will provides for deduction of
the inter vivos gift from the value of
the devise,
(2) the testator declares the satisfaction
or deduction in a contemporaneous
writing, OR
(3) the beneficiary acknowledges the
satisfaction or deduction in any
writing.
 , so that S will take only 20k at T’s death.
b. Partial Ademption: If only a portion of the
property devised to the beneficiary is adeemed
(whether by satisfaction or extinction), the
remainder of the property will pass to the
beneficiary as intended.
 Example: man executes a will, leaving
his “red convertible” to his niece
 A few years later, the man sells
the red convertible and
purchases a blue sedan. Shortly
before his death, the man sells
the blue sedan and purchases a
green minivan that he owns at
the time of his death.
 Because the man has replaced
the red convertible with tangible
personal property, the niece
receives the green minivan
 EXAMPLE 2
 T’s will devises 50k to her son.
S, and her residuary estate to her
daughter, D. After executing the
will, T gives S 30k. There is a
presumption that the gift was in
49
Ausness
T&E F ‘17
iv.
v.
vi.
vii.
PARTIAL satisfaction of the
legacy
Stock Splits and the Problem of Increase: change in form v. change in
substance
 Stock Splits: Same proportional ownership—when a stock split occurs
o Rstmt: Subject to a showing fof contrary intent, a devisee of stock
is entitled to additional shares received by the testator as a result of
the stock split.
 Stock Dividends: UPC: stock dividends are treated the same as stock splits:
the beneficiary gets them along with other shares.
Satisfaction of General Pecuniary Bequests: See Ademption by Satisfaction
above
Exoneration of Liens:
a. Common Law: Under the common law doctrine of exoneration of
liens, any liens or other debts on a devise are paid by the estate before
distribution to the beneficiary.
 If a will makes a specific disposition of real or personal
property that is subject to a mortgage to secure a debt on
which the testator is personally liable, then it is presumed
that the T wanted the debt, like other debts, to be paid out of
the residuary estate.
b. UPC: Abolished the C/L doctrine-- the devise passes subject to any
liens or other debts that were not paid by the testator before death.
 Requirements of T wants exoneration of liens—testator must
explicitly provide for the exoneration of liens
o a general directive to pay all debts is typically
considered insufficient for exoneration.
Abatement: The doctrine of abatement applies when the property devised by a
will, in addition to the costs of administration and other debts, exceeds the total
assets available in the testator’s estate.
 Default Sequencing of Abatement:
1. Intestate Property
2. Residuary Devises
3. General Devises
4. Specific Devises/Demonstrative – reduced PRO RATA
 Example:
 A man executes a will containing the following
provision: “I hereby devise $80,000 to my son, the
proceeds from the sale of my house to my
daughter, and the rest, remainder, and residue of
my estate to my wife.”
 After the man dies, his estate contains $100,000 to
be distributed to his beneficiaries, $75,000 of
which is from the sale of his house.
o The residuary devise to his wife abates
first,
o the general devise to his son abates
second, and
o the specific devise to his daughter abates
last.
50
Ausness
T&E F ‘17




The daughter receives $75,000,
the
son receives $25,000, and
the wife receives nothing.

LIMITS ON FREEDOM OF DISPOSITION: PROTECTION OF THE SPOUSE
AND CHILDREN
a. Protection of the Surviving Spouse
 Definitions:
o
o
o
o

Elective/Forced Share (statutory share/statutory forced share/Right of
Election): The percentage of a deceased spouse's estate, set by statute, that a
surviving spouse (or sometimes a child) may choose to receive instead of
taking under a will or in the event of being unjustifiably disinherited.
Right of Election: (Widow’s election): surviving spouse's statutory right to
choose either the gifts given by the deceased spouse in the will or a forced
share or a share of the estate as defined in the probate statute.
Pretermitted-Heir Statute: A state law that, under certain circumstances,
grants an omitted heir the right to inherit a share of the testator's estate,

usu. by treating the heir as though the testator had died intestate.
 Most states have a pretermitted-heir statute, under which an
omitted child or spouse receives the same share of the estate as if
the testator had died intestate, unless the omission was intentional.
 The majority rule, and that found in the Uniform Probate Code, is
that only afterborn children — that is, children born after the
execution of a will — receive protection as pretermitted heirs.
 Under that circumstance, an inference arises that their
omission was inadvertent rather than purposeful.
Pretermitted Spouse/ Pretermitted Child: A child or spouse who has been
omitted from a will, as when a testator makes a will naming his or her two
children and then, sometime later, has two more children who are not
mentioned in the will
 Key here is that the child was not in existence before the execution
of a will or codicil republishing the original will
i. The Elective Share of a Separate Property Surviving Spouse:
 Spouses own separately all earnings and acquisitions from
earnings during the marriage, unless they agree to a joint
form of ownership
 So, default is that property is separate.
 Issue that arises: Because whatever a spouse earns is his or
hers, the question of what protection against disinheritance
should be given to the other spouse arises. – majority of Jx=
elective share/forced share of the decedent spouse’s
property.
 APPLIES TO (1) testamentary dispositions (2) intestate
succession, (3) nonprobate transfers
EXCEPTION TO GENERAL RULE: PRENUPTIAL AGREEMENT:
o Reece v. Elliot, 208 S.W.3d 419 (Tenn. App. 2006)
 An antenuptial agreement with FULL and ADEQUATE
DISCLOSURE will be enforced even where a party failed
only to disclose the value of a substantial asset as long as the
contesting party was NOT misled and had an opportunity to
discover the value of the asset.
 H&W executed an antenuptial agreement (Agreement).
51
Ausness
T&E F ‘17

The Agreement stated that they (1) both had separate
interests in property that they agreed to keep separate during
their marriage and (2) that they waived their right to elect
against each other’s wills so that their respective estates
could pass to their children from previous marriages.
 The Agreement confirmed
o that they both had sought the advice of
independent counsel,
o understood the meaning of the agreement
and that there had been full disclosure of
their assets.
 Attached to the Agreement were exhibits listing their
respective assets.
o H’s assets included, inter alia, a residence
and other real estate, a promissory note to
Routh Packing Company for $357,000, and
1687 shares of stock in Routh Packing
Company,
 however, the current value of the
shares was not stated.
o H’s widow’s assets did not include the value
of all listed assets.
o After H died intestate on July 5, 2003, his
widow brought a declaratory judgment
action against Linda Elliot and Diane
Dempsey (defendants), co-executrixes of
Eugene’s estate, seeking to rescind the
Agreement because Eugene failed to fully
disclose his assets by not including the value
of the shares in Routh Packing Company
stock.
o W stated that she did not ask her attorney to
investigate the value of the stock even
though she met with him and disclosed the
agreement
o She further testified that she understood she
would have no right to the listed assets, that
she had not asked Eugene about the value of
the stock and that she did not think the value
of the stock was important at the time
because under the terms of the Agreement,
she would not have an interest in the stock.
o She also testified that Eugene was
forthcoming about his assets
 Elective Share CALCULATIONS: typically,
o 1/3 of all of decedent’s probate property
o plus certain non-probate transfers.
 Subsequently Deceased Surviving Spouse. UPC §2212: Right of election may be exercised by the
52
Ausness
T&E F ‘17


surviving spouse or a representative of the surviving
spouse only during the surviving spouse’s life.
 Incompetent Surviving Spouse. UPC § 2-212 (1990
rev. 2008) provides that, if a representative claims
the elective share for an incompetent surviving
spouse, the portion of the elective share that exceeds
what the decedent spouse provided for the survivor
must be placed in a custodial trust for the benefit of
the surviving spouse.
Two Theories for WHY Elective/Forced Share Exists:
i. Partnership Theory of Marriage:
o Points toward giving spouse ½ of the
decedent’s property acquired during the
marriage
 So, ½
 MARITAL PROPERTY
 Cf. mirrors a community property
state
ii. Support Obligation
o Tends to justify a smaller percentage, but it
would apply to all of the decedent’s property
 <%
 ALL PROPERTY, not just marital
NON-PROBATE PROPERTY:
 Inter vivos trust
o Probate estate—and also—intestate
 Sullivan v. Burkin, 460 N.E.2d 572
(1984): where the decedent spouse
created an inter vivos trust during
the marriage and only the decedent
spouse had the general power of
appointment under the trust, the
trust assets shall be treated as part
of the probate estate.





likely only applies to trusts
o (1) created during
the marriage and
o (2) by the decedent
spouse.
Ernest G. Sullivan died with a will
that specifically disinherited his
wife, Mary A. Sullivan (plaintiff).
Left the residue of his estate to the
trustee of a revocable trust that he
created during his lifetime.
Ernest was the sole trustee, and had
the right to revoke the trust as well
as receive the net income and invade
the principal during his lifetime.
Upon Ernest’s death, the trust
principal and income were to be
53
Ausness
T&E F ‘17
paid to George F. Cronin, Sr. and
Harold J. Cronin (defendants).
 The trust was executed before a
notary public but was not witnessed
as required for execution of a will.
Revocable Trusts v. POD ks
 Mary elected to take her spousal
**** TYPE OF CONTROL EXERTED***
share of Ernest’s probate estate and
brought an action seeking to include
Revocable= decedent spouse could control (1) as a trustee (2) pwr of
the assets of Ernest’s revocable trust
appointment—etc.—in a manner where you can receive/decide who
in the probate estate from which she
receives income and when the principal can be invaded
would take her spousal share.
o Spouse retained general power of
POD= contracts name beneficiaries—that’s about the extent of
appointment over the inter vivos trust
control
 General Power of Appointment at 3P Trusts: The
trust property is NOT subject to a plaintiff’s claim of
an elective share for the simple reason that the trust
was created by a third party . . . and not by the
decedent spouse.
 TESTS ARTICULATED BY CTS—as to whether trust
falls within probate estate
 ***REVOCABLE TRUSTS are likely to be
included in determining the surviving spouse’s
elective share
Tests replaced by concept of
i.
Illusory Transfer Test: valid trust, but it counts
AUGMENTED ESTATE—
Statute extending applicability of
the elective share to nonprobate
transfers
as part of the decedent’s assets subject to the
elective share, so the trustee may have to contribute
some of the trust property to make up the elective
share
ii.
Issue: whether a court should include in
the elective share a type of nonprobate
transfer not specifically mentioned in the
statute
In re Estate of Myers (p535):
Issue: POD assets not included in statute.
Karen Myers passed away
At the time of her death, Karen had a checking account, certificate of
deposit, and an annuity (POD assets).
The POD assets were payable upon her death to her daughters.
Karen’s will was submitted to probate. \
After, Karen’s husband filed for an elective share of Karen’s estate.
He thereafter assigned his right to an elective share in order to satisfy
a judgment against him.
On May 6, 2011, the assignees requested a determination as to
whether the POD assets should be included in Howard’s elective share.
elective share
Bc statute specifies which types of assets are included in a surviving
spouse’s elective share, and the POD (annuity) weren’t included, ¬ it’s
not part of estate
 Legislatures job, and they chose to actively not include
annuities, within the specifically named categories
iii.
iv.
Intent-To-Defraud Test: if a decedent spouse
intended to defraud his surviving spouse of her
elective share, some courts look for subjective
intent—others objective—
a. objective: the control retained by the
transferor, the amount of time
between the transfer and death, and
the degree to which the surviving
spouse is left without an interest in the
decedent’s property or other means of
support
Present Donative Intent Test: to transfer an
interest in the property, focusing not on what
the transferor retained, but on whether the
transferor intended to make a present gift.
Augmented Estate:
 Example: H&W have been married for
18 years, under UPC §§2-202 and 2-203,

100 % of the augmented estate is marital
property subject to the surviving spouses
elective share of 50%.
H’s augmented estate consists of:
54
Ausness
T&E F ‘17
o
100 k probate estate, devised to
A
o 150k nonprobate transfers to
other beneficiaries
o 25 k life insurance payable to W
 (disagreement whether
this should be
considered as
 nonprobate property
subject to the elective
share)
o 50k H’s half interest in joint
tenancy held with W
o 75 k W’s property
o 50 k W’s half interest in the
joint tenancy
o 450 Total augmented Estate
 W has an elective share
of 50% of the whole—
225 k.
 BC W already owns 75
k in her own name 150k
 Also credited against
elective share = 25 k
life insurance
 50 k for H’s half of
joint tenancy, which W
takes by operation of
law
 -50 k for her own half
of property held in joint
tenancy
 , W’s elective share
payable to W out of H’s
probate estate and
nonprobate transfers is
25 k total.
ii. Community Property: spouses retain separate ownership of property
brought to the marriage, but they own all earnings and acquisitions from
earnings during the marriage in equal, undivided shares.
 No elective share b/c each spouse owns one-half of the
earnings of the other spouse during the marriage.
 Ownership of property brought into the marriage DURING




the marriage belongs to both the H & W in undivided one-halfinterests-- equal shares
Death of one spouse dissolves the community
Diseased spouse owns and ha testamentary power over HIS half of
the community
Surviving spouse already owns her half
Separate property: all property
 acquired before marriage and
55
Ausness
T&E F ‘17


 acquired during marriage by gift or inheritance
*** INCOME= from separate property—depends on the Jx—
mostly still separate
COMINGLED PROPERTY—prop. acquired from both separate
and community must be TRACED to retain separateness
 BOP on person who claims property is separate
iii. Migrating Couples & Multistate Property Holdings (p.558)
 Traditional conflict of laws rules used to determine which
state law governs marital property:
i. The law of the situs controls probs re land
ii. Law of the marital domicile at the time that the
personal property is acquired controls
iii. Law of marital domicile at death controls
survivor’s rights
iv. Miscellaneous Additional Rights
1. Social Security
2. Pension & Retirement Plans
3. Homestead
4. Personal Property Set-Aside
5. Family Allowance
6. Dower & Curtsey
a. Dower
b. Curtsey
v. Intentional Omission of a Child: no statutory protection for intentionally
omitted child
vi. Protection Against Unintentional Omission
1. Spouse:
 Essentially, pretermitted spouse, ¬ that spouse receives an
intestate share and otherwise leaves the premarital will
intact.
 Presumption can be overcome by evidence that testator
deliberately omitted the surviving spouse and did not
mistakenly fail to update the premarital will.
o UPC § 2-301. Entitlement of Spouse; Premarital
Will.
(a) If T’s surviving spouse married T after T
executed his will, ¬ surviving spouse is entitled
to receive an intestate share . . . . of estate that
neither is (1) devised to a child of the T who was
born before the T married the surviving spouse
and (2) nor is devised to a descendant of such a
child [ or passes under § 2-603 2-604] to such a
child . . . UNLESS
(1) It appears from the will or other
evidence that the will was made in
contemplation of the T’s marriage
to the surviving spouse,
(2) The will expresses the intention
that it is to be effective
notwithstanding any subsequent
marriage
56
Ausness
T&E F ‘17
(3) T provided for the spouse by
Abatement provision

transfer OUTSIDE the will and the
INTENT that the transfer be in lieu
of a testamentary provision is shown
by the testator’s statements or is
reasonably inferred from the amount
of the transfer or other evidence
(b) . . . in satisfying the share provided by this
section . . . . devises made by the will to the T’s
surviving spouse, are applied first . . . and other
devises, other than the devise to a child of the T
who was born before the T married the surviving
spouse and who is not a child of the surviving
spouse or a devise or substitute gift under . . . . .
Example: In re Estate of Prestie, 138 P.3d 520 (2006): when
a will does not provide for a surviving spouse who married
the testator after the will was executed is: (1) a marriage
contract providing for the spouse, (2) a provision in the will
that provides for the surviving spouse, or (3) a provision in
the will that indicates the testator’s intention to exclude the
surviving spouse.
o Although Maria (plaintiff) and W.R. Prestie were
first married in 1987 and divorced two years later,
they remained friendly and eventually both moved to
Las Vegas, living separately at first and later together
when W.R.’s sight was declining and Maria moved in
to help care for him in 2001.
o Shortly after Maria moved in, W.R. amended the
W.R. Prestie Living Trust (the Trust), which he
executed in 1994 after his divorce from Maria and
made his son, Scott Prestie (defendant), the trustee
and beneficiary of the Trust.
o The amendment granted Maria a life estate in the
condominium where they lived together.
o When W.R. had executed the original Trust in 1994,
he also executed a pour-over will that devised his
entire estate to the Trust.
o W.R. had not changed his will when he died nine
months after remarrying Maria.
o Maria sought to take half of W.R.’s estate in intestacy
under Nev. Rev. Stat. 133.110.
o Pursuant to Nev. Rev. Stat. 133.110, if a spouse who
marries the testator after the making of his will
survives the testator and the will neither provides for
the surviving spouse nor indicates an intention to
exclude the surviving spouse, and no marriage
contract was entered into, the will is revoked as to
the surviving spouse.
o Nev. Rev. Stat. 133.110 stated further that “no other
evidence to rebut the presumption of revocation
shall be received.”
o Scott opposed Maria’s claim, asserting that Nev. Rev.
Is an amendment to the trust sufficient for a
Stat. 133.110 did not apply because W.R. had
pretermitted spouse under a will?
provided for Maria by amending the Trust.
57
Ausness
T&E F ‘17



Maria married W.R. for the second time
after he executed his will and inter
vivos trust.
W.R.’s pour over will makes no provision for
Maria and
the amendment to the inter vivos trust does
not constitute a provision for Maria in the
will.
2. Unintentional Disinheritance of a Child
 UPC § 2-302. Omitted Children.
(a) If a T. fails to provide in his will for any
of his children born or adoted AFTER
Requirements:
the execution of the will, the omitted
after-born child receives a share . . . .
(1) Child is born or adopted after the T executes the will
(1) If t ~ have living children
receives . . .
when will was executed, an
(2) Intestate share of estate if . . .
omitted after-born/adopted
a. T had no children at the time of the will’s
child receives a share in the
execution, unless the will devises substantially all
estate equal in value to that
of the estate to the surviving parent of the omitted
which the child would have
child
received had the testator
b. T had children at the time of execution, then the
died intestate, unless the
omitted child is entitled to an equal share of the
will devised all or
combined devises made to the T’s other children,
substantially all of the estate
abating their devises ratably as necessary
to the other parent of the
(3) Nothing if . .
omitted child AND that
a. Intentionally omitted child
parent survive T and is
b. T provided for the child with a nontestamentary
entitled to take under the
transfer and intended for the transfer to be in lieu
will
of a testamentary devise
(2)
T had one or more children
(4) Children who T was unaware of or who were mistakenly
living when he executed the
believed by T to be dead may also claim a share under this
will, and the will devised
doctrine
property or an interest in
property to one or more of
the then-living children, and
Gray v. Gray, 947 So.2d 1045 (Ala. 2006)
omitted after-born is
An omitted child born after execution of the decedent’s will is not entitled to an
entitled do share as follows .
intestate share under the omitted child statute if the decedent parent omitted all
....
of his children from the will and left the entire estate to the omitted child’s
other parent.
(A) Portion of the T’s estate in
When John Merrill Gray II (John) married Mary Rose Gray, he had two
which the omitted after born
children from a prior marriage, Robert B. Gray and Monica L. Muncher.
is entitled to share is limited
Before John and Mary’s son, John Merrill Gray III (Jack), was born, John
to devises made to then T’s
executed a will in which he devised his entire estate to Mary.
then living children under the
Subsequently, John and Mary divorced and executed a property settlement in
which John agreed to place one-half of all assets he inherited from his mother into
will
a trust for Jack.
(B) Omitted after born is entitled
John died without changing his will and the bequest of his estate to Mary was
to receive the share of the T’s
revoked by statute because they were divorced.
estate as in A that the child
When the executor of John’s estate, William Terry Gray (defendant), sought to
probate the will, Jack petitioned to receive a share of the estate as an omitted child
would have received had the
under Ala. Code §43-8-91 (omitted child statute).
Subsection (a) of this statute allowed an omitted child to receive their intestate
share of the estate unless one of the following three exceptions applied:
(1) if exclusion from the will appeared to be intentional,
(2) if the testator had one or more children living when the will was
executed and he devised the entire estate to the other parent of the
omitted child and omitted all of the children, or
(3) if a transfer to the child made outside the will is shown to have been
58
Ausness
T&E F ‘17

T included all omitted after
born children with the
children to whom devises are
made under the will and had
given an equal share of the
estate to each child.
(C) To the extent feasible, the
interest granted an omitted
after-born must be of the
same character, whether
equitable or legal, present or
future, as devised to the T’s
then-living children under the
will
(D) In satisfying a share provided
by this paragraph, devises ot
the T’s children who were
living when will was executed
abate ratably--- in abating the
devises of the the-living
children, ct. shall preserve to
the maximum extent possible
the character of the
testamentary plan adopted by
the T.
(b) Neither (a)(1) or (a)(2) applies IF
(1) Appears omission was intentional
(2) T provided for the omitted afterborn by transfer outside the will and
the intent that the transfer be in lieu
of a testamentary provision is shown
...
(c) If fails to provide solely because T
believes child to be dead, child is
entitled to share in the estate as if the
child were an omitted after-born
(d) .. . in satisfying (a)(1), devises made by
the will abate
Scope of the pretermitted child statute—Do the assets of a
revocable inter vivos trust subject to the pretermitted heir
statute?
o In re Estate of Jackson, 194 P.3d 1269 (Okla.
2008).: pretermitted heir statute does not apply to
revocable inter vivos trusts because, unlike the
statute applicable to a surviving spouse, this statute
does not limit the T’s power to dispose of his or her
property.
 pretermitted heir statute provides an
intestate share for a child of a testator
omitted from te testator’s will “unless it
appears that such omission was intentional.
59
Ausness
T&E F ‘17
b. Right of Support: A surviving spouse or child may be entitled to support in the
form of a homestead allowance, family allowance, or personal property
exemption, regardless of the terms of the testator’s will.
i. Homestead Allowance: UPC § 2-402
1. Spouse: The surviving spouse may claim a homestead allowance
of $22,500 from the testator’s estate.
2. Minor or Dependent Child: If there is no surviving spouse, then
each minor or dependent child is entitled to an equal share of the
value of $22,500.
 Generally, the homestead allowance is exempt from and has priority
over all claims against the estate.
 The homestead allowance also passes in addition to any other share of
the estate that the surviving spouse or child may receive.
o Example:
 A man executes a will, devising $10,000 to a charity
and the residuary estate to his only child, who is a nondependent adult.
 At the time of the man’s death, he has $30,500 in his
estate.
 His surviving wife may claim a homestead allowance
of $22,500 before the man’s devises are distributed to
his beneficiaries.
 The charity receives $8,000, while the child receives
nothing.
o Example 2:
o A woman executes a will, devising $10,000 to a charity and
$20,000 each to her two sons.
o At the time of the woman’s death, she has $100,500 in her
estate and is survived by her two sons, who are minors.
o Both sons may share a homestead allowance of $22,500 before
the woman’s devises are distributed to her beneficiaries, which
means that each son is entitled to a $11,250 share of the
homestead allowance.
o The charity receives $10,000,
o The two sons each receive $20,000 in addition to their shares
of the homestead allowance.
ii. Family Allowance: The surviving spouse and minor or dependent
children of the testator may claim a reasonable family allowance from
the estate during the period of estate administration after the testator’s
death, but for no longer than one year.
 UPC § 2-404: maximum 2,250 per month
 Family allowance is payable to the surviving spouse or, if
there is no surviving spouse, to the T’s children
o Generally, the family allowance is exempt from and
has priority over all claims against the estate.
 Caveat: ABATES to the homestead
allowance
o Family allowance also passes in addition to any
other share of the estate that the surviving spouse or
children may receive
60
Ausness
T&E F ‘17

III.
EXAMPLE #1: A man executes a will,
devising $10,000 to his wife and $10,000
each to their three dependent children.
 After the man’s death, the wife may claim a
reasonable family allowance of no greater
than $2,250 per month for herself and their
children until the administration of the estate
is complete.
 This amount is in addition to the homestead
allowance of $22,500 and the devises
totaling $40,000 made by the will that the
wife and children already receive.
TRUSTS: A trust is created by transferring property in such a manner that title is split into
legal and equitable interests and fiduciary duties are imposed on the holder of the legal title
to manage that property for the benefit of the holder of equitable title.
 General method of creating a trust
1. Divide title of property into legal and equitable interests
2. Impose fiduciary duties on holder of legal title to deal with the property
for the benefit of the holder of equitable title
b. Definitions:
i. Trust: The right, enforceable solely in equity, to the beneficial enjoyment of
property to which another person holds the legal title; a property interest held by
one person (the trustee) at the request of another (the settlor) for the benefit of a
third party (the beneficiary).
 For a trust to be valid, it must involve specific property, reflect the
settlor's intent, and be created for a lawful purpose.
 The two primary types of trusts are private
trusts and charitable trusts (see below).
 A fiduciary relationship regarding property and charging the person
with title to the property with equitable duties to deal with it for
another's benefit;
 the confidence placed in a trustee, together with the trustee's
obligations toward the property and the beneficiary.
 A trust arises as a result of a manifestation of an intention to create it.
ii. Accumulation Trust: A trust in which the trustee must accumulate income and
gains from sales of trust assets for ultimate disposition with the principal when
the trust terminates. • Many states restrict the time over which accumulations
may be made or the amount that may be accumulated.
iii. Active Trust: A trust in which the trustee has some affirmative duty of
management or administration besides the obligation to transfer the property to
the beneficiary. — Also termed express active trust; special trust; operative trust.
iv. Annuity Trust: A trust from which the trustee must pay a sum certain annually to
one or more beneficiaries for their respective lives or for a term of years, and
must then either transfer the remainder to or for the use of a qualified charity or
retain the remainder for such a use. • The sum certain must not be less than 5% of
the initial fair market value of the property transferred to the trust by the donor. A
qualified annuity trust must comply with the requirements of IRC (26 USCA) §
664.
v. Asset-Protection Trust: 1. A trust designed specifically to insulate assets from the
settlor's creditors. • When the trust is created using the law of a state, it is also
termed a domestic asset-protection trust. It may also be referred to by the name
61
Ausness
T&E F ‘17
vi.
vii.
viii.
ix.
of the specific state, e.g., Alaska trust, Delaware trust, or Nevada trust. If it is
created under foreign law, even though the assets are within the United States, it
is also termed offshore asset-protection trust. 2. See self-settled trust. — Abbr.
APT.
Charitable Trust: trust created to benefit a specific charity, specific charities, or
the general public rather than a private individual or entity. • Charitable trusts are
often eligible for favorable tax treatment. If the trust's terms do not specify a
charity or a particular charitable purpose, a court may select a charity.
Claflin Trust (see indestructible trust)
Constructive Trust: An equitable remedy by which a court recognizes that a
claimant has a better right to certain property than the person who has legal title
to it. • This remedy is commonly used when the person holding the property
acquired it by fraud, or when property obtained by fraud or theft (as with
embezzled money) is exchanged for other property to which the wrongdoer gains
title. The court declares a constructive trust in favor of the victim of the wrong,
who is given a right to the property rather than a claim for damages. The
obligation of the constructive trustee is simply to turn the property over to the
constructive beneficiary; the device does not create a “trust” in any usual sense of
that word. The name of the remedy came about because early cases applying it
involved trustees who wrongfully appropriated funds from trusts, making it
convenient to say that they remained constructive trustees of whatever they had
wrongfully acquired. The term persists because the analogy between the remedy
and a real trust is strong: in both cases the legal holder of title to property has no
right to the enjoyment of it. — Also termed implied trust; involuntary trust; trust
de son tort; trust ex delicto; trust ex maleficio; remedial trust; trust in invitum
Crummey Trust: A trust in which the trustee has the power to distribute or
accumulate income and to give the beneficiary the right to withdraw an amount
equal to the annual gift exclusion (or a smaller sum) within a reasonable time
after the transfer. • This type of trust can have multiple beneficiaries and is often
used when the beneficiaries are minors. Gifts to a Crummey trust qualify for the
annual gift exclusion regardless of the age of the beneficiaries. The trust assets
are not required to be distributed to the beneficiaries at age 21. The validity of
this type of trust was established in Crummey v. Commissioner, 397 F.2d 82 (9th
Cir. 1968). — Also termed discretionary trust. See CRUMMEY POWER; annual
exclusion under EXCLUSION (1). Cf. 2503(c) trust.
1. Crummey Power: he right of a beneficiary of a Crummey trust to
withdraw gifts made to the trust up to a maximum amount (often the
lesser of the annual exclusion or the value of the gift made to the
trust) for a certain period after the gift is made. • The precise
characteristics of a Crummey power are established by the settlor of
a Crummey trust. Typically, the power is exercisable for 30 days after
the gift is made and permits withdrawals up to $5,000 or 5% of the
value of the trust. A beneficiary may allow the power to lapse without
making any demand for distribution
2. Annual Exclusion: the amount allowed as nontaxable gift income during
the calendar year. • The purpose of the annual exclusion is both to serve
as an estate-planning mechanism (so that gifts made during the donor's
lifetime remain nontestamentary and nontaxable) and to eliminate the
administrative inconvenience of taxing relatively small gifts. In 2014, for
an individual, the first $14,000 in gifts can be excluded; for married
persons, the exclusion is $28,000 per couple for joint gifts, regardless of
62
Ausness
T&E F ‘17
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
xix.
xx.
xxi.
xxii.
xxiii.
which spouse supplied the donated property. IRC (26 USCA) § 2503. —
Also termed annual gift-tax exclusion.
Custodial Trust: A revocable trust for which a custodial trustee is named to
manage the assets for an incapacitated or disabled beneficiary. • The beneficiary
does not have to be disabled or incapacitated at the time the trust is created. An
adult beneficiary who is not disabled or incapacitated may terminate the trust at
any time before his or her disability, incapacity, or death.
Discretionary Trust: trust in which the settlor has delegated nearly complete or
limited discretion to the trustee to decide when and how much income or
property is distributed to a beneficiary. • This is perhaps the most common type
of trust used in estate planning. 2. See Crummey trust. Cf. mandatory trust;
CRUMMEY POWER
Dynasty Trust: A generation-skipping trust funded with the amount that is
permanently exempt from generation-skipping tax and designed to last more than
two generations. • In 2000, a settlor could contribute $1 million to a dynasty
trust. Almost half the states allow dynasty trusts, despite their potential for lasting
more than 100 years. — Also termed GST supertrust. Cf. perpetual trust (2).
Educational Trust: A trust to found, endow, or support a school. 2. A trust to
support someone's education.
Express Trust: A trust created with the settlor's express intent, usu. declared in
writing; an ordinary trust as opposed to a resulting trust or a constructive trust. —
Also termed direct trust; declared trust.
Grantor-Retained Income Trust: ) A trust in which a gift's value can be reduced
by the grantor's retaining an income interest, for a specified time, in the gifted
property. • At the end of the specified time, the principal passes to a
noncharitable beneficiary such as the grantor's child or grandchild. Essentially,
the grantor makes to the remainderman a current gift of the right to trust assets at
a specified date in the future. — Sometimes shortened to retained income trust.
— Abbr. GRIT.
Half-Secret Trust: trust whose existence is disclosed on the face of the document
creating it but whose beneficiaries are not disclosed. Cf. secret trust; semi-secret
trust.
Honorary Trust: A noncharitable trust that is of doubtful validity because it lacks
a beneficiary capable of enforcing the trust. • Examples include trusts for the care
and support of specific animals, or for the care of certain graves. The modern
trend is to recognize the validity of such trusts, if the trustee is willing to accept
the responsibility. If the trustee fails to carry out the duties, however, a resulting
trust arises in favor of the settlor's residuary legatees or next of kin.
Illusory Trust: An arrangement that looks like a trust but, because of powers
retained in the settlor, has no real substance and is not a completed trust.
Implied Trust: see constructive trust; see resulting trust
Indestructible Trust: A trust that, because of the settlor's wishes, cannot be
prematurely terminated by the beneficiary. — Also termed Claflin trust.
Inter Vivos Trust: A trust that is created and takes effect during the settlor's
lifetime. — Also termed living trust.
Irrevocable Trust: trust that cannot be terminated by the settlor once it is created.
• In most states, a trust will be deemed irrevocable unless the settlor specifies
otherwise.
Mandatory Trust: trust in which the trustee must distribute all the income
generated by the trust property to one or more designated beneficiaries. — Also
termed simple trust. Cf. discretionary trust.
63
Ausness
T&E F ‘17
xxiv. Marital-Deduction Trust: testamentary trust created to take full advantage of the
marital deduction; esp., a trust entitling a spouse to lifetime income from the trust
and sufficient control over the trust to include the trust property in the spouse's
estate at death. See marital deduction under DEDUCTION (2).
xxv. Medicaid Qualifying Trust: A trust deemed to have been created in an effort to
reduce someone's assets so that the person may qualify for Medicaid, and that
will be included as an asset for purposes of determining the person's eligibility. •
A person who wants to apply and qualify for Medicaid, but who has too many
assets to qualify, will sometimes set up a trust — or have a spouse or custodian
set up a trust — using the applicant's own assets, under which the applicant may
be the beneficiary of all or part of the payments from the trust, which are
distributed by a trustee with discretion to make trust payments to the applicant.
Such a trust may be presumed to have been established for the purpose of
attempting to qualify for Medicaid, and may be counted as an asset of the
applicant, resulting in a denial of benefits and the imposition of a penalty period
during which the applicant cannot reapply. Nonetheless, Medicaid rules allow
three types of trusts that do not impair Medicaid eligibility, since the trust assets
are not considered the beneficiary's property: Miller trust, pooled trust, and
under-65 trust. —
xxvi. Pour-Over Trust: An inter vivos trust that receives property (usu. the residual
estate) from a will upon the testator's death. Cf. pourover will under WILL.
xxvii. Pet Trust: An honorary trust that is established for the care and maintenance of a
particular animal or group of animals. • Pet trusts are generally invalid because
animals are incapable of compelling a trustee to act, and animals have no
standing in law. Effectively, the trust has no beneficiary. But some states (e.g.,
Colorado) statutorily recognize these trusts as valid. Pet trusts are covered in the
Uniform Trust Code (§ 408).
xxviii. Power of Appointment Trust: A trust in which property is left in trust for the
surviving spouse. • The trustee must distribute income to the spouse for life, and
the power of appointment is given to the spouse or to his or her estate. A powerof-appointment trust is commonly used to qualify property for the marital
deduction. See marital deduction under DEDUCTION.
xxix. Q-Tip Trust: ) A trust that is established to qualify for the marital deduction. •
Under this trust, the assets are referred to as qualified-terminable-interest
property, or QTIP. See qualified-terminable-interest property under PROPERTY.
Cf. qualified domestic trust.
xxx. Resulting Trust: A remedy imposed by equity when property is transferred under
circumstances suggesting that the transferor did not intend for the transferee to
have the beneficial interest in the property. — Also termed implied trust;
presumptive trust. Cf. constructive trust.
 “The main distinction between express and resulting trusts is this: In an
express trust an intention to create a trust is always expressed or declared.
In a resulting trust the intention is not expressed, but is inferred by
operation of law from the terms of the conveyance or will, or from the
accompanying facts and circumstances.” Norman Fetter, Handbook of
Equity Jurisprudence § 124, at 191 (1895).
xxxi. Secret Trust: An instrument, usu. a will, that appears to give an absolute gift to
another although the donee has orally agreed with the grantor that he or she is to
use the property for the benefit of some third party. • Courts admit evidence of
the promise to prevent unjust enrichment and enforce it by imposing the remedy
64
Ausness
T&E F ‘17
xxxii.
xxxiii.
xxxiv.
xxxv.
of a constructive trust on the reneging “trustee.” Cf. semi-secret trust; half-secret
trust.
1. SECRET TRUSTS: If a bequest is given to X absolute on its face,
without anything in the will indicating an intent to create a trust, a
promise by A to T to sue the bequest for Z would be enforceable in
restitution by a CONSTRUCTIVE TRUST imposed on X .
a. Secret trust because the trust does not indicate that a trust exists
b. Ct.’s allow extrinsic evidence of the promise for the purpose of
preventing X from unjustly enriching himself by keeping the
bequest
2. SEMISECRET TRUST: Olliffe v. Wells, 130 Mass. 221 (1881)
(Extrinsic evidence may not be used to prove the terms of an intended
trust and save it from failing for indefiniteness where the will devises
property in trust but the terms of the trust are communicated outside of
the will.)
a. Bequest fails
b. Because the will shows on the face an intent for X to take as
trustee, it is not necessary to admit evidence of X’s promise in
order to prevent unjust enrichment
c.  extrinsic evidence is excluded
d. Semisecret trust fails for want of an ascertainable beneficiary in
the terms of the will
e. Resulting Trust is then imposed by which the heirs or next of kin
take by way of the resulting trust.
Self-Declared Trust: A revocable inter vivos trust in which the settlor acts as the
trustee and usu. names himself or herself as the beneficiary for life, with the
remainder at death to another beneficiary. • Self-declared trusts are treated as
valid inter vivos arrangements even though legal title to the trust property does
not transfer until the settlor's death. See declaration of trust (1) under
DECLARATION (1).
Self-Settled Trust: A trust in which the settlor is also the person who is to receive
the benefits from the trust, usu. set up in an attempt to protect the trust assets
from creditors. • In most states, such a trust will not protect trust assets from the
settlor's creditors. Restatement (Second) of Trusts § 156 (1959). — Also termed
asset-protection trust.
Semi-Secret Trust: An instrument that indicates who is to serve as a trustee but
fails to identify either the beneficiary or the terms of the trust, or both. •
Traditionally, this trust was deemed to fail for want of an ascertainable
beneficiary. But the modern view is to provide the same relief as that given for a
secret trust: to receive evidence of the donor's intent, including the intended
beneficiary, and impose a constructive trust in his or her favor. Cf. secret trust;
half-secret trust.
1. Olliffe v. Wells, 130 Mass. 221 (1881) (Extrinsic evidence may not be
used to prove the terms of an intended trust and save it from failing for
indefiniteness where the will devises property in trust but the terms of the
trust are communicated outside of the will.)
Spendthrift Trust: 1. A trust that prohibits the beneficiary's interest from being
assigned and also prevents a creditor from attaching that interest; a trust by the
terms of which a valid restraint is imposed on the voluntary or involuntary
transfer of the beneficiary's interest. 2. A similar trust in which the restraint on
65
Ausness
T&E F ‘17
alienation results from a statute rather than from the settlor's words in the trust
instrument.
xxxvi. Supplemental Needs Trust: trust established to provide supplemental income for
a disabled beneficiary who is receiving or may be eligible to receive government
benefits. • This type of irrevocable trust is often used by parents of disabled
children to ensure the beneficiary's eligibility for government benefits by
expressly prohibiting distributions that may be used for the beneficiary's food,
shelter, or clothing. — Abbr. SNT.
xxxvii. Support Trust: A discretionary trust in which the settlor authorizes the trustee to
pay to the beneficiary as much income or principal as the trustee believes is
needed for support, esp. for “comfortable support” or “support in accordance
with the beneficiary's standard of living.” • The beneficiary's interest cannot be
voluntarily transferred, but creditors who provide necessaries can usu. reach it;
general creditors cannot.
xxxviii. Testamentary Trust: A trust that is created by a will and takes effect when the
settlor (testator) dies. — Also termed trust under will. Cf. inter vivos trust;
continuing trust (1).
xxxix. Unitrust: trust from which a fixed percentage of the fair market value of the
trust's assets, valued annually, is paid each year to the beneficiary.
c. CHARACTERISTICS & CREATION
i. Characteristics in American Law: Generally requires (1) intent by the settlor to
create a trust; (2) ascertainable beneficiaries who can enforce the trust; and (3)
specific property, the res, to be held in the trust. In addition, if the trust is
testamentary or is to hold land, (4) a writing may be required to satisfy the Wills
Act or the Statute of Frauds.
 *** Once a Trust is found to validly exist, ¬ then it will never fail for a
lack of trustee
o If it is a testamentary trust, ¬ (pp. 402) If the testator intends to
create a trust but fails to name a trustee, the court will appoint one,
usually executor . . . based on the underlying principle: a trust will
not fail for want of a trustee.
ii. Creation of a Trust UTC § 402
1. Type of Trust—Private or Charitable
a. Charitable Trust: trust created for the public and for charitable
purposes.
b. Private Trust: trust created for noncharitable beneficiaries
i. Declaration of Trust: UTC §401(2). In a declaration (or
Inter vivos--DURING
settlor’s lifetime
self-declaration) of trust, the settlor declares him or herself to
be the trustee of specific property and then transfers some or
all of that property’s equitable title to one or more
beneficiaries
1. Settlor retains the legal title—but as a trustee
2. Settler is subject to self-imposed fiduciary
duties.
ii. Transfer in Trust: In a transfer or conveyance trust, the
settler transfers legal title to another person as trustee
and imposes fiduciary duties on that person.
1. Settlor may retain some or all of the equitable
title
2. Settlor may transfer all of the equitable title to
3Ps
Testamentary
66
Ausness
T&E F ‘17
iii. Testamentary Trust: Trust that takes effect upon the
settlor’s death by including a gift in the settlor’s will.
1. Split of legal and equitable title does not occur
until the settlor’s death
2. Imposition of duties does not occur until the
settlor does
o *** Precondition of the validity of a testamentary
trust is for the will itself to be valid—if the will fails,
¬ the testamentary trust contained in the will is also
ineffective
o Once will is determined as valid, ¬ validity of trust
(separately) is determined.
2. Intent to Create a Trust
 Proof of intent: UTC §402(1)(4) & (5)
1. Divides title to the property into legal and equitable components
2. Imposes enforceable fiduciary duties on the holder of legal title
to deal with the property for the benefit of the equitable
titleholder
 Not just precatory language—language that does not impose
a legally enforceable duty—“hope,” etc.
3. Capacity:
4. Statute of Frauds Compliance: UTC § 407 eliminates the requirement
for a writing, but states that an oral trust must be established by clear
and convincing evidence – so UTC even permits trusts of real property to
not be in writing. (p. 429)
 In re Estate of Fournier, 902 A.2d 852 (Me. 2006) (p. 429)
5. Trust Purposes: cannot be illegal or against public policy
a. Defrauding Creditors—X—UFTA 1984— defrauding creditors
is an illegal trust purpose
b. Discrimination: (1) State actors; (2) EP of 14A of CN prohibits
the use of state action to carry out an individual’s desire to
discriminate—common issue in charitable trusts
6. Trust Property: (the res)—specific property
 Restatement (Third) Of Trusts (p. 418).: “An expectation
or home of receiving property in the future, or an interest
that has not come into existence or has ceased to exist,
cannot be held in trust.”
a. Contract Rights: 
 E.g., Pension plans, annuity, retirement plans, insurance
policies, etc.
b. Expectancies: X NO—trust requires property that is in existence
and clearly ascertainable—mere hopes/expectancies to inherit
are not interests arising to the level of property—i.e. you cannot
place into trust what you do not yet own or have an enforceable
right to obtain.
c. Promises—X (Unthank v. Rippstein p.414)
d. Future Profits.: X. No (p.418) Brainerd v. Commissioner, 91
F.ed 990 (7th Cir. 1937) (court holding that there was no trust
because there were no profits at the time of the declaration).
7. Actual Transfer of Trust Property: Legal title to the trust property
must reach the hands of the trustee—
67
Ausness
T&E F ‘17
a.  declaration of trusts—
i. settlor/trustee should execute a deed for real property—
satisfy statute of frauds
ii. personal property should be separated from all of
settlor’s property held individually to that of settlor in
his trustee capacity
b.  A transfer in trust to a 3P requires that the settlor actually
transfer legal title to the 3P trustee before the trust can be
created.
i. Real property: Settlor should execute a deed for real
property—to satisfy statute of frauds
ii. Personal property: settlor in individual capacity should
transfer physical possession of personal property to 3P
trustee
8. Ascertainable Beneficiaries
a. The Beneficiary Principle: A settlor must designate
beneficiaries of a private trust so that their identity is either (1A)
definitely stated or (1B) clearly ascertainable (2) within the
period of the applicable RAP.
b. Ascertainable Beneficiaries
i. Vagueness
ii. Class gifts  so long as the individual members of the
specified class are readily ascertainable
1. Uncertain membership:
 Example: “10k in trust to trustee, x, to
distribute to those of my friends whom my
trustee so desires.”
 Identity of the actual individuals
who would fall within Settlor’s class
gift to “friends” cannot be
ascertained with certainty
o Why?
 The term “friends”
does not have a
legally established
meaning—cf.
“children" See.
Clark v. Campbell,
133 A. 166 (N.H.
1926) (p.419)
iii. EXCEPTIONS:
1. HONORARY TRUSTS: honorary trust is a gift
that the donor intends to benefit a nonhuman,
noncharitable purpose.
 Because equitable title is ~ held by a human
or charity, no one can enforce the
arrangement and thus the trustee is on the
“trustee’s honor” to carry out the settlor’s
instructions.
68
Ausness
T&E F ‘17
Pets. In re Searight’s Estate, 95
N.E2d 779 (Ohio App. 1950)
(holding that a bequest for the care
of a specific animal is valid as long
as the person receiving the gift for
the benefit of the animal accepts the
gift and agrees to carry out the
wishes of the testator and the will
properly limits the period of time in
which the bequest is to be carried
out).
 If T violates terms, ¬
resulting trust
o Graves
 Ct.’s now recognize so long as (1) purpose ~
capricious, and (2) duration ~ violate RAP
c. Whether a Written Instrument is Required:
9. Trustee:
 Ct. will appoint trustee if necessary to ensure the trust’s creation or
continued existence
 Trustee must have capacity to serve as trustee
 Legal age
 Competent
 Trustee must accept status of becoming a trustee
 Methods:
o (1) trustee may accept by complying with the
method of acceptance that the settlor expressly
provided in the trust
o Trustee could sign a written acceptance
o Trustee’s acceptance may be implied from the
trustee’s conduct—e.g. performing acts of a trustee
such as exercising trust powers or performing trust
duties
 Cf. TRUST PROTECTOR: Settlor may also appoint a trust protector
who is directed to watch over the trustee with respect to specified
aspects of the trustee’s conduct
Pour-over provisionsclause in a will that makes
 Some powers may include . . .
a gift to an inter vivos trust
o Adding/removing beneficiaries
o Power to direct how the trustee makes investments
 Debatable as to whether or not a trust
protector owes any fiduciary duties to the
trust beneficiaries.
10. RAP: Under most Jx—the duration of the private trust cannot exceed the
period permitted by the RAP.
IV.
REVOCABLE TRUSTS
a. The Wills Act and a Present Transfer
b. Abandoning the Present Transfer Fiction
 UTC § 603
o
69
Ausness
T&E F ‘17
“While a trust is revocable [and the settlor has the capacity to revoke the
trust], rights of the beneficiaries are subject to the control of, and the duties
of the trustee are owed exclusively to, the settlor
o During the period the power may be exercised, the holder of the power of
withdrawal has the rights of a settlor of a revocable trust under this section to
the extent of the property subject to the power
 Revocable trust, ¬ trustee serves the settlor. Fulp v. Gilliland, 998
N.W.2d 204 (Ind. 2013)
c. Revoking or Amending a Revocable Trust
 UTC § 602(a)—inter vivos trust is revocable unless it is declared irrevocable
o May revoke . . .
 By substantial compliance with terms of trust; OR
 Patterson v. Patterson, 266 P.3d 828 (Utah 2011): a settlor
need not comply with the amendment requirements of a trust
unless such terms are deemed the EXCLUSIVE MEANS
for amendment.
 If no terms delineated, ¬
 Later will or codicil that expressly refers to the trust or
specifically devises property that otherwise would have
passed according to the terms of the trust; OR
 ****Any other method manifesting clear and convincing
evidence of the settlor’s intent
d. The Subsidiary Law of Wills
i. Substantive Restrictions= Yes
ii. Rules of Construction= Generally
e. Revocable Trusts in Contemporary Practice
i. The Pour-Over Will
ii. Statutory Validation of a Pour Over into an Unfunded Revocable Trust
iii. Deathtime Considerations:
1. General Creditors: State Street Bank & Trust Co. v. Reiser, 389 N.E.2d
768 (1979): Where a settlor of a trust retains the power to amend and
revoke the trust or power to control the principal and income during his
lifetime, his creditors may reach the assets of the trust after his death to
the extent that the assets of his estate are insufficient to pay his debts.
 Why?
o Because he retained control of the trust
2. Spousal Rights and Revocable Trusts: Clymer v. Mayo, 473 N.W.2d
1084 (Mass. 1985): bequests in a will to a former spouse are
o
automatically revoked applies to a revocable trust that is funded entirely
at the settlor’s death through a pour over will
f.
iv. Lifetime Considerations
Resulting Trusts: is an equitable reversionary interest that arises by operation of law in
two situations
i. If an express trust fails or makes an incomplete disposition
o Example: OX in trust to pay the income to A for life, and on A’s death to
distribute the property to A’s then living descendants
 A dies without descendants
o Because the remainder to A’s descendants fails, X holds the remainder on
resulting trust for O’s heirs or devisees
70
Ausness
T&E F ‘17
V.
ii. If one person pays the purchase price for property and causes title to the property
to be taken in the name of another person who is not a natural object of the
purchaser’s bounty
o Example: B purchases BA with money supplied by A. Unless B can show
that A intended to make a gift to B, B holds title to BA on resulting trust for
A.
PLANNING FOR INCAPACITY
a. Property Management
i. Conservatorship : default plan for managing the property of an incapacitated
person who does not provide otherwise
 Ct. appointed—if there is clear and convincing evidence that the
person for whose benefit the conservator is sought “is unable to
manage property and business affairs because of an impairment in
the ability to receive and evaluate information or make decisions”
o And by POSE that the person “has property that will be
wasted or dissipated unless management is provided or
money is needed for the support, care, education, health, and
welfare of the person.”
 Considered a deprivation of liberty, requiring DP
 Broad powers to manage a person’s property—similarly to a
trustee—but trustee’s powers tent to be more liberal than those
applicable to the powers of a conservator
 Subject to fiduciary duties of loyalty and care
 Cumbersome
 Expensive
 May involve unwanted publicity
ii. Guardianship:
 More judicial oversight
iii. Revocable Trust
 Successor trustee can take over without court involvement when settlor
becomes incapacitated
 Applies only to property put in the trust by the settlor before becoming
incapacitated
o Other property held by settlor outright, ¬ only a conservator or
agent acting under a durable power of attorney will have the
legal power to act
iv. Durable Power of Attorney: creates an agency relationship in which an agent is
given a written authorization to act on behalf of a principal
 “attorney in fact”—power of attorney
 Durable power of attorney remains effective during the incapacity of the
principal until the principal dies
 Fiduciary duties of loyalty and care
 Cf. w/revocable trusts—the durable atty in fact may be authorized to act with
respect to any of the principal’s property, including property that was
acquired after execution of the power
o Thus, a durable power of attorney allows a person to “retain full
legal and equitable ownership of his assets while delegating to the
agent a defined scope of authority to act in the principal’s stead.”
 Cf. inter vivos trust—you’re placing all of you property into
the trust and splitting the equitable and legal titie.
71
Ausness
T&E F ‘17

VI.
In this respect, analogue to a will in that it may direct the
disposition at death of property acquired after execution of
the will
 Conversely, it is also private (will=public)
 No need for judicial involvement.
o In re Estate of Kurrelmeyer, 895 A.2d 207 (2006): An attorney-infact has the authority to create a trust on behalf of the principal if the
power of attorney indicates that the principal intended the attorneyin-fact to have such authority.
TRUSTS: ALIENATION & MODIFICATION
a. ALIENATION OF THE BENEFICIAL INTERESTS
i. DISCRETIONARY TRUSTS (spray/sprinkle trusts): Discretionary trusts are
trusts in which the settlor gives the trustee discretion to determine (1) which
beneficiaries to pay and, (2) how much to pay each beneficiary
 UTC § 814: “notwithstanding the breadth of discretion granted to a
trustee in the terms of the trust, including the use of such terms as
‘absolute,’ ‘sole,’ or ‘uncontrolled,’ the trustee shall exercise a
discretionary power in good faith and in accordance with the terms
and purposes of the trust and the interests of the beneficiaries.”
1. PURE DISCRETIONARY TRUSTS
 Ct.’s still require trustees to act . . .
 in good faith,
 honestly, and
 for the purposes the settlor stated in the trust
o Hamilton Order: order requiring that if the trustee
chooses to make a distribution, he must pay it to the
creditor before paying the beneficiary or anyone
else, and the order may stand until the creditor has
been satisfied
 Thus, even though a creditor cannot compel
a trustee to make a distribution from a
discretionary trust, a creditor may be entitled
to a Hamilton Order.
 UTC § 501: “To the extent a
beneficiary’s interest is not subject
to a spendthrift provision, the court
may authorize a creditor or
assignees of the beneficiary to reach
the beneficiary’s interest by
attaching of present or future
distributions to or for the benefit of
the beneficiary.
2. SUPPORT TRUSTS
3. DISCRETIONARY SUPPORT TRUST (hybrid)
4. UTC §§ 503, 504 (p. 701)
 (a) In this section, “child” includes any person for whm an order
or judgment for child support has been entered in this or another
State.
 (b) Except as otherwise provided in subsection (c), whether or
not a trust contains a spendthrift provision, a creditor of a
72
Ausness
T&E F ‘17
beneficiary may not compel a distribution that is subject to the
trustee’s discretion, even if:
 (1) the discretion is expressed in the form of a standard of
distribution, or
 (2) the trustee has abused the discretion
 (c) to the extent a trustee has not complied with a standard of
distribution or has abused a discretion:
 (1) a distribution may be ordered by the court to satisfu a
judgment or court order against the beneficiary for support or
maintenance of the beneficiary’s child, spouse, or former spouse,
and
 (2) the court shall direct the trustee to pay to the child, spouse, or
former spouses such amount as is equitable under the
circumstances but not more than the amount the trustee would
have been required to distribute to or for the benefit of the
beneficiary had the trustee complied with the standard or not
abused the discretion.
ii. PROTECTIVE TRUSTS: mandatory trust subject to a protective provision—
the trustee is directed to pay income to A, but if A’s creditors attach A’s interest,
it is automatically changed to a discretionary interest.
 Once A’s interest is discretionary, the creditors of A cannot demand any
part of it.
 Good for Jx that do not follow spendthrift provisions.
iii. SPENDTHRIFT TRUSTS: UTC §§ 502; 503 (p. 706) Spendthrift provisions in
a trust do two things: (1) it prohibits the BENEFICIARY from selling, giving
away, or otherwise transferring the beneficiary’s interest; (2) a spendthrift clause
prevents the beneficiary’s creditors from reaching the beneficiary’s interest in the
trust.
 Characteristics:
 Beneficiary cannot voluntarily alienate her interest in the trust
 Creditors cannot attach her interest
 Creditors of a spendthrift trust beneficiary cannot obtain an order
attaching a future distribution to or for the benefit of a beneficiary—
i.e. no Hamilton Orders
o EXCEPTIONS: When a creditor may be able to reach the beneficiary’s
interests in the trust.
1. Settlor as Beneficiary: settlor creates an irrevocable trust naming Settlor
as sole beneficiary during Settlor’s lifetime with the remaining property
to pass to children upon S’s death.
 Self-settled spendthrift fund
 Fraudulent conveyance: Try to set aside trust by proving that
S funded it with a fraudulent conveyance
 Rely on state law that refuses to enforce spendthrift
provisions when the beneficiary is also the settlor of the trust
 Scheffel v. Krueger, 782 A.2d 410 (N.H. 2001) a spendthrift
provision in a trust will is applicable to claims by tort creditors
unless the beneficiary is also the settlor or the assets were
fraudulently transferred to the trust.
2. Necessaries: settlor provides a valid spendthrift that provides for annual
payments of income to Beneficiary
73
Ausness
T&E F ‘17



Beneficiary has two unpaid creditors
One is a cruise line co.
Other is the owner of a local grocery—allowed B to buy
groceries on credit
o Cs with claims for necessaries, such as food,
clothing, shelter, and medical care, stand a chance of
reaching income—based on the public policy of
encouraging creditors to supply the basic necessities
of life without fear of not getting paid
 Think support trusts for spouses, etc.
3. Spousal and Child support:
 S established a valid spendthrift trust for child.
 Child marries, has several children, and then obtains a
divorce
 C is now behind in child support and spousal support
4. Federal Tax Claims: Federal law is superior to state law under the
Supremacy Clause of Article VI of the CN.
5. Tort Claimants: Some but not all Jx allow a tort claimant to recover
against spendthrift trusts
 Reasoning: tort claimant (cf. creditor) is an involuntary
creditor—they did not have any opportunity to investigate the
beneficiary as compared to traditional creditors
 Tort claimants are innocent of any wrongdoing
o See Scheffell v. Krueger
 UTC § 503 (706) does not recognize an exception for tort
creditors.
6. Fraudulent Transfers: Scheffel v. Krueger, 782 A.2d 410 (N.H. 2001) a
spendthrift provision in a trust will is applicable to claims by tort
creditors unless the beneficiary is also the settlor or the assets were
fraudulently transferred to the trust.
iv. TRUSTS FOR STATE SUPPORTED
1. SELF-SETTLED TRUSTS: UTC §505 (2000): a person cannot shield
assets from creditors by placing them in a trust for her own benefit


Even if the trust is discretionary, spendthrift, or both, the
creditors of the settlor can reach the maximum amount that the
trustee could pay to the settlor or apply for the settlor’s benefit.
o Example:
 O, a surgeon, transfers property to X in tryst to
pay so much of the income and principal to O as
X determines in X’s sole and absolute discretion
 The trust includes a spendthrift clause
 Five years later, O botches a routine surgery,
causing grievous injury to patient. A.
 A may enforce a malpractice judgement against
the ENTIRE corpus of the trust because X,
could, in X’s discretion, pay the entire corpus to
O.
Cf. Self-Settled Asset Protection Trusts:  protection against
creditors
74
Ausness
T&E F ‘17
o
FTC v. Affordable Media, LLC., 179 F.3d 1228 (9th
Cir. 1999): Where a settlor places assets in an offshore
trust beyond the jurisdiction of Unites States courts, a
court may use civil contempt to compel the settlor to
repatriate assets pursuant to the court’s order, which may
not be overcome by an impossibility defense without
substantial evidence.
 Trust Protector, ¬ retain power
2. TRUSTS CREATED BY THIRD PARTIES
b. MODIFICATION AND TERMINATION OF TRUSTS
i. Consent of the Beneficiaries
1. Claflin Doctrine: modification or termination of a trust without the
settlor’s consent is allowed if there is consent of all of the beneficiaries
and the modification or termination is not contrary to a material purpose
of the settlor
 Ct. Recognized Material Purposes:
i. Spendthrift trust
ii. Beneficiary is not to receive the principal until attaining
a specified age
iii. Discretionary trust
iv. Support trusts
2. UTC § 411 (p.732)
 Weakens the material purpose rule—it permits modification or
termination if the beneficiaries can persuade the court that “the
reasons for termination or modification outweigh the material
purpose.”
 Permits modification or termination by consent of only SOME of the
beneficiaries—as opposed to all.
(a) . . . . A noncharitable irrevocable trust
may be modified or terminated upon
consent of the settlor and all
beneficiaries, even if the modification
or termination is inconsistent with a
material purpose of the trust.] . . .
(b) A charitable irrevocable trust may be
terminated upon consent of all of the
beneficiaries if the court concludes that
continuance of the trust is not necessary
Difference between the UTC
to achieve any material purpose of the
and the Claflin Doctrine is
trust. A noncharitable irrevocable trust
that the UTC adopts a
may be modified upon consent of all of
balancing approach
the beneficiaries if the court concludes that
modification is not inconsistent with a the
UTC material purpose of the trust
(c) A spendthrift provision in the terms of
the trust is not presumed to constitute a
material purpose of the trust
(d) Upon termination of a trust under . . .
(b), the trustee shall distribute the trust
property as agreed by the beneficiaries
75
Ausness
T&E F ‘17
(e) If not all of the beneficiaries consent to
a proposed modification or termination
of the trust under subsection . . . (b), the
modification or termination may be
approved by the court if the court is
satisfied that :
(1) If all of the beneficiaries
had consented, the trust
could have been modified or
terminated under this
section; and
(2) The interests of a
beneficiary who does not
consent will be adequately
protected.
ii. Deviation and Changed Circumstances
1. Equitable Deviation Doctrine./Changed Circumstances: Changed
circumstances (1) not anticipated by the settlor and that would defeat or
substantially impair the accomplishment of the (2) modification would
further the purposes of the trust allow modification or termination
without settlor’s consent.
 A court will permit a trustee to deviate from the administrative
and dispositive terms of the trust if compliance would defeat or
substantially impair the accomplishment of the purposes of the
trust in light of changed circumstances not anticipated by the
settlor
o * NOT enough that deviation would be advantageous or
better for the beneficiaries—deviation must be
NECESSARY to accomplish the purposes of the trust.
2. UTC § 412
 Changes it such that , it is not necessary that failure to deviate
will substantially impair the purposes of the trust—instead it is
sufficient to show that deviation will further the purposes of the
trust.
o Example. In re Riddell, 157 P.3d 888 (Wash. App.
2007): a trust may be modified to create a special needs
trust if the settlors were unaware of the special needs of
the beneficiary when creating the trust and the
modification will further the purpose of the trust.
iii. Trust Decanting: A trustee who has discretionary power to distribute the trust
property uses that power to distribute the property to a new trust with revised
terms.
1. Beneficiaries of the second trust may include only beneficiaries of the
first trust
2. The second trust may not reduce any fixed income, annuity, or unitrust
interest in the assets of the first trust
3. Duty to notify all qualified beneficiaries of the first trust . . . .
VII.
TRUSTEE REMOVAL
a. UTC § 706. Removal of Trustee.
(a) The settlor, a cotrustees, or a beneficiary may request the court to remove a trustee or a trustee
may be moved by the court on its own initiative
76
Ausness
T&E F ‘17
(b) The court may remove a trustee if:
(1) The trustee has committed a serious breach of trust
(2) Lack of cooperation among cotrustees substantially impairs the administration of the trust
(3) Because of unfitness unwillingness, or persistent failure of the trustee to administer the trust
effectively, the court determines that removal of the trustee best serves the interests of the
beneficiaries; or
(4) There has been a substantial change of circumstances or removal is requested by all of the
Removal
qualified beneficiaries, the court finds that
without cause
a. removal of the trustee best serves the interests of all of the beneficiaries and
b. [removal] is not inconsistent with a material purpose of the trust, and
c. a suitable cotrustees or successor trustee is available.
o Davis v. U.S. Bank National Association, 243 S.W.3d 425 (2007): A trustee may be removed
without showing wrongdoing if all qualified beneficiaries request removal and show that a
suitable successor trustee is available and willing to serve and removal is not inconsistent with a
material trust purpose and serves the best interests of the beneficiaries
________________________________________________________________________
_____________________________________________________________________________________
VIII.
VIRTUAL REPRESENTATION: Minor/unborn/unascertained beneficiaries
 Sometimes cts. appoint a guardian ad litem
 Virtual representation BY A PARTY WITH SIMILAR INTERESTS
 UTC § 304:
o “Unless otherwise represented, a minor, incapacitated, or unborn
individual, or a person whose identity or location is unknown
and not reasonably ascertainable, may be represented by and
bound by another having a substantially identical interest with
respect to the particular question or dispute, but only to the
extent that there is no conflict of interest between the
representative and the person represented.”
------------------------------------------------------------------------------------------------------------------------------IX.
CHARITABLE TRUSTS
o Characteristics:
o RAP ~ apply
o Tax advantages—not subject to taxation
o More freely modified under cy pres
a. CHARITABLE PURPOSES
b.
o UTC § 405(a)
Test Strategy:
i. Relief of poverty
1) Is it a charitable trust?
ii. Advancement of education
iii.
Advancement of religion
2) if not,¬ private?
iv. Promotion of health
3) if private, ¬ does it
v. Governmental or municipal purposes (e.g., parks and museums)
violate RAP?
vi. Other purposes the accomplishment of which is beneficial to the community
o Notion of generalized happiness ~ enough to constitute a benefit to the
community
o Notes (765) Trusts for benevolent or philanthropic purposes should be
avoided
c. CY PRES & DEVIATION: if a trust’s specific purpose becomes illegal, impossible, or
impracticable, or wasteful a court may direct the application of the property to another
purpose that is within the settlor’s general charitable intent.
77
Ausness
T&E F ‘17
o
Developed to address the risk that, because a charitable trust may have a
perpetual existence, changed circumstances will render the trust’s
original purpose obsolete.
i. Illegal, Impossible, or Impracticable
ii. Wasteful
iii. Deviation
iv. Discriminatory Trusts
d. ENFORCEMENT OF CHARITABLE TRUSTS
i. Federal Supervision:
------------------------------------------------------------------------------------------------------------------------------X.
TRUSTS: FIDUCIARY ADMINISTRATION
 Four Functions of Trusteeship:
i. Custodial Function: involves taking custody of the trust property and properly
safeguarding it
ii. Administrative Function: includes accounting and recordkeeping as well as
making tax and other required filings
iii. Investment Function: involves reviewing the trust assets and making an
implementing a prudent investment program as a part of an overall strategy
reasonably suited to the purpose of the trust and the circumstances of the
beneficiaries
iv. Distribution Function: involves making disbursements of income or principal to
the beneficiaries in accordance with the terms of the trust
 If a trust gives the trustee discretion over distributions, the trustee
must exercise that discretion prudently, in good faith, and in
accordance with the circumstances of the beneficiaries and the terms
of the trust.
b. DUTY OF LOYALTY
c. DUTY OF PRUDENCE
d. DUTY OF IMPARTIALITY
e. DUTY TO INFORM AND ACCOUNT
------------------------------------------------------------------------------------------------------------------------------XI.
GIFT & ESTATE TAX
78
Ausness
T&E F ‘17
POWERS OF APPOINTMENT: A power of appointment authorizes an individual to distribute a
decedent’s property or estate in a specified manner.
 Blacks: A power created or reserved by a person having property subject to disposition, enabling
the donee of the power to designate transferees of the property or shares in which it will be
received;
o Esp., a power conferred on a donee by will or deed to select and determine one or more
recipients of the donor's estate or income.
 If the power is exercisable before the donee's death, it is exercisable wholly in
favor of the donee.
 If the power is testamentary, it is exercisable wholly in favor of the donee's
estate.
 Requirements: UPC §§ 2.901, 2-902
1. donor of the power makes an intentional grant of authority to a donee
2. donee exercises the power by selecting an appointee to receive the donor’s appointive
property
3. complies with RAP
 Types of Powers of Appointment
1. Inter vivos: power can only be exercised during the donee’s lifetime (e.g., in a deed)
2. Testamentary: in that the power can only be exercised after the donee’s death
3. General: the power can be exercised in favor of any person—including the donee
 Blacks: A power of appointment by which the donee can appoint — that is,
dispose of the donor's property — in favor of anyone at all, including oneself or
one's own estate;
 esp., a power that authorizes the alienation of a fee to any alienee.
 If the donee does not properly exercise a general power of appointment, the
appointive property typically passes to designated takers in default. – or, if ~
takers are designated,¬ it reverts back to the donor’s estate
4. Limited: limited power of appointment that is only exercisable in favor of a designated
person or class-- not including the donee or the donee’s estate or creditors (special power of
appointment—which also may be exclusive, in that the donee may exclude one or more
members of a class of appointees, or non-exclusive in that the donee must appoint some
property to each member of a class of appointees)
 Blacks: A power of appointment that either does not allow the entire estate to be
conveyed or restricts to whom the estate may be conveyed;
 esp., a power by which the donee can appoint to only the person or class
specified in the instrument creating the power, but cannot appoint to
oneself or one's own estate
 If donee ~ property exercise special power to appoint, ¬ the appointive property
passes to designated persons or class intended by the donor to receive property.
5. Hybrid Power of Appointment: a power of appointment that has some but not all qualities in
common with a general (and sometimes special) power of appointment
 No fiduciary duties
 Not required to exercise the power of appointment
1. Examples:
 A woman’s will grants a special power of appointment to her nephew,
authorizing him to appoint the income of a trust to his wife and the principal of
the trust to his “wife and issue.”
 Although the nephew appoints the trust income to his wife, he fails to exercise
the power of appointment regarding the trust principal.
79
Ausness
T&E F ‘17

Upon the wife’s death, the trust principal is distributed to the man’s only son, the
sole survivor of the designated class.
 DISCLAIMER: A donee may disclaim a power of appointment, either before or after exercising
the power.
1. After disclaiming the power of appointment, the donee may no longer exercise the power
to transfer the appointive property to any appointees.
 A man establishes a trust to distribute income to his daughter and grants her a
testamentary power of appointment to appoint the remaining trust property to her
descendants upon her death.
 The terms of the trust name the man’s son as the taker in default.
 During her lifetime, the daughter disclaims her power of appointment.
 The remaining trust property passes to the son upon the daughter’s death.
 CLAIMS:
1. Surviving Spouse: UPC § 2-505: A donee’s surviving spouse is entitled to an elective
share of the augmented estate, which includes any appointive property that is subject to a
general inter vivos power of appointment
2. Creditors: Generally, a donee’s creditors may not reach appointive property that is
subject to an unexercised power of appointment.
 Exercised power: once the donee exercises the power of appointment, the
creditors may be able to claim a portion of the appointive property in order to
satisfy the donee’s debts.
 Example: A woman obtains a court judgment against her ex-husband in
the amount of $15,000 under a divorce decree.
 The woman attempts to satisfy the court judgment by reaching assets in
the ex-husband’s trust fund.
 However, the ex-husband has a general power of appointment to
withdraw money from the trust fund and has never exercised this power.
 The woman may not reach the ex-husband’s trust fund to satisfy the
court judgment.
POWERS OF ATTORNEY
80
Ausness
T&E F ‘17
Ausness’ “Good Exam Questions” Comments:
1. Incorporating Printed Text into a Holographic Will: (p.250): 
81