Gratuitous Transfers
Note that FL is all over the place in terms of testator intent – even though we are a strict constructionist state, some courts
have gotten irritated with the harsh consequences and have moved beyond the four corners of a document to better serve
testator intent!
+ Testamentary freedom
o Idea that a person has a right to choose who will succeed to his things of value left behind at death
o This is the polestar of trust and estates, and we attempt to effectuate it so long as the intent is not contrary to
certain public policies, or otherwise illegal.
 We don’t care if a testator’s wishes are stupid or even cruel. “Burn the Rembrandt”
 Testamentary freedom is highly correlated with the condition of sufficient assets – a testator of a smaller
estate is usually more restricted in his freedom to distribute because the estate can be consumed entirely in
payment of debts, administrative costs, allowance for widow and elective share
o The transfer of your wealth is not a constitutionally protected property right; statutory implications & common
law
o Some public policy exceptions restrict who the money/assets can be given to and how much, etc. Public policy
exceptions include:
 Restrictions for Bad Acts
i) Slayer statutes: meant to limit the ability of killers to gain from their actions. Two elements required in
order to disinherit:
(1) Intentional, and
(2) Unlawful killing.
ii) Abusive/deadbeat parents
(1) If you were a deadbeat parent (in jail), you don’t get to show up after your kid passes and try to
collect half of the wrongful death award
 Restrictions on Transfer that Would Harm the Family or Community (because we’d have to support yo kids)
iii) Protecting the Family/Forced sharing of estates: enforcing the support of spouse/minor children, so that
they are not a burden on the community.
(1) There could be forced savings through company/union programs that are not available to be freely
distributed by the testator.
(2) Elective Share: you must give your spouse a mandatory 30% of your estate, and if you don’t leave
your spouse anything, the spouse can elect to take that percentage anyways. So you can’t wholly
disinherit.
(3) IRA/401 accounts and Pension Funds must be given to your spouse unless he or she signed a waiver
1. These are retirement accounts, and they go to your spouse because the theory is that they are
designed to plan for your retirement, including the retirement of your spouse
2. So the federal code dictates who the beneficiaries are on certain kinds of accoutns
(4) Social Security Survivorship Benefits
1. If you are a wage earning (and paying into ss) and you die, you’ve probably left family
without your wage and income
2. And so ss benefits are monies that ss pays to the wage earner’s survivors
3. Ss determines that by definition, your children get these benefits under the state code
a. Test tube babies created after death of father in Florida ARE NOT considered children
for SS in Florida -- FL does not recognize them
(5) Funds set aside for the protection of children cannot just be yanked back and devised how the
testator wishes
(6) Protection of children can be for minor, dependent and/or disabled children
(7) If spouses and children are amply provided for from other sources, such as legacies or trusts, or are
potential inheritors from grandparents and members of their own familial line, and thus will be able
to maintain their status sufficiently within the community, then testators have an alternative for
distribution of their assets are more likely to exercise testamentary freedom
iv) Homestead protections (the heart of the family home, not the beach house)
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When certain assets are so important to the family unit and to the community, that we will not allow
you to get rid of it
 When don’t want you to give your home to your girlfriend and leave your minor child homeless
 In Florida, these restrictions are not just public policy based, but also in the state constitution
 Exempt property in the Home (meaning exempt from devise)
o The first $20k worth of stuff in your home cannot be devised
o Cars: the first two cars that are regularly used by the family are exempt
 Family must file for them
Taxation on the Transfer of Wealth As a Restriction
o Taking money and redistributing it for the common good; redistribution good for community
o Three Kinds
 Estate tax, inheritance tax, gift tax
o If you gift someone too much money, you have to pay a tax
 “If you’re going to tax me when I die, I’ll just gift it away first”
 IRS caught on and now there is a limit up to $14k per year, and after, taxes kick in
o If you die with too much money, you might have to pay an estate tax
 Tax on what you own at death if you die with over $11.4 million; IRS gets 43% of the money
over that amount
 Government is going to take a share of it when you die, and this is a restriction on your
testamentary freedom
 We don’t want people to be able to transfer money to people who haven’t earned it
 Those who inherit would not be productive citizens of society if they are just given
wealth  this could be flawed reasoning; people could inherit and still be productive
 But basically we don’t want the Kardashians; dynasty families
o If you inherit too much money, you might have to pay a tax
 Most offensive of all taxes  a tax on you, the receiver of one’s generosity
 Who are you to take my money if my aunt wanted to be nice to me?
 Florida does not have an inheritance tax! Woo!
 So location of the beneficiary is crucial here
 Because you got this windfall, we want to encourage you to be a productive citizen so we are
going to take some of it
o Generation Skipping Tax (GST)
 When dynasty families say my kids have enough money, so ill give my wealth to my kids’
kids
 This operates much like an estate tax; if you skip a generation and give to your grandchildren,
the IRS would implement a double tax: estate tax and then another tax
 Has significant implications for the use of long term trusts established for successive
generations
o In a nutshell: too much transfer of wealth in dangerous too society, and we also like having more
money (duh)
 So taxation tries to balance (1) protecting the community from unproductive citizens with (3)
protecting testamentary freedoms (because if I don’t have the ability to transfer my money,
what’s my incentive to work hard and do the best I can?)
 So $5.4 tries to strike that balance
Duration, or the Rule Against Perpetuities as a Restriction
o A rule prohibiting perpetual restrictions on property – a rule that restricts perpetual domination of rule
or ownership of property
 You don’t get to decide into perpetuity what happens with this land; we don’t want someone
who isn’t here, living, deciding what is happening with a piece of land  we want the living
to control their environment and community
 So we will give you testamentary freedom, but will only let you rule from the grave for so
long, because even if you had good intentions 60 years ago, they may no longer be valid or
up to date
 We also think it is socially desirable that wealth be controlled by the living versus the dead
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Common law rule: you could only restrict anything (land, inheritance, money) for 21 years from lives
in being: meaning anyone alive today for their whole lifetime + 21 years
 So you can preserve your family beach house for the lifetime of someone alive + 21years –
but at the end of the RAP time frame, all of the restrictions are lifted
 This was very cumbersome to have to track people down who were alive and when they died
o Now in the State of Florida, you can restrict property for 360 years!!
 Butters isn’t sure why Florida went here, but it is a clear indication that Florida really values
testamentary freedom and will help you figure out how to manage that 360 years from now
 Florida actually has optional RAPs – so you have testamentary freedom to decide if you want
just 21 years after the life of those now living
 Other Common Restricts
o Testator cannot place conditions on a gift that tinkers with one’s current marriage
 “A gift of $100k, provided that you divorce your spouse”  this whole gift would be void as
it violates public policy. We want to encourage successful marriages
 but case law is totally fine with someone incentivizing another to enter into a certain type of
marriage in the future or to discourage a marriage from happening in the future
o Testator cannot place illegal conditions on gifts
 “I give my brother $100k to kill my wife”
 No restrictions on voting rights or party affiliations allowed – voting is a constitutional
protection
Two ways we restrict testamentary freedom:
i) What conditions are permissible on gifts
ii) What assets you can give people
Two situations in which protections are extended to survivors
i) Surviving spouse (tend to have highest protections), and
ii) Minor children
Snodgrass: Father was allowed to condition daughter’s bequest on her not converting to Catholicism or marrying
a Catholic prior to age 32
i) So the daughter knew this provision existed, but she married a Catholic anyways
ii) She had to either be unmarried at age 32, or just not be married to a Catholic!
iii) Daughter still wanted the inheritance, and there were public policy arguments that she argued
(i) That this violated her freedom of religion and (ii) that this violated equal protection so that she
couldn’t marry whoever she wanted
iv) Court goes through the public policy and asks: “are these significant enough public policies that we
would not respect the testator’s wishes”
(i) So there is a balancing act between some public policy and the freedom of the testator (testator’s
freedom of speech and religion as well)
(ii) Common argument: “Could he do it while he was alive?” and if he could, then why wouldn’t we
let him do it when he’s gone? Good test.
v) So if a testator’s wishes aren’t against law or public policy, they win every time
vi) Restatement on trusts says restrictions on prospective marriages are permitted, but not on existing
marriages.
Will substitutes include: revocable trusts, life insurance policies, pension accounts and joint accounts
i) Each reserves to the owner complete lifetime dominion, including the power to name beneficiaries up
until death
Priority Scheme After Someone Dies
 Creditors are seen as more important than testamentary freedom
o They get first dibs
 Probate Lawyers are in the class of people who get paid first
o If lawyers don’t get paid, then they aren’t going to want to probate estates
 IRS is in the class of people who gets first dibs
o If we don’t pay the IRS, the government bills don’t get paid and they don’t help the
community
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Funeral Expenses/bills are also in the class of first dibs on decedent’s assets because we don’t want
dead bodies “sitting in the fridge”
Credit card bills are also in the priority scheme
Child support
Intestate Code (default will) idea that you die without a plan in place  we will bend over backwards to find
someone to give your estate to before we give it to the state;
o Law that governs distribution of your assets if you have no will, or some/all of it is invalid.
 You can die two ways: testate, with a will OR intestate, without a will
 Based entirely on statute
 40% of the estates seen are intestate; and its not just poor people who die without a will
o Can have partial invalidity, where only some assets are controlled by the code.
o Covers distribution of assets of minor children (who cannot have wills).
o Goal is to balance public policy with what you probably would’ve wanted had you bothered to write a will.
 Emphasis is on speedy, efficient determination of your heirs and distribution of the estate to them,
and reducing burden on judicial system.
 One of the most prominent presumptions is that you only want your [not companions, stepchildren, or
contracts like adoption] blood to inherit from you; doesn’t include your in-laws or best friend or
partner or long term significant other
 Another big assumption that intestate code makes is that you want your spouse to inherit from you
 It doesn’t matter how long you’ve been married or how many times
 It doesn’t matter if you’re in a happy marriage or a bad marriage
 Another assumption is that those equal distances in your bloodline are equally loved
 “Equally near, equally dear”
 So your brother and your sister get an equal share; or all of your kids get equal share
▫ Exception: half-blood siblings: get half the share that full blood siblings get
 This might not be what you want, or truly be fair depending on what you gave one during life
 FL: Another assumption: UPC contemplates that parents get a share, Florida goes down the table of
consanguinity before it ever goes up (page 60)
 We assume that you would want to give everything to your children and grandchildren before
you give to your parents, grandparents, etc.
 Seems to be what most people want and seems right based on need
 Spouse, children & grandchildren  parents & grandparents  siblings
o Probate codes usually only provide for spouses and blood relatives – usually no provisions for charities, nonrelatives, step children.
o How does it happen?
 Sometimes it’s a deliberate choice because you don’t have anything to give (debts would wipe out
assets)
 Sometimes it’s a deliberate choice because you don’t want to deal with it (the expense, hassle, sad)
 Sometimes just due to procrastination or people putting off this tough issue
 Tough question to talk about death & what happens to your kids if you can’t take care of
them; Also hard to decide who gets what because we want to be equal
 Sometimes there is a failure or issue in the will, and so the will is not valid
 Sometimes the entire will fails in total due to improper creation
 Sometimes the will only partially fails; partial intestacy
▫ Either because a provision was invalid, ex: violated public policy or because
someone even forgot to include something in their will, such as a bank account
 If you do not have a residual clause, “rest residue remainder of my estate,” likely to have partial
intestacy
o Florida Intestate Code asks three questions when trying to figure out who your heirs are
 (1) Do you have a spouse?
 (2) Do you have children?
 (3) Whose Children are they? (Are legally adopted children treated the same as biological children?)
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 are they marital? born outside of marital relationship? answers question creates decision tree
o If you don’t like the intestate code, you’re solution is to make a will!
Who Inherits?
o “Heir at law” – someone who inherits under the intestate code, rather than because you named them as an
heir. People who are named because the law deems them so
o Devisee: someone you named who inherits under the will
o Beneficiary: anyone who receives something, regardless of why (by will or by law)
 Representation: The inheritance code provides for inheritance by right of representation: permits
living descendants of predeceased relative to represent their ancestor for the purposes of inheritance.
You inherit “by representation” or by your bloodline.
D
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C1 C2
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GC1 GC2
*So by right of representation, if C2 dies, then half still goes to C1 and half to the side of C2, with the GCs
breaking the half share in two and each receiving a fourth
 policy behind this = taking care of your family; you want your children to have your assets
o Issue: your children and your children’s children; basically, your descendants
 FL uses the word issue a lot because we generally defer to your children and spouse
o Table of Consanguinity: Each step (up or down) counts as one degree.
 In FL we only look to ancestors if there are no descendants.
 “Laughing heir”: one so distant they will feel no sorrow at the decedent’s passing, but merely joy at
receiving inheritance.
 In FL: anything beyond grandparents and their descendants, with exception for Holocaust
survivors.
 If no suitable heirs are found, property escheats to the state, which holds it for 10 yrs to give
other heirs opportunity to come forward.
o Spouses: 732.102 asks the question, do you have a spouse, and if you do, then the state will define the
spouse’s share based on a series of questions. 732.103 deals with what spouse isn’t getting
 Get either 50% or 100% of probate estate, depending on circumstances.
 No children?  Spouse always gets 100%
 Only children from that relationship?  Spouse gets 100%
▫ We don’t look at the actual need of the child or the surviving spouse or the
value/strength of a marriage; we just look to the family setup
▫ We don’t like to look into nitty gritty of intimate family issues
 Surviving spouse has children from prior relationship and decedent has no children? 
Spouse gets 100%
 If the decedent has children from a previous relationship  we divide the estate 50/50 and
Spouse gets 50% and the decedent’s children (from previous relationship) get 50%
▫ Why? We’re worried that the surviving spouse will cut out decedent’s children
Who counts as spouse?
 Must be actually married (no common law marriage in FL).
 Gay marriages weren’t recognized; Obergefell forces us to
 No such thing as “legal separation,” either are married or aren’t; you have the divorce
certificate. No, “it’s complicated.”
▫ If not divorced at time of death, then married.
 FL versus UPC: note that the UPC asks if there are parents in the picture (parents of decent)
 Florida doesn’t even ask this, and thinks it doesn’t matter because typically, you don’t die
thinking that you are going to support your parents, but rather, your spouse or children
 But note that Florida is a uniform probate state, and we follow it but we tweak it
o Jointly owned assets: survivor gets the entire asset. Is a way to circumvent the probate code.
 Also applicable to life insurance provisions and pay-on-death accounts.
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Simultaneous Death: Where two people die so close in time that it is impossible to determine who died first.
Statute raises a presumption of non-survival that can be rebutted by sufficient evidence that the successor
survived, for even an instant. Can have important effects on the flow of inheritance, where spouses die almost
simultaneously.
 Goal: We want the beneficiaries to actually have use of the inheritance – we want you to live long
enough to receive and enjoy it; but also takes out evidentiary questions of who died first because we
don’t want to have that fight (like one would be excited that a certain spouse died first . . . gross)
 UPC: designated to give more clarity and to establish that one lived long enough to inherit/enjoy
 Surviving spouse must have survived for 120 hours so that we have clarity  so you would
never meet this in a plane crash, but could in car crash and life support, etc
 In FL, the beneficiary must be proven to have survived the decedent by any amount of time by
“sufficient evidence.” Which could be like one second or just one minute! So FL is weird because it
is okay with dealing with the mess and question of who lived the longest; prefers the argument
 If you cannot show who died first, then property of each shall be disposed of as if they
survived.
 If both spouses die simultaneously and there is a joint bank account/tenancy, half goes to
each as if they had survived.
▫ Life insurance: proceeds are distributed as if insured survived beneficiary
 Survival is required b/c the dead may not receive assets.
Inheritance by representation
 Per stirpes: Equality in vertical ancestral lines. What FL uses.
 Per stirpes is the minority scheme; challenges the “equally near, equally dear”
 Note that this is not typically what a default will would look like, since grandparents treat
their grandchildren equally; but in this scheme, if one child had three kids and one child had
two (and those children are dead) the set of three grandchildren each get less than the set of
two as they both split an even share into parts
 Per capita: Horizontal equality; equality among all descendants of inheriting generation.
 if everyone in the first generation is deceased, then that generation is skipped and the division
starts with the next generation
 Rules:
 (1) surviving decedents of a near generation take before the farther generation – they take to
the exclusion of the farther generation
▫ parents take before grandchildren (if grandmother/father dies)
 (2) Children take equally and collectively – they each receive same; law presumes parents
love children equally
 (3) any person who dies w/o decedents
 Rules:
i.
Parents take before children
ii.
Children take their parent’s share equally and collectively.
iii.
Ignore the deceased childless in any distribution scheme.
 Per capita/per stirpes distinction only matters where an entire first generation doesn’t survive – so
usually, we don’t see the difference because there is usually someone alive in closest generation
Collateral heirs: anyone who isn’t either your ancestor or descendant.
 Half-siblings: FL only gives them half a share, unless all the heirs are half-blood, in which case all get
a full share.
 Only relevant if you have no children and your parents predecease you.
Laughing Heir EXCEPTION: Florida intestate code tries not to encourage laughing heirs
 We don’t go too far down the table of consanguinity; what our statute does is basically goes to
descendants of your grandparents
 EXCEPTION: there is an exception to Holocaust survivors  the concern is that they didn’t
have any survivors and there weren’t any records to locate them if they did. So FL legislature
pass exception that says when you are dealing with someone who is a survivor, and we know
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that they don’t have any surviving heirs, we will allow you to go down the table of
consanguinity bc we know how difficult it will be for you to find cousins, siblings, et c
Non-blood relatives taking a share of your estate.
 Florida code tries to make sure that non-blood relatives don’t inherit  the idea of non-relatives, third
parties, charities to inherit is not something most probate codes implement
 Even step siblings, because they are not blood relatives, are not included in the intestate code
 Is the idea of giving to a non-blood relative worse than giving it to the state? How far are we willing
to go before we throw in the towel?
 EXCEPTION: FL’s intestate code says that where we can’t find any of these blood relatives, we will
give it to the decedent’s predeceased spouse’s relatives – that is if the spouse died before
 Last ditch effort to find relatives that might take and still wont be laughing heirs
 Rare for someone to die without relatives doe
Adoption: entirely a creature of statute. Adopted children are treated identically to natural born for
inheritance purposes  see the policy of wanting to encourage a family/ treating child as your own.
Terminates the natural parents’ rights to inherit from the child, and vice versa. Likewise, adopted children and
their adoptive parents inherit from each other; no longer theirs, but part of our family.
 Adopted siblings treated as full-blooded, for public policy reasons of encouraging adoption & full
integration of child.
 Adoption for Non-traditional reasons (just to have an heir or family rights)
 Adult adoptions for same-sex relationships for legal rights (HIPAA & rights at death)
 More abuse beyond this: men adopting their girlfriends so that she gets a share of inheritance
▫ Courts look down of these and will often strike down for public policy reasons
▫ But then some courts didn’t want to touch these cases bc of the use by gays as well
 2 EXCEPTIONS in Fla.:
 Step-parent adoptions: can inherit from both natural and “new” parent.
▫ In FL, if the new marriage and step-parent adoption occur after the natural parent is
dead, then child retains inheritance rights from their natural parent.
 This only has significance when the deceased parent would later be inheriting
something themselves (i.e., the adopted child is inheriting by representation).
▫ Donnelly: Granddaughter is adopted after father dies and mother remarries; the UPC
result is that she gets none of father’s share of inheritance when grandmother dies.
Under FL law, she would have received his share.
 Close-family adoptions: typically, will retain inheritance rights from both natural and
adoptive parents.
▫ FL: If adoption occurs after the death of the natural parent, there is no effect on the
inheritance between the child and the parent.
▫ Kind of a windfall for child who gets to inherit from both sides, but there is public
policy for encouraging so that if natural parent dies, someone steps up to the plate
 Equitable adoptions: Probate court may use its equitable powers to deem a child adopted where
families never technically went through the adoption process and filed the papers, but it would be the
right thing to do. We see this most often with poorer families/less sophisticated cultures
 There basically has to have been a promise that you would adopt a child, in exchange for me
giving him to you, and that you would raise him as your own
 while there was no paperwork, you know there was a plan. we should treat you as if there was
adoption because fairness/equity is at stake.
 4 elements are required:
 (1) There must be an agreement between the natural parent and adopting parent that the
adoption will occur (meeting of the minds)
 (2) There must be performance of the agreement – the natural parent must turn over the
child.
o (tendering/delivering of the child to be fostered to adoptive parents delivery 
iconic, tear-up moment)
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(3) The child grows up believing they have been adopted; essentially, the child must
perform the act and lives it out, embracing the new familial relationship
o performance  child, themselves, holds themselves out to be part of the family;
referring to parents as mom/dad
 (4) The adoptive parent treats the child as if they were their own
o they hold themselves out in public manner as having a parent/child relationship,
and actually act as if this was their actual child
o parents call them son/daughter
 There is a contractual and equitable aspect to all of these – a promise must have been broken,
someone was duped, the court needs to be setting right a wrong, etc.
 Courts will look at these promises and see that it would be most fair to honor the equitable
adoption as doing equity
▫ Hard burden to meet doe: must prove equitable adoption with clear and convincing
evidence  we don’t want courts to look into why there was never an official
adoption or to find fault in that aspect; unless there was intentional deception. We
just care about the promise made and the presence of the elements
 LIKELY TO BE ON EXAM – Doesn’t fall within statute, but equitable b/c a, b, c….
 Equity can also be used to argue that an adoption should not be recognized, because it was
done for irregular or fraudulent purposes.
Non-martial Children: where a couple has a child out of wedlock, the child used to not be considered an heir
of either the father or his/her own mother; the child was illegitimate
 However, if the couple married while the mother was still prego  pressure to marry
 Exception: if after the child was born, the father was accepted as the true father by society, then child
was still considered legitimate. Saw this a lot with men being shipped off to war, etc.
 TODAY: there was a slow progression towards doing away with these harsh laws
 Trimble v. Gordon: IL one of the first states that said this is wrong to not allow these children
to inherit. Moves the law forward a little bit by saying: maybe we’ll allow you to inherit if
paternity has been established while the father is still alive; if not genuine dispute regarding
paternity
 Lolli case: you may absolutely inherit from your father if you can establish that your father is
really your father, within the first two years of your birth (contemporaneous with birth)
▫ Problem with this rationale is that clearly the baby can’t establish paternity, lol, so it
was really in the hands of the mother to get her shit together & assert paternity rights
or else the child is disinherited forever
 But there could have been an agreement btw the couple, say if the father was
a prominent person and they wanted to keep the baby hush hush, etc.
 NOW, the probate code doesn’t distinguish between marital and non-marital children, but
paternity still must be established
▫ There is a statute of limitations in place so that the father isn’t blind-sided in that he
is suddenly obligated to support this child (or his estate), but if father didn’t know, he
could participate in the child’s life
▫ Child has his/her own cause of action, but must prove paternity w/in 4-5 years after
reaching 18
 Florida follows UPC pretty closely with this
▫ There are situations where we presume you’re someone’s child
 (1) Through any marital relationship; if mom is currently married, the law
always presumes that the hubby is the father & that mom is faithful
 rebuttable, but the law presumes
 (2) If a man and woman are living together when the child is born,
presumption that the man is the father, IF the man holds himself out as the
father  man has to act like this is his child (presumption in favor of father)
 (3) Where both parents acknowledge a parental relationship in writing
 both sign the birth certificate, or other writing
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Child is allowed to bring post-death causes of action to determine paternity (no
longer care about catching dad off guard; child must bring paternity claim at some
point before the estate is closed & distributed
 Men will draft wills in such a way to provide for/prepare for another child out there lol
▫ Want to provide for child in a specific way and plan for the risk – some men even
draft to intentionally cut these would be heirs out, but the language must be explicit
and specific versus boilerplate
o ARTIFICIAL children: We treat children who are conceived and in utero as heirs of their biological parents if
they are in utero at the date of death.
Anything before this is “illegitimate”
Marriage
Conception
Birth
 ART children, conceived with Dad’s DNA after he is dead… these are truly illegitimate children
under the definition because marriage terminated at the death of the father; could technically also be
the eggs of the deceased mother
 Winward case: where the mother has an ART child and then applies for social security benefits, and
the Feds said, we are going to defer to the Massachusetts probate code to tell us whether or not this
child is the heir of the father, and if it is, we will give you the social security benefits
 Massachusetts said three things but happen for the ART child to be an heir
▫ (1) You must have genetic proof
▫ (2) You must show us that the decedent consented to post-death conception
 Did dad put the sperm away just in case he went sterile to use while he was
living? OR did dad contemplate that he’d like to become a father after death.
 You have to want to be a parent post-death (gross)
▫ (3) The deceased parent has to also agree that if you use my DNA after I’m gone, I’m
going to provide support - purchasing a life ins. Policy or setting up a trust would be
a good showing (intention to provide child support after death)
 We are really looking for intent that this person meant to create and heir and
support the heir after he or she is gone/ a knowing participation as parent
▫ Note: the sperm banks aren’t helpful; only ask if you die, do we destroy or give to
spouse
 So the court had to balance the reproductive rights and an orderly probate administration with
what would be for the child (which is always to inherit)
 LABINE 1971  Louisiana law says you must give your child a share of your estate if they are under
25 upon your death, designed to ensure that family farms stay within bloodline. Illegitimate children,
however, have no claim.
 FL doesn’t recognize you as an heir if you aren’t conceived/in utero upon father’s death
 Mothers claim this is unfair, as their children could inherit if born in CA/Mass  S. Ct. says
this is solely as state law issue so too bad, so sad – have your children in one of those states
 The only way to provide for ART children in FL is to write a will or leave a trust that
specifically benefits them, because the law won’t get there by default. OR they can
explicitly say in will that they don’t want to provide for kid if wife has child after I’m gone
 Note, this law makes FL uncomfortable: can’t strike right balance between honoring
deceased’s wishes and treating these kids like illegitimate bastards  solution: make the
donation banks more strict with their requirements of one’s intentions!
 1977 Triamble (Illinois)  alive
 Lalli 1978 New York  follow-up order; agrees with Illinois but also within 2 years of birth of that
child, you must have this determination; Contemporaneous “still sweaty from sex lmao”
 SOME states require that paternity must be determined by a certain age.
o Paternity: Several ways to be considered a child’s father in FL:
 If you are married to the mother you are presumed to be the father.
 If you marry the mother after the birth, you are also presumed to be the father.
 If a court adjudicates you as the father, you are considered the father.
 If you acknowledge the paternity in a writing (i.e., on birth certificate) (infrequent).
o Posthumous  people born post-death of a parent — you survived your parent (father)
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Woodward 2002 (Mass)  dad froze his sperm because he had cancer before beginning chemo treatment.
Did not survive cancer. Wife nonetheless used his sperm and had twins. She then applied for social security
benefits
 [note, fed gov’t does not get involved in trusts & estates, deferred to state law]
 [In FL, you must be in utero at time of father’s passing], in FL, she’d be SOL
 Want to honor testamentary freedom, if dad was alive, he could have disinherited the twins
 what’s more important? blood line or test freedom?
 Decided Test:
 (1) is there a genetic relationship between deceased relationship & child
 (2) deceased person (sperm/egg donor) consented to post-death sperm/egg use (i.e., did you
want to become a parent post-death, or was it only made in the event you could
survive/rendered sterile)
▫ speculative/difficult to prove
 (3) Donor of this material (egg/sperm) agreed to support this child in event of post-death use
(gestation)
▫ how do you agree to support a child post-death… the only way to do that is to make
testamentary decision (i.e., putting it in will)
Notes from Woodward: law is deferential to testamentary freedom, deceased more importantly
Some states say sperm/egg must be in utero within a year, other say but they are in mourning! stress may not
even allow them to get pregnant
Disqualification
o Overriding Testamentary Freedom  you listed this person as an heir, but for these reasons, you nonetheless
will not inherit from them
o 5 different ways to get yoself disinherited:
 (1) Parent disinheritance statutes: In FL, probate court defers to the family court; if your parent
rights were terminated, then you may not inherit because you abandoned your child
 should a parent inherit from a child if they were absent, abusive, neglectful? We see this play
out in wrongful death cases, so there are big $$ payouts 
▫ Uniform Probate Code  if parent abandon a child, parent does not inherit
▫ Florida  Policy Grey Areas
 (1) FL always wants to leave hope for families that are broken to reconcile;
abandonment, alone, is not enough.
 (2) Parental interference moves hand in hand with neglect, so the court would
take care of it
 (3) cognitive inabilities that prevent parents from being parent they wish they
can be
 732.1081 Termination of parental rights — For the purpose of intestate succession by a
natural or adoptive parent, a natural or adoptive parent is barred from inheriting from or
through a child if the natural or adoptive parent’s parental rights were terminated pursuant to
chapter 39 prior to the death of the child
 FL only disinherits a parent for intestate distribution; child can still leave them something in
his or her will
 Must have judicial termination of parent rights before child’s death (this is kinda ironic, if
your parental rights are terminated you would not inherit anyway)
 UPC: will terminate for abandonment issues; neglect. FL has a higher standard where the
court system has to have actually terminated parental rights to disinherit bc this presents post
death fights about whether or not parents were good parents in probate arena
 (2) Failure to support your spouse; “bad spouses”: Don’t have this in FL; remedy here is to legally
divorce them.
 we will not disinherit an abuse/absent spouse. We will only disinherit someone for
dissolution of marriage. This goes back to FL’s idea of deferring to family court; 30% rule for
spouses in FL even if he was a SOB
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FL doesn’t recognize bc the feeling is that it is up to players in the marriage to determine
whether they have a good or bad marriage and if it’s bad enough you’d get out
 Spousal rights are terminated at divorce and anything short of that, you will still get spousal
rights
 UPC doesn’t have spousal disinheritance, so states with them have specifically enacted
(3) Slayer statutes: (obviously in Florida) Cannot inherit from someone if you were responsible for
their death and 2 elements are met – the killing was i) intentional, and ii) unlawful.
 A criminal conviction can be used to demonstrate this, but the evidentiary standard is high
(beyond a reasonable doubt).
 A civil finding of liability can also be used to show this, and the evidentiary standard is lower
(preponderance of the evidence).
 If the statute applies, then the slayer is treated as deceased for purposes of inheritance.
▫ This may result in their children benefiting from the killing.
▫ For joint assets, the killer only keeps their half, and doesn’t get the decedent’s.
▫ For pay on death accounts, the killer is treated as deceased.
 FL statutes (one in probate & one in trust code): cannot draft around the statutes
▫ Both require either a criminal conviction or civil judgment establishing that the
beneficiary did two things: 1) unlawfully and 2) intentionally participated in one’s
killing
 Unlawful: there are lawful homicides: self defense, mentally insane
 Intentional: non intentional killings like manslaughter, reckless behavior
▫ So what you’re charged with and ultimately convicted for AND whether there are
any recognized excuses for the behavior matter in determining whether your
conviction will get you disinherited under the statute
▫ You can have contradictory judgments between criminal and civil court, but you only
need one to stick  crimes of passion are the ones where there is confusion on how
to hold
 the slayer statute is meant to deter intentional and unlawful killing (intentional/ unlawful
homicide)  i.e., if you plead insanity defense or self-defense, you can still collect. OR Civil
court judgment (preponderance of the evidence) that you killed the person
▫ killer is treated as predeceased 
 Hypothetical: Grandfather dies with 3 kids: Child 1, Child 2, and Child 3;
Child 2 has a child, aka GC2. Child 2 kills Grandfather. GC2 can still inherit
from grandfather even though his parent killed grandfather. f
▫ you cannot draft around the slayer statute to say murderer can benefit  don’t
wanna reward murder/perpetrator
(4) Acting unethically as an attorney: (FL obvi firm on this) FL professional conduct rules prohibit
an att’y writing themselves or anyone in a close familial relationship with them into a will, unless
they are related to the testator/client.
 Recent FL statutory provisions have made it so that a lawyer may not draft ANY written
instrument that gives them a gift (in all contexts, not merely probate).
▫ Any such gift will be void per se (no one has to challenge it) and lawyer could even
lose law license
▫ Another lawyer could draft the document to circumvent this, however – like the
attorney friend down the hall; OR there could be a random beneficiary in the will of
the attorney’s choice
 Butters gave the example of old lady who had the attorney’s alma matter in
her will lol  there other ways to challenge suspicious wills
 Applies to any gift to a lawyer or a person in close familial relationship with lawyer: spouse,
ancestor, descendant, sibling, or a spouse of one of those persons
 Attorney’s fees must be awarded against lawyer who does this: whatever it costs to unwind
this, the attorney who drafted it is going to have to pay
(5) Procurement of Marriage Fraudulent/invalid marriages: traditionally, only one of the two
people in the relationship have standing to challenge the validity of a marriage and cause a divorce or
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separation  like we know at time of death of a spouse, the other is entitled to elective share
regardless of whether they had a terrible marriage.
 Mad beneficiary that a fraud got inheritance has the burden to prove this marriage was
procured by fraud
 So we can’t meddle in private affairs unless we have some sort of proof that this marriage
was procured through some sort of (1) fraud/lie (false prego claim, or prego by someone
else), (2) undue influence or (3) duress AND it is proven by preponderance of the evidence,
we will take away a spouses financial inheritance rights
▫ But we don’t take away the marital contract
 If a marriage is shown to be invalid, we treat the surviving spouse as being predeceased for
probate purposes (though the marriage itself isn’t invalidated; they can still collect Soc.
Security benefits, for example).
▫ You would only lose your statutory rights, such a the elective share
▫ But person may still get will/estate plan devises unless it can be show that these
documents were also procured by fraud
 Each beneficiary designations would have to be challenged as fraud, undue
influence or mistake
 We see Fraud with: (1) Marriage traps: false prego claims and (2) Older persons who are
enticed into marriage under false pretenses  think Heartbreakers
 A defense to these challenges is ratification – if the issue was revealed or sufficient time had
passed and the decedent chose to stay married, then the defect is cured. Also must be proved
by preponderance of evidence.
 Having marriage ruled invalid for probate purposes does not affect anything explicitly left to
the spouse in the will.
 Prevailing side gets attorney’s fees in marriage legitimacy cases, so deters weak challenges
to heavy allegations
 (6) Elder Abuse — brand new in Florida as of July 2021
 The bill creates s. 732.8031, F.S., and amends s. 736.1104, F.S., prohibiting a person who
commits any of the following offenses on an elderly or disabled person in any state or jurisdiction
from serving as a personal representative or inheriting from the victim’s estate, trust, or other
beneficiary assets:
▫ Abuse;
▫ Neglect;
▫ Exploitation; or
▫ Aggravated manslaughter.
 If you killed an elder person, slayer statute takes care of that. This statute says even short of
murder, if you met this criteria, you will not inherit.
 Vulnerable adults: anyone who is  anyone who needs care
REDUCING OR REFUSING INHERITANCE
+ Advancement
o When you’ve already been given the gift the testator was trying to give you; some jurisdictions don’t let you
get it twice. Concept that if your parent gives you your inheritance now, it would be debited from what you
would receive later to be fair to the other siblings, for example
o In Florida, however, something only counts as an advancement under 2 circumstances:
 (1) There is a contemporaneous writing made by the donor that specifies that the gift is to be deducted
from an inheritance later (so the beneficiary has the understanding that this will happen)
 (2) Where the donee later admits in writing that the gift was meant as an advancement; the donee/heir
“falls on her sword.”
o Where neither of these occur, then an inter vivos gift does not interfere with later inheritance.
 Won’t be enough that pissed off siblings are complaining, etc.
o If the person who gets the advance dies, his heirs don’t have that counted against them if inheriting by
representation.
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o
+
The value of the advancement is its value at the time when the recipient took possession and had the right to
use it. Unless the advancement agreement specifically provides otherwise, the time value of money will not
be included. 50k now will be 50k in 10 years, because it gets too complicated
 So if there was $200 left after X died, and we learned that A got $50 during his life -- We are going to
add that $50 to the theoretical pot, as if dad never gave it away in the first place -- for redistribution.
So now instead of both getting 100,000 -- each will "Get $125,000" --- but then, A is really getting
$75. So we just do this to be able to calculate what B should get  so we give that amount to him and
then the actual remainder after the $125 is deducted from the $200, if given to B
 So it's really like B is getting $125 and A is getting 75 (125-50)
 Because 125 + 75 is 200
Relinquishing inheritances
o When people don’t want to inherit property that is more of a liability; or you may just not want to be
associated with the decedent so the laws allow for
 (1) Assignment: accepting gift and then giving your inheritance to someone else
 (2) Refuse
 Release: giving up your right to inheritance in advance.
 Disclaimer: refusal to take upon devise
o Assignment: I’ll accept it, if I am given something, and I will give it to you. I will assign you my right, in
exchange for a bargain for something else. I’m accepting and instead, passing along to you
o Signing Waiver/Release: kind of like a pre-nup: saying, “I don’t want anything of yours, and I will not claim
any inheritance even if I’m given it.” We don’t see these as much as assignments and disclaimers
 Prophylactic measures: Butters says that she makes certain employees like home house keeps, nurses,
etc., sign these documents to protect her older clients from potentially problematic situations
o Disclaimer/Renunciation: refusal to take a gift/inheritance. Might involve worthless property that is a
liability, or when you want to have a gift pass to another. This is a big deal, because it affects creditors’ rights
and inheritance rights of others
 Law presumes you want a gift, so beneficiary must specifically and affirmatively opt out
 Timing: In FL, you must disclaim before we distribute to you: you have to refuse to take it before it
is actually tendered to you. No exact time limit in which you have to disclaim by, but practical 9
month limit due to federal tax rules, you could be taxed.
 When you disclaim, you’re treated as dead, so asset flows however it may. You have no say.
 This is true of disclaimers for wills, trusts, pay-on-death accounts, joint asset survivor, etc.
 AND once you disclaim/ tell state you don’t want, you cannot take that back! Disclaimer
must be signed and notarized, so it has to be pretty well though out
 Family Settlement Agreement Statute: if disclaimers don’t work to rewrite the will the way you want
to, then the family can rewrite the will by agreement.
 Has tax consequences, whereas a disclaimer does not.
 Process for disclaiming:
 Must be in writing
 Requires 2 witnesses and must be notarized
 Must be delivered to the person in charge of the assets/estate you are disclaiming – must
make the executor of the instrument aware that you don’t want this thing
 Anyone can disclaim and you can disclaim:
 Your entire inheritance; you can cherry pick for certain gifts (cash not land); you can have
formulated disclaimers (accept everything up to $1mil, then everything will go to your kids);
conditional disclaimers (if my brother refuses, I do too)
 Anything in a beneficial instrument: will, bank account, trust, land, anything you are
inheriting as a result of someone’s death
 NOTE: where you have an incompetent child or elderly person who can’t make decisions, the
guardian can execute the disclaimers for them
▫ Note, children could maybe challenge such a disclaimer on their behalf later on if
there was a COI, such that if the parent disclaims for their child it goes to the new
wife per the will, etc.
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Conditions under which you cannot disclaim
 If you have already accepted the gift
 Where you have previously waived the right to disclaim
 Where you have assigned the property or otherwise conveyed/promised it to another.
 When you are insolvent at the time you want to disclaim
▫ Must be both cash flow insolvent (unable to make monthly payments on regular
basis) AND net worth insolvent (assets are less than your liabilities)
▫ You can’t refuse money when you have all dese bills and creditors waiting
Effects of disclaimers: the disclaiming individual is treated as dead and has no right to direct where
the gift flows.
 Intestate inheritance: follows the Table of Consanguinity
▫ If a child disclaims his estate (per stirpes), his share would go to his children to be
split: so if the will says, I give to B per stirpes, and he disclaims, then it goes to his
chilrens
 Testate inheritance: the language of the will controls for who gets next; consequence of
disclaiming
▫ If will says I give to B, and if not then to C, then we give errythang to C if B
disclaims
▫ If will says “To A if she survives me” and then if A disclaims, the gift just fails and
falls to residue
Disclaiming assets held as tenants in the entirety results in the interest being passed down through the
decedent’s inheritance line. Remember TE each own 100%
 We still allow TE to disclaim, we just sever the ownership, we sever the account in half and
the spouse must take half but doesn’t have to take the other half  I guess this would happen
if a spouse refuses her deceased spouse’s gift
Disclaiming tenants in common interest, we have to look to the other owner’s for how to distribute
the share
 Say if A,B,C and C dies, then each originally had 1/3, and at C’s death, each A and B would
get an additional 1/6 (1/3 split in two). But B could disclaim his 1/6 and for purposes of
redistribution, we would act like B is deceased and the full 2/6 (1/3) would go to A.
Why Disclaim
 B is already rich; B thinks it will go to his kids if his dad dies, and kids need it more; B
doesn’t want his wife to get the money, or part of it
Note Estate planners think ahead about consequences of disclaiming  look at how the chips might
fall to figure out the best way to redistribute and write the will
PROTECTION OF FAMILY
+ Protections for Spouses/Minor children
o Butters noted: there are some scenarios where we really overprotect and some where it seems like we don’t
do enough
 Primary concern is to make sure the spouse and children are taken care of so that they don’t
become the community’s problem: you have the testamentary freedom to be SOB, but you have to
take care of your family on some minimal level
 FL: we have both statutory and constitutional protections of both the spouse and minor child
 Goal: we need to leave enough for the spouse and child so they don’t become our problem
 FL likes a fast methodology for administering someone’s estate, identifying the beneficiaries
and creditors and passing on money and closing the estate & decedent can RIP
 Get the children/spouse what they need  “Operation rest in Peace”
o 5 Statutory/Constitutional Protections
 Homestead is the only automatic one; all the rest require the beneficiary to opt in.
o (1) Homestead protections: See entire section below.
 Homestead is so strict that it is placed in both statute and Constitution in Florida
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o
It is automatic – the only protection that is automatic and we can’t do anything about that  you
don’t have to do anything to get it and you can’t do anything about it; “drops like a rock”
 McKean v. Warburton, 919 So. 2d 341 (Fla. 2005)  Homestead property is not an asset of the
decedent’s estate and therefore, is protected from forced sale to pay the estate administration
expenses.
 Homestead property, whether devised or not, passes outside of the probate estate. Personal
representatives have no jurisdiction over nor title to homestead, and it is not an asset of the estate;
exempt from deceased person’s hands, but not exempt from beneficiary’s debt
(2) Elective Share: Cannot completely disinherit a spouse – (1) if decedent was FL resident (domiciled here
at death), (2) there was a valid marriage, and (3) no pre-/post-nuptial waiver of right to elective share = the
spouse is entitled to take a forced 30% of the elective estate.
 Spouse must elect to take it and then he/she gives up all other inheritance rights
 So spouse decides that she doesn’t want what has been given under the will or what the
intestate code gives; but would prefer the elective share
 We don’t care how long you were married
 Spouse has the shorter of 6 months from receiving notice of administration or two years from date of
death (if no notice) to come forward and decide
 Elective estate: essentially, the entire estate – includes anything in which you had the power to take
money out of or give to a beneficiary.
 Note difference w/ intestate code: if there is no will, then the spouse is entitled to either 50%
or 100% of the PROBATE estate, i.e. that part of the estate that has no other rules guiding
how it will transferred after death. Could be small part of estate, whereas elective estate is
mostly everything.
 Elective estate: includes everything that is in the probate estate, TE property (even though
this passes outside or probate due to title), joint checking accounts (if owned by 2, we include
half, owned by 3, include 1/3), any revocable trust, and any transfers made within one year of
death is clawed back
 May exclude the homestead
 Essentially, anything that decedent controlled during life?
 Look-back period: anything you transfer within a year of your death comes back, gets clawed back,
(to stymy attempts at circumventing the law with deathbed transfers of assets), unless
 Adequate consideration was received
 The surviving spouse gave written consent, approved of death bed transfers or donations to
charities
 Not included in Elective Estate
 Community property also not included (not going to give the spouse half plus 30% of your
half)
 Pre-marital transfers – things that were given away before spouse had right to elective share
▫ See this a lot when the marriage is new and hubby dies and he had given assets away
before the marriage  cannot be clawed back
 Again, any death bed transfers approved by wife OR money given to charities approved
 Assets that we have unique valuations for
 Homestead – we know the wife gets all of it, so we may or we not include it in the elective
estate
 Life insurance policy – it’s a unique asset because there are different types
▫ Term policy
▫ Whole life – where you build up savings amt as you pay in – so there is a cash
surrender value that the insurance co gives you back
▫ So with life insurance, we don’t value the death benefit or death value, because
technically the decedent didn’t have control over the policy during life, so the spouse
only gets the surrender value
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
Some people think this isn’t fair, bc the hubby could have named the wife as
the beneficiary and she would’ve gotten more if he did; but the argument is:
well he didn’t lol

o
The Spouse Cleans UP!
 Surviving spouse gets all of the money added up from all of the spousal rights and things that
aren’t going through probate – PLUS 30% of everything that does go through probate
▫ So when its’ all added up, the spouse often gets around 46% of the entire estate! It
could be tons of money! So we have really taken away the decedent’s testamentary
freedom here  this is more than enough for a wife to be kept off the streets
 Elective share trusts: in FL, where the spouse doesn’t get the elective share outright but can leave
the elective share to the spouse in trust form, subject to some rules.
 This allows the decedent to control what is left of the spouses share after she is goneallows a decedent to retain testamentary freedom and can decide where residual goes
▫ So the betch doesn’t remarry and give everything to the pool boy
 Other benefits: makes the surviving spouse less susceptible to predators and creditors
 Can be conditional: “I leave x, y, and z to spouse, but if they choose the elective share then
they get the elective share trust.”
 Three Different Types of Elective Share Trusts
▫ (1) Income-only trust:
 The spouse can, during his or her lifetime, take all of the income off of the
trust, but nothing else
 Only get 50¢ on the dollar, so you have to contribute twice as much (that’s
the price that comes with control). Not very generous
▫ (2) Income only + discretionary access to principal for HEMS (Health, education,
maintenance, and support):
 80¢ on the dollar
 This is the need-based option – I want to make sure they are fully taken care
of, but my spouse got creditor probs or a spending prob, so I have to cut her
off LOL
▫ (3) Income, Access to Principal, and Power of Appointment (deciding who gets
what’s left upon their death):
 Full credit; this option is usually chosen if the surviving spouse is
handicapped in some way, not good with money, or has lots of creditors.
 So you are giving wifey everything, but just want to protect her from
creditors and from herself- so decedent keeps some control during her life so
that she doesn’t spend all the money, but allows POA
 Consider idea of whether this goes too far, and whether it goes too against testamentary intent
(3) Family Allowance: An allowance that your family (spouse or lineal descendants that the decedent was
obligated to support, or was supporting) can petition court for in order to get support while estate is being
administered
 Basically just money to pay the bills while spouse doesn’t have access to her inheritance
 Is not need-based, just look to whether one is entitled to it; and there is no time limit on when it can
be petitioned for  any time during the administration of the estate
 Only statutory and is in favor of the whole family  for spouse and child while money tied up
 The question that we are trying to answer is how much the family needs – the family allowance for
the entire probate period is a mx of $18k
 So even if the administration of the estate lasts for an entire year, and even if the estate is
huge, the spouse and kids only get up to $18k
 Court has flexibility with how to divide it up (like $1,000 per month) or to just give a lump sum
 Who is entitled to it
 Whether you are someone that the decedent was obligated to support – and the dad doesn’t
even have to have been supporting during his life but his estate will still be
 Note: that this is in addition to the homestead, elective share, and exempt property, so it all adds up!
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o
(4) Exempt Property: We think property is so critical for the home that we preserve it for the family.
Constitutional (first $1000) and statutory (adds $20k) protection for certain fundamental family
assets/property such as the vehicles kept for regular use (irrespective of value, up to 2), other furnishings,
furniture, and things around the home.
 Total of $21k of the stuff that makes a house a home is protected from creditors
 And what is this and how? The wife and children basically go through the house and decide
what they want until they reach 21k, and then creditors can’t touch this stuff
▫ Usually kitchen appliances and heirlooms
 In addition to the $21k we add two family cars, tuition plans/academic savings and retirement
accounts that are exempt personal property
 Who gets? Priority goes to spouse; if there is none, or they don’t request the property, children (minor
or adult) may. And if the spouse doesn’t get it or take it, then it goes to the children to share in the
allotted exemption price equally
 Must file affirmative request within 4 months of receiving a notice of administration.
 If the will disposes of the asset in some other way, then it may not be claimed under this provision. It
protects you from creditors, not disinheritance.
(5) Pretermitted spouse or child: where someone is forgotten in a will. This only comes up in testate estates,
where there is a will that is outdated and didn’t account for the new spouse or child
 We give the children and the spouse the benefit of the death and help to try and factor them in
 So we look to the will, and if it’s clear by the will that the spouse or child were accidentally excluded,
then we give them a pretermitted spouse or child share but if it the will is in contemplation of
inheritance by a future spouse or child, then the “forgotten” were truly intentionally disinherited
 And it is really the forgotten that we are worried about
 Courts look at will for any evidence that the omission was deliberate. Questions to ask include:
 Was the decedent married when they drafted the will?
▫ If they were already married when they wrote the will, there can be no pretermitted
spouse. Because such an omission is clearly intentional
 Was there any waiver by the surviving spouse, pre- or post-nuptial?
 If the will predated the marriage, still inquire into whether the decedent anticipated the
marriage, and whether they deliberately wished to limit the spouse’s inheritance.
▫ Often times, a husband will just forget to update his will  when this happens, these
people are entitled to certain statutory protections under the law
 Gainer: While dating, older couple create wills referring to each other as boyfriend/girlfriend; neglect
to change wills after marriage. Court finds that the surviving spouse was entitled to the pretermitted
spouse share, despite the will leaving the asset to the deceased’s “boyfriend.”
 It’s easy when someone isn’t even mentioned in any capacity in a will, but it’s harder when
someone may have been contemplated
 “Fiance” is a contemplation of marriage, using words that help show the intent to marry help
to avoid the pretermitted spouse’s share
 The pivotal question that the court looks at, is what were you contemplating at the time that you gave
John those joint accounts  or were you saying that this is all John gets now bc he won’t marry me
 SO if it is clear that the will is not giving to someone as a spouse, or a less legal relationship,
they aren’t pretermitted
 What happens if you Are a Pretermitted Spouse?
 If no clear sign to disinherit, the court gives individual share of probate estate that they would
have if decedent died intestate. We give the intestate share
 For spouse, either 50% or 100%  so you, as the pretermitted spouse could completely
override the will
 Child gets the same option – the intestate share of the estate
▫ Where there’s a surviving spouse, the intestate share that the child receives would be
very little
 And then whatever is left, after the pretermitted share is given the spouse and child, your will
controls for the rest of your estate
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
+
Require clear factual evidence of intent to disinherit or include, but err on side of giving
pretermitted share.
 For children, there are several rules:
 Must be born after the will was created – because if you were born before the will was
created it seems fairly clear that the child was intentionally disinherited
▫ Butters says she drafts wills all the time for men in case they have random children
out there that come forward when he dies
 The omission must be unintentional
▫ When looking at the will, if the existing children didn’t receive very much in the will
either, then it’s safe to assume that the 3rd, 4th, etc child that comes along also won’t
be given much
 If these are met, look for evidence of what the testator would’ve wanted
▫ If they gave other children little or nothing in favor of surviving spouse, then the
same will apply for the pretermitted child.
▫ Where it is clear the child was contemplated or would have been disinherited
anyway, they get no intestate share (which may have been nothing anyway, due to
spouse getting 100%).
 Remember, the spouse will have 6 months to decide whether to take the elective share or the
pretermitted estate  wife has to decide which one will get her more money. So she is not on the
clock with the pretermitted share, but she is with the elective share, which pushes decision along
o Waiving: you don’t have to take these benefits; all are optional besides the homestead. Each of these rights is
waivable, but must comply with statute. Pre-nups and Post-nups: and there are different requirements if you
file for these after marriage or before marriage
 After marriage/post-nup, there are stricter requirements because the spouse has acquired legal rights
 Must be in writing
 Have 2 witnesses
 Financial disclosure
▫ Not required for pre-nuptial agreements, since the person waiving has no rights at
that time.
 Even false disclosures don’t invalidate pre-nupts.
▫ Full and fair disclosure required for post-nuptial agreements, so that they know
exactly what they are giving up.  must show every debt and liability, your income,
tax returns: needs to understand the full financial picture
 Before Marriage/pre-nup
 Must also be in writing and have two witnesses; no financial disclosure
 The spouse could literally outright lie before marriage
 Under FL law, both have to be in writing and have to have two witnesses
 Waivers can be partial, or conditional.
 Can cherry pick everything: Keep the elective share but waive the exempt property
 Conditional: “I waive everything up to our 10th year of marriage, but once we get passed
that, I want all my statutory rights” OR “I waive my rights provided you don’t cheat”
 Butters: you can dream up whatever you want, whatever the couple thinks is fair
 Fairness of the waiver is irrelevant, so long as all required disclosures took place. No adequate
consideration is required for the waiver. The honor of marriage is enough in exchange for the prenup
o Community property states: the husband and wife are considered a single economic unit, and each has an
ownership interest in the assets of the other, regardless of how the property may actually be titled.
 Each spouse is considered to own half of an asset.
Homestead Protections
o Rather unique to Florida, and FL is pretty strict. Homestead is creditor exempt; we don’t want you left
homeless because you have debt, so even while you’re alive we won’t kick you out. And homestead is
conveyance restricted
o We take away one’s testamentary freedom when it comes to the home bc it’s so important
o 3 different types of Protections for the Homestead
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o
o
o
(1) Homestead exemption for property taxes: 3% cap on how much the property taxes on your
homestead can rise each year.
 Designed to help people stay in their homes, despite potential increases in real estate value (and
thus tax owed).  two little old ladies who bought homes for 100k but pay taxes at a value of a
million now that the value of land has gone up
 Passes on to spouse upon death.
 If inherited by someone other than spouse, then the protection is lost and the tax is brought up to
align with the actual value of the property.
 These “Save Our Homes” provisions also allow owner to knock some assessed value off the
home for purposes of tax determination.
 Two components (designed to help you stay in your home)
 (1) it reduces the value of your house by $50k a year; $50k exemption basically
 (2) no matter what is going on, taxes can only go up by 3% a year
 However, when the property gets transferred, when the title is transferred, the tax on the house
and property is reassessed  so these protections only help the one family that started out at the
low price and then had to start paying taxes beyond their means based on the purchase price
(2) Homestead protection from creditors: regardless of how much your home is worth, creditors cannot
take it  so long as you are within the proper acreage
 The only obvious exception is if you’ve granted the creditors a right to seize your loan, as
in a mortgage or a lien, but other outside creditors cannot come and take your home
 You can waive this right.
 When you die, the home is also creditor exempt in the hands of the beneficiaries, so long as they
are one of your natural heirs (on the table of consanguinity).
 The home can be taken from a beneficiary who is NOT one of your heirs
 Even if the homestead is protected from the decedent’s creditors, it is NOT protected from
the heir’s/beneficiary’s creditors!
o However, the beneficiary can choose to turn it into their own homestead and
indeed get the creditor protections; but not if they just keep it as a vacation home
 Snyder v. Davis: Grandfather left homestead to granddaughter. Decedent’s creditors could
not touch asset, b/c she was an heir on the table. Doesn’t have to be the closest heir, just
any heir.
 Warburton: Testator left $150k to nephew in will, but only had $10k; left home to his
brothers. Nephew could not force sale of the home in order to get his inheritance, absent
some evidence in will that that was the intent of the testator: aka, the testator didn’t
indicate that in case he was short money, the home could be sold for nephew
o So you cannot seize the home and give it to someone else unless there is an
explicit demand to sell and override the constitutional protection
 Remember: you can override the homestead protections if you don’t have a spouse and if you
don’t have minor children
(3) Homestead protection for purpose of descent and devise; who you can give home to
 Provisions designed to prevent you from rendering your spouse and minor children homeless.
Restrictions exist in three situations:
 (1) Married, no minor children: You must give your spouse the homestead. It can be
outright (fee simple). If you do not, then they are given life estate by law.
 (2) Married, minor children: Testator can’t do anything with the house. Law dictates how
property will flow. Spouse gets life estate and minor/adult children divide the remainder
interest.
o If spouse wants to sell/liquidate the house, must agree with children because they
all have an interest in the property.
o Have started giving spouse option of taking 50% of the home in tenancy in
common with the children.
 Can allow them to go through partitioning process (sale of home,
division of proceeds).
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o
+
+
If for some reason you die with kids from multiple marriages (and married), step
mom gets the home for life and kids from both marriages get the remainder 
wife essentially becomes a joint owner with her minor children or the children of
her dead spouse from his first marriage
 (3) Unmarried, minor children (divorced or out of wedlock): Children (both minor and
adult) get the home, divided equally among them.
o You can’t put your house in trust either
 (4) If unmarried and without children, then free to do as you wish with the home.
 Florida has passed legislation to give mom an out; if she says, I don’t want to be co-owner with
my kids, I just wanted to cash out
 Election that only the spouse can take and say that she doesn’t want a life estate  so
spouse can opt to just sell the house and take half of the proceeds
 Spouse only has 6 months to file this election from the date of death to decide if she wants
to liquidate and take half OR take the life estate
 We usually see this women who are sick or older and don’t want a huge house  Butters
pointed out in such scenarios, Granny may get a windfall, but the point of the homestead
is to keep the young mom and her babies safe; worth the few windfalls for this protection
overall
o Homestead size limits in Florida
 If within municipality, then home cannot be over ½ acre of land.
 If outside a municipality, the lot size can be 160 acres.
 Barn, shed, pool – if this is all within the allotted acreage and you use as part of your
home, it is homestead
 Any part of property used for commercial use is not considered part of the homestead 
such as a cattle business; decedent can do whatever they want with commercial operation
in the back. Butters also gave example of little cottage that is rented out: not homestead
o Homestead protections are automatic: said to “drop like a rock”
 Upon your death, house passes immediately, even without recording a deed.
 All the other protections require the beneficiary to opt in.
The Probate Process Brief Overview
o To help understand the process of the elective share
o Probate covers everything that otherwise wasn’t distributed through other instruments: trusts, bank
accounts with named beneficiaries, life insurance beneficiaries
 So the probate court only deals with a small slice of the estate
o In terms of the Elective share, 30% of the probate estate is probably peanuts, SO when we say 30%
elective share, we mean 30% of everything the decedent owns and we claw back anything else that has
already been distributed through other instruments besides probate
o There is always a personal representative of each estate
 He handles everything; he sends notices out
 Notices to creditors that say, come forward, you’ve got 90 days to tell use what it is we
owe you and if you don’t come forward, we’re gonna give your shit away
 Spouses and heirs get a notice of administration
 They have to come forward: time limits on elective shares on exempt property; no limit on
the homestead (and don’t have to elect) or family allowance (but do have to elect)
Challenges to Wills (fraud, duress, mistake)
o Remember, we don’t challenge wills and trusts based on a lack of consideration as these gifts are
gratuitous!
o Cannot challenge a will until after someone has died, because only then are the documents assuredly in
their final form.
o In terrorem clause: penalizing someone for bringing a will contest. Forbidden in FL (though a
savvy/sneaky practitioner might do so anyway to dissuade the ignorant and unadvised).
 Clause that says if you challenge my will and you lose, you get nothing – FL doesn’t like because
we find these distasteful – want to encourage people to come forward with any info about
validity/invalidity of the will
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o
o
o
o
Partial Invalidity (732.1565)
 Statute that says, look, we understand that sometimes people will influence parts of the will but
they don’t necessarily have the motivation to influence all of it  so we invalidate the parts of he
will that are the product of fraud, but keep the rest. Keep the good, toss the bad
 Not an all or nothing proposition  but only for fraud, undue influence, mistake. Capacity is an
all or nothing argument
 brings as much of testator’s wishes as the will has & strike through bad parts
 I give 5K to St Jude
 I give jewelry to sister
 Rest/residue/remainder to x, y, and z
o if x is the undue influencer, we must guess but for influence, would r or q get
someone? if they are all mom’s kids, this is harder to do
o only works in undue fraud cases, not capacity  you cannot have capacity to
give to st. jude, but have capcity to give to sister.
Burden Shifting
 Presumption of capacity that someone is capable of executing their last W&T
 We give due deference to the testator in burdens of proof
 Assume document is valid until proven invalid proponent of will merely needs to
present the will to the court and show that it was properly executed (2 witnesses, etc.)
 Then burden shifts to challenger  burden to establish why it should be overturned
Attorney fee provisions
 In will contests and trust contests, where you’re challenging testamentary documents, our statutes
have attorneys fees provisions that allow the prevailing party to receive reimbursements of their
fees
 If you challenge a will and win, you will be made whole: you will get your fees back PLUS your
testamentary gift  incentivizes you to bring your claim or if you have a weak claim, it could
cause you to drop your claim or concede
(1) Lack of capacity: Two types of capacity are required in order to make a gratuitous transfer
 (1) Legal capacity: must be 18, or an emancipated minor.
 Note – no one can sign a will for anyone else in Florida
 (2) Mental capacity (testamentary capacity): must be of “sound mind;” extremely low threshold
of mental capacity/functioning, lol. Can be unintelligent or eccentric, but your testamentary
freedom will be respected. Crazy people with schizophrenia, 95 year-old-women, etc., can even
create a will  you just need a “sound mind”
o  Meaning you merely need to under stand the consequences of you actions
 The burden of showing lack of mental capacity falls on the challenger; we presume
everyone is sane and has testamentary capacity.
 3 part test for “sound mind”
o 1. Generally know the nature/state of your assets
 Generally know what you have and what it’s worth
o 2. Generally know the natural objects of your bounty (i.e. who your heirs are)
 Like you should know that you have two children and a wife, lol
 Are you delusional in thinking that you have 2 kids when you have 4?
 Point: we want conscious choices if one is disinheriting a spouse/child
o 3. Understand how the will is going to affect the inheritance scheme.
 Understand how your will is disposing of your assets
 All that is needed in order for a will to be valid is a “lucid interval” – as long as you have
all 3 functions when you sign, it is valid, irrespective of your earlier, later, or typical
mental state.
o Even people with mental disorders, who are depressed and suicidal are good
because they can have “good days” or “lucid intervals”
o But see Marshall: Daughter who was left $5 was successfully able to argue that
father was mentally unsound long before and after the signing, and so must have
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been at the time. Had to show by greater weight of the evidence, and court sided
with her.
 High burden, but people can show, based on all of their crazy days
before and after signing, the odds are, he was crazy while signing
 Methods of protecting client/combating claims if they might be challenged: psych.
evaluation immediately prior and after signing; videotape the signing and record meetings
with clients; spend time with witnesses; choose intelligent and observant witnesses who
can communicate effectively.
o As a lawyer it is unethical to let someone you believe is mentally unsound sign a
will  but Butters said that lawyers are not doctors and therefore a mental
evaluation need not be done, but just commonsense – or is the mental impairment
obvious?
 Also you can always undo a will if someone if proven to be mental but
you can’t undo dying intestate
o But Butters says she prepares ahead of time with these methods when there are
multiple wives involved or a significant gift was given such that other family
members will be upset. lol “paper da file”
 Insane delusions: can fail sound mind test even if you’d otherwise pass it if you have
beliefs so unfounded in reality that your decision making is being affected. Two elements:
o Irrational belief not founded in logic or fact,
o That affects your last will & testament.
 OCD/anxiety don’t make people mentally incompetent  these are just irrationalities with
specific parts of one’s life. Alcoholic is a tough one; but good days!
 Note with capacity, the challenges are all or nothing! Either we toss the will or we keep it and use
 With all other challenges, we carve out the parts that we think may be from deception and
then keep the parts that aren’t
o (2) Undue influence: when a will reflects the will of the influencer rather than the free will of the
testator. Not all influences are undue - some influence is fine, because we all influence each other.
Somewhat hazy, and most litigated way we challenge wills. Factual, case by case inquiry
 Really just looking to see if something is not what the testator would’ve wanted
 3 factors (not elements; don’t need all three to win, but to shift burden):
 (1) Influencer is beneficiary under the will
 This can be relative, depending on size of the estate.
o Value of estate; value in hands of beneficiary
o Because $50k/10mil might not seem like a lot; but may be to beneficiary
 Doesn’t have to directly benefit the influencer (could be their child), indirect
 Getting oneself appointed to a fiduciary position does not qualify, since services have to
be rendered in order to get the reward.
o Note: a lawyer may write themselves into a document as a fiduciary. Not the
same limitation as with gifts/devises. Fiduciary does not equal a beneficiary
 (2) Influencer had a confidential relationship with the testator (one built on trust, and usually
entailing some reliance upon the influencer’s advice).
 Have to look at the facts of each situation – some cases are clear: lawyers, clergy, CPAs,
financial advisors. Others, less so: home health care aide, nurse.
 Relationship of trust and reliance on someone is red flag; never a spouse!
Note the above two are generally typical of anyone named in a will; you don’t give to strangers!
 (3) Influencer is active in procuring the will. (generally factor that wins/loses cases)  most
heavily litigated aspect of active
 Pre-execution red flags: did the influencer push to have the will made, contact/choose the
attorney, direct attorney, transport the testator to the signing, act as a witness to will, sit in
on meetings?
 Post-execution red flags: did the influencer keep the will secret, keep possession of it (so
that testator couldn’t change/destroy it), lie about its contents, try and protect it? lol
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 Look at the circumstances and weigh whether the actions were normal/natural.
o who made the appt? who was present in the room? why were they present in the
room??
 In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971)  Presumption of Undue
Influence
• Carpenter Presumption of Undue Influence — In the case of In re Estate of Carpenter,
253 So. 2d 697 (Fla. 1971), the Florida Supreme Court addressed the issue of proving
undue influence, set forth elements that give rise to a presumption of undue influence, and
discussed the facts required to prove each element. The Carpenter presumption has three
elements:
 1) The influencing party was a substantial beneficiary of the transaction;
 2) a confidential relationship existed between the influencing party and
the acting party; and
 confidential relationship – daughter is in inherent conf.
relationship w/ mother. but, in addition, daughter was trusted
care giver.
 3) the influencing party was active in procuring the transaction.15
o As the Carpenter court acknowledged, subsequent decisions have found the
existence of substantial beneficiary,16 confidential relationship,17 and active
procurement,18 based upon a broad variety of circumstances.
o Burden falls on plaintiff to demonstrate a reasonable explanation

o
Evidentiary burden:
 (1) The proponent of the will only has to prove proper execution according to FL law – we
presume capacity; and we presume the will is valid if it was executed properly.
 (2) Burden shifts: if opponent can prove the 3 factors, undue influence is presumed
 (3) Burden shifts back: and it becomes the proponent’s burden to provide a reasonable
explanation for why the factors were present.
o This burden shift never occurs when a spouse is alleged to be the influencer
 Much higher burden – need to show much greater influence bc the
spouse is usually in the will anyways
o You can prove influence without all 3 factors, you just get no favorable burden
shift.
 Case: where wife was allowed to say: “I don’t want to stay in this marriage if you exclude
my child from your will”  legal system recognizes the normal issues and requests
between spouses
 Carpenter case: volley back and forth is now statutory but came from Carpenter. Where
Mrs. Carpenter creates a last will and testament four days before she dies, and it leaves
everything to her daughter Mary, cutting out all of the sons
o Will was challenged by two/three sons claimed Mary exerted undue influence
o (1) Mary was sub beneficiary; (2) Mary was daughter/caretaker, very close; (3)
had to prove Mary was active in procuring will: she called the attorney, dictated
the terms of the will, “she wants it to say this,” told attny that time was of the
essence, Mary was part of meeting, and kept secret from brothers
o So brothers established the presumption bc they met all three factors
o So burden back to Mary: explain yoself, gurl: “the boys never came to see mom,
they didn’t care about her, this is what mom wanted and yes I helped her set up
her will only because mom did know where to go, etc. I also didn’t keep the will,
mom did, and finally, the lawyer had private time to discuss the will with mom”
o Court believed Mary and then had to weigh the factors to determine if this was
really Mom’s intent or Mary’s  spouse will never have to do this!
(3) Fraud: just like any other challenge to a contract. Conscious manipulation of someone’s thinking or
actions in order to obtain a certain result, such that the will is now being influenced by the manipulation,
OR the will is not being corrected due to the manipulation
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
o
o
Often times, the fraud is in confidence, because its more likely to be believed, and often times,
there is a financial interest of the fraud doer
 This is usually used or plead when we fall short of something else
 5 elements, to prove (especially after testator’s death):
 False representation
 Knowing the statement was false
 Made with the intent to induce reliance upon the statement
 Which the testator does rely upon
 Which causes the testator to act upon that reliance to make changes/fail to correct
ii.
Butters definition: must be conscious and intending to deceive; the lie must be relied on; and this
reliance has to actually cause the testator to make changes/or fail to make changes to will
 Remedies: Partial invalidity (strike any fraudulently induced portions), complete invalidity
(might default to prior will, send the estate into probate, or have court impose some other
equitable solution).
 More options for what can be done bc sometimes the fraud caused you not to change your
will when you wanted to  so throwing out will doesn’t get us the result we want
 Lanthem case: good illustration of why fraud requires better remedies than just the standard toss
out. Cult leader and the conspiracy: woman cut her family out and put in cult leader – but at some
point she wanted to make a new will that reflected her true intent and cut out cult leader  so the
problem here is that tossing out will got money to intestate heirs but not to others she wished to
give to.
 Solution where fraud caused beneficiaries not to included: (1) constructive trust – where
we literally construct a trust over the inheritance that Ms. Lyon wanted to give for the
intended beneficiaries; we literally construct a trust around the money give to the intestate
successors (bc we threw out will) and we say: you must give this money to the intended
beneficiaries – concern would be harming he innocent intestate successors; (2) tortious
interference – but for your lies or interference, I would have received this gift and I am
therefore damaged – cause of action founded in tort, not equity. Need 1. Expectation of a
gift, 2. Intentional interference, 3. Tortious conduct (fraud, duress, undue influence),
intentional interference; 4. Must be causation (but for your actions [the interference], there
would have been that inheritance); 5. There must be a showing of injury [damages 
calculating damages . Last resort in probate law. (3) A secret trust – products of fraud for
most part;
The tort is created to remedy for bad behavior. Tortious interference within expectancy.
Therefore, you must prove that you had an expectancy in the first place (i.e., we saw a drafted
will that would have been signed). #2 Intentional interference.
(4) Duress: arm-twisting, threats: where the testator is under such stressful circumstances that the will is
really just the product of that stress, and not his or her own intentions
 their will does not reflect their wishes  In a will context, generally focused on a third party
making that duress (as opposed to external stressors in normal duress situations). It’s not a “life or
death” will.
 Must rise to the level that duress caused the will to look the way that it looks
 A level that causes the will to be created in a manner that it otherwise would not look like
o “If I don’t put this person in my will, she may stop taking me to the doctor to
refill my prescriptions” 
 If caused by life event, then proper way to challenge would be through mental capacity of the
testator  so unable to see things as a normal person would or think clearly
 Have to look at whether there was time and opportunity to change the will and correct the
situation. Did the person try and fix their will, or did they leave, implying it is what they wanted?
(5) Mistake: historically, courts were disinclined to intervene to fix mistakes. Court used to say that we
will either strike out a mistake or we can toss out parks due to fraud or duress, but we will not fix a
mistake and go back and say we now what a person really intended
 Two options: (1) Strike the mistake, toss that provision out or (2) Try and reform it (change the
words to be what you wanted it to be) – reformation
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
o
Generally we won’t fix even if it is clear what you wanted. Courts don’t want to engage in this
speculation.
 Recent 2011 legislation allows us to fix a mistake in a will if there was clear & convincing
evidence that there was in fact a mistake
 We can strike out Billy and put Bobby; we can strike out $10 and put $10k, etc.
 And the result of this is that the likelihood of being sued for malpractice can go down
o So now if a lawyer makes a drafting mistake, we can go back after the fact when
someone has died and fix the will
 But note, we cannot completely add people who were left out! We can correct a name
(again if you put Billy but meant Bobby)
o the scenario that we feared was “mom promised me the beach house but it’s not
reflected here.”  was mom just trying to get kid off his back
 Floodgates: courts were worried that if we started fixing wills, it would open floodgates of
allowing people to second guess a last W&T by alleging mistake. Butters said the floodgates
didn’t open because clear and convincing evidence is a fairly high burden – people just trying to
allege mistake bc they are upset with a will- their claims haven’t been valid
We use all of these different types of challenges to ensure that the will or the trust accurately reflects the
testator’s intent. If we are convinced that the will is not the testator’s will, or a reflection of their intent
(what we strive for) then we have remedies
+ Will Drafting
o
o
Definition of a will: any document created with intent to dispose of your assets at death.
 No formal requirements for form – can be structured any number of ways, or written on cocktail
napkin
 Form requirements for execution
Parts of a will
 Identification: “This is the last will and testament of X…”
 Usually followed by information identifying spouse and children, since testamentary
capacity requires you know natural objects of your bounty; also useful for pretermitted
person claims. Tell the world who you are, where you reside at, who family is
 Earmarked or outright gifts: ones that specify particular gifts for specific people. Bequests of
tangible stuff. 3 general types:
 Specific: a specific, identifiable, tangible asset: china, jewelry, a house
o Specific distinctions in gifts are important when we start talking about the
payment devises if one or more of those assets is missing; so that we can discuss
back up plans; ex: if your house burns down
 General: cash, from a nonspecific source
 Demonstrative: cash from a specific source
o “Give my daughter $5k from my Wells Fargo account
o Gifts of general sums of money but that you want to be paid from a specific
location
 Residuary clause: what disposes of everything that you didn’t specifically dole out. Sometimes
can be majority of the estate. “The rest residue or remainder, give to these persons, property both
real and personal”
 This is a catch all – but are critical to make sure we don’t have partial intestacy
 FL statutes assume that residuary beneficiaries are recipients of last resort, of lower
priority than the specific devisees (though this may not actually be the case).
o Sometimes the residuary beneficiaries are also specific beneficiaries
 If there is no residuary clause, then the leftover assets will be distributed via intestacy
laws, unless there is a prior unrevoked will with a valid residuary clause.
 Appointment of personal representative or executor (fiduciary), along with giving them various
powers and duties to make the distribution happen.
 The provision that we inset to prevent any pretermitted spouse or child claims
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o
o
 “Except to the extent that I’ve given away the property above, I have intentionally
disinherited everyone else”  these are boilerplate and almost malpractice to not include
 Could be a trust for a minor child clause
 There could be a definitions sections
 General FORMALITIES: testator’s signature (at the end), 2 prescribing witnesses who will sign,
and notary seal at the bottom
 Downside of formalities: can sometimes be too much and hurts testamentary intent as it
can prevent people from creating wills: don’t have time before they go out of town, etc
FLORIDA is a strict construction state, which means we mean exactly what our statute reads
 Most other states aren’t as strict; Butters says sometimes we do lean more towards harmless error,
just depending on the circumstances
Strict compliance with execution requirements is required to ensure that the testator’s true will is being
enforced, and they aren’t held to statements that may have been in jest, deceptive, or designed merely to
placate. No such thing as “substantial compliance” in FL.
 As a general rule, FL doesn’t allow oral or holographic wills
 FL does not allow oral wills under any circumstances, ever
o But some states do (audio, video or even just a witness)
 Holographic wills: We see these a lot with socio-economic issues. Exception to general
rule: We only allow holographic (i.e. handwritten) wills if they have the two witnesses
required under FL law
o Exception: we still give full faith and credit to holographic wills that come from
other states  FL will honor those rules but seems strange that we don’t allow
this for residents but we do for non
o We don’t like to not have the formalities, bc who knows if the guy had a gun
pointed to his head as he was writing  50% of states allow
o Mutter case: where woman got fill in blank will from office depo and filled in
substantial parts (who gets what) with her handwriting. She got signed in
presence of notary and one witness (wrong), so the only way to probate it would
be as a holographic will. Although only witnesses by two people, the court
allowed bc it was in testator’s own handwriting  the substantive terms/gifts
were in her own writing, which is what matters. Argument: if we are going to
allow these wills to be sold, we ought to honor them. Counter, but if we got rid
of the form terms w/just testator’s handwriting, it wouldn’t be enough to clearly
show the testator’s wishes. Ct. disagreed, thought that was too far
 Publication is not required in FL – the witnesses do not have to know exactly what they are
signing though, and so lawyers do it anyways to protect themselves and their clients
 Must sign at end.
 This isn’t defined, however, and there may be a difference between the
literal/sequential/logical ends.
o On test argue all aspects
 Bradley Case: A woman got a trifold will and signed on the front of the trifold. This was
litigated because it was technically the front.  The end is a question of fact for the tryer
of fact - where did the testator sign, was there room to sign only on the second page. End
= the logical or sequential end, not the literal end.
 Generally should sign at the logical or sequential end, but where this is a factual question
for each document.
 No notary is required.
 Allan v. Dalk: Man failed to sign will due to mistake – he signed his wife’s and she signed
his; UPC would conduct harmless error test, but in FL strict compliance is required (ct.
said H & W didn’t have the proper mental capacity to sign each other’s will; bc it wasn’t
their will!) (harsh result  we see FL rethinking strict constructionism after cases like
this) But see Bradley case: where Ms. Bradley signed the fill in the blank part of the will
on the cover page & not at the bottom  but if you looked at the will where it wasn’t
folded, it looked like the logical place to sign. Court said this was a question for the trier
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



or fact based on circumstances: what is the logical end of the will. Ct. found it was ok for
her to sign where she did  and this is more of a substantial compliance case (closest we
have to harmless error)
o On the Bar: should argue that the end is whatever you want it to be – or argue the
possibilities of what “the end” really means within the big picture
 There is an exception for testators who cannot sign to allow someone to sign for them…
like people without arms perhaps
There must be two witnesses, who must actually witness the signing and then they must also
sign in the presence of testator and each other.
 Best to have witnesses who are observant, capable and credible in case the will is
challenged later.
 Presence requirement: FL has “line of sight” – must able to observe the person signing.
o We require active witnesses in Florida; you must be actively witnessing not just
sitting there and they must all be together, partaking in this event
 Different pen types can even be an indication that the witnesses weren’t
all present
o Note: a witness cannot leave the room during the process
o Brought up the blind witness point  though they can’t see, are they any less
aware than someone in a room who is not in the line of sight of testator?
o But if FL, must be in line of site
o Weber case: Mr. Weber not feeling well and asked his neighbor to drive him to
the hospital, and oddly, he stops at the bank to sign his will on way to ER. So he
stops at bank, pulls up at curb runs in and signs his will, but due to the geography
of the window ledge where bank teller was sitting, he did not technically witness
the will being signed.  so must be in direct line of sight
o Argue “conscious presence” as “substantial presence” but find ultimately
insufficient for FL law
 Does not matter if the witness is interested or not, though it could impact their credibility
if they are required to testify later. We think there are other protections for this problem,
such as partial invalidity of gifts procured under undue influence
 Note: if this process is messed up, the will we have to be thrown out: not a simple mistake
Self-proof affidavit: an affidavit that the testator and witnesses sign; notarized and under oath,
attesting that the statutory requirements regarding will presence/signing were met.
 Accepted as true by court, so streamlines meeting burden of proof to show proper
execution of will; gives rebuttable presumption of proper execution.
 Would always want one of these; only skip if no time to get a notary.
o But not that this doesn’t have to be signed contemporaneously with the signing of
a will  can do it later at another time, but annoying
 Even if someone forgot to sign the will, having one of these could save your ass  and
even though the affidavit is technically a lie because not everyone signed (as is attested to
in affidavit), it still saves your ass if attached to will & signed contemporaneously with
will– see Charry Case
 Note that while you don’t need notary to sign will, you will often have one present just so
that you can administer the oath of the self-proof affidavit
Timing mechanism variation
 Some states used to require that wills be signed within a certain amount of days (usually
30 days) from someone’s death  so we can better spot wills made under panic or duress,
etc. We don’t want people influenced by doom and gloom  no longer have.
Wills from other jurisdictions: we will provide full faith and credit so long as the testator
complied with the laws of the other jurisdiction.
 Exceptions: oral wills and unsigned holographic wills
 We honor any wills of military members that meet military requirements.
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
+
UPC: a little more relaxed. Witnesses have no presence requirement – the two don’t have to be
there while the testator signs  but this is a problem because it could allow an undue influencer
to more easily get away with “arm-twisting.” So if this is going down in FL, one of the witnesses
saw! Most states are UPC states, but FL has enhanced requirements to better protect testator
Will Interpretation
o 3 guiding principles when we are interpreting a will:
 Guided by testator’s intent – what he/she actually wanted
 Look within 4 corners of document, if possible
 We must first have some ambiguity in the doc before we ever let in any external evidence
 Avoid intestate if at all possible, we never assume intestacy
 Never assume testator wanted intestate statute; interpret will to give desires rather than
intestate code – we always construe a will against the intestate code kicking in
o Four Doctrines of Will Construction
1. Integration: Where you are trying to integrate some external document or information into your will –
you are physically attaching docs to a will without witnesses
 The process or method of integrating all of the pages and attachments together so that they can be
read as one document.
 Filling in the blanks and adding all of the external documents – just like with pleadings, where we
attach exhibits that can be referenced to be integrated into one part of the complaint
 They don’t necessarily need to be bound together, so long as the language that references all of
these documents has some cohesion
 Goal: to make the will make cohesive sense – random documents shoved in with will has not
been effectively integrated and it may not be cohesive
2. Republication by codicil: a codicil is an amendment to a will, and can reaffirm the rest of the will.
 You are not replacing an entire will, but just portions
 Codicils can also be used just to reaffirm a will, which can be useful if a marriage has occurred,
child has been born, etc.
 “I strike article 1, and in all other respects, I reconfirm that the rest of my will is my last
will and testament, and my testamentary intent”  this helps with challenges because
reconfirming demonstrates validity. Adds layers of complexity to the litigation. Person
that challenges must demonstrate several levels of invalidity (i.e., incapacity in 2021 will,
incapacity in 2020 will, and 2019 will to get intestate default.)
 But the original will continues to control besides the amendment  Butters says she does
this a lot if she thinks that a will contest is coming
o So if she is worried a capacity challenge is coming, the person challenging has to
challenge multiple republications/affirmations of wills!
 It can also we used to show that a man specifically contemplated a wife or child (after
birth and marriage) and didn’t want them in the will, etc
 Codicils don’t fix any problems existing with the original will (lack of capacity, undue influence);
also if a will was somehow void, it can’t be amended (i.e., if the execution process is faulty, you
cannot fix that.)
 But note that incorporation by reference (below) can be used to fix errors in prior wills
 i.e., if you had improper signatures
 Must also confirm with execution requirements.
3. Facts of independent significance: (you know it when you see it) if the testator wants to refer to external
factual situations, those situations must have significance, independent of the will.
 Facts that are not easily manipulated by external forces – do the facts have independent
significance such that we won’t worry about the provision
 Such that we are not worries about someone’s will being affected by these external facts
 I leave 5K to each student in my fall 2021 class. We wouldn’t just take her class just to get her
estate. Taking her class can be an independent significant fact without pointing out actual names.
 Ex: leaving “$5k to each of my nieces and nephews” – unlikely that will be altered just to affect
the will. You cannot fraudulently create nieces and nephews, so this is something that we don’t
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worry about. Compare to: “I leave the contents of my jewelry box to my sister” – this is more
easily manipulated bc the sister could load the box with shit she wanted behind your back
 Hard question where we don’t know what is a fact of significance and what is not
 And so we have to let the trier of fact determine this
 So it must be assessed on a case by case basis
 “The contents of your hope chest don’t have enough significant to prevent fraud” but
usually named individuals are independently significant
 So if there is a gift box that didn’t have independent significance, that portion of the will would
just get struck out  and then maybe these assets go to the residuary beneficiaries
 Is a house a hope chest? Technically it’s a big container, but we usually aren’t worried
about people moving furniture around everyone before someone’s death
o And in Florida, we do allow you to leave the contents of your home to someone,
but we interpret that to be just those things that are typically found in one’s home
 sometimes if the drawer is “which only contains solely my coin collection,” or “which is
regularly locked with a key.”
 ** Hope Chest: pertains to tangible personal property
 Not stock certificates, etc. But in Florida, we have an exception that says you may give
away tangible personal property without executing a will bc we are less concerned about
fraud here.
 So in Florida, you may place a clause in your will that says, “I intend to leave a separate
list that devises or gives all of my personal items of my home to x, y, z”  doesn’t even
need to be dated
 Florida allows you to leave separate and informal lists of things you can give to people
BUT limited to just tangible stuff (no cash accounts). Exception really only found in
Florida.  called a “Tangible Personal Property List” (appliances, couch, furniture, can
be conveyed by a separate list).
o And if there are multiple lists, the more recent one rules”
 Can’t just leave everything in a box or house to someone?
 In FL we do allow people to give away tangible personal property (ex: jewelry, guns – but not
things like cash, titled vehicles, stocks) through written documents that don’t have to be
witnessed
 Contents on home  stock certificates
4. Incorporation by reference: A doctrine that allows you to incorporate some sort of external contract or
document into your estate plan. Specifically reference the terms of another document.
 Could incorporate: requirements that one might have in a pre-nup, requirements that one might
have with a buy/sell with a business; separate contractual obligations to make sure that the will
complies with what is required
 If something is attached, it is BOTH integrated and incorporated by reference because it is
attached to the back and then also referenced in the will.
 And this makes it so one doesn’t have to completely restate the terms of one’s prenup in
their will which is nice because this will becomes public and some terms are very
personal, so people don’t want these terms cut and pasted into their will
 Instead, they’d rather just reference the document and then keep it “separate” to be
incorporated when needed
 Butters uses this a lot and said that it’s probably the most common doctrine that is used!
 Fine, so long as 3 elements are met:
 (1) The document/writing must actually exist at the time the will is created
 why tangible personal property exception doesn’t work
 (2) The will must be specific enough to identify the document
o must be easy to identify by language
 (3) The will must manifest an intent to incorporate – it can’t merely mention it.
o Not enough to say I have a pre-nup agreement, it has to say: “I have a prenup
agreement and intend to incorporate it by reference herein”
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

o
If the document is amended after the creation of the will, then the will must be amended as well.
The most common use of this doctrine is with the concept of “pour over wills”
 Pour-over wills: Where the will specifies that everything you own at your death will be
put into a trust (pour over into trust), which has all of the substantive provisions. Entire
will is essentially a reference.
o “At my death, pay my debts and then pour what’s left over to this other
controlling document or agreement (the trust)”
 But remember, the TRUST MUST BE IN PLACE FIRST, the client
must sign the trust first, and then the trust can be incorporated by
reference
 And remember, the trust must be specifically referenced
o Why? May be preferable due to privacy considerations, since wills are public
documents and the terms of trusts are not. Trust are completely private
Revocations & Amendments
 People can freely revoke or repeatedly change wills. No such thing as an irrevocable will.
 May owe damages if you made a valid promise to include a testamentary gift and renege, though.
 Several means of revoking:
 (1) Writing/Written instrument: may be done either in whole or part.
o Requires the same requirements for executing a will to revoke a will!
 But there are some interesting nuances when the revocation is in writing
that you don’t have with revocation by destruction
 Revocation by physical act is an all or nothing proposition: the whole
thing is trashed or none of it is trashed. You cannot write VOID on one
provision and then initial it and try to keep the rest of the will in place!
No!
 So you cannot have a partial revocation by destruction, but you can have
one by written act.
o Revocation by written act is basically a codicil
o Partial revocations have the same signing/witnessing requirements as making a
will.
o We typically see two categories
 (1) Explicit statement regarding what you’re doing, or
 (2) Sometimes there are implied revocations, by inconsistencies in the
doc
 ex: you tried to give your china away twice, so you are implying
(by implication) that you mean to revoke one provision at some
point, ya crazy betch
 just by implication, we’ve figured out that you really did mean to
revoke all of the earlier times that you can your china away
 W1 – 2k to B, Ring to C, and residue to C
 W2 – 10k to B, Ring to C, and residue to C
 W3 – 20k to B, Ring to B
o Where the wills conflict, we use the last dated document
– but here, we have to look to the last most consistent
wills to figure out who gets the residue, since it wasn’t
explicitly listed
o When we have multiple documents, we’ll try to give
them effect whenever we can unless there’s some sort of
contradiction
o SO here, we’d give the 20k to B and the ring to B
o Note that revocation of a codicil (amendment) does not revoke a will, but
revocation of a will revokes errythang that came after it, every addition or codicil
o Tolin case: the orig will must be the one that is destroyed! If you don’t destroy
the orig, we don’t know if you really mean it. Here, the testator mistakenly tore
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up the from document; attny accidently gave testator the copy AND even though
all the evidence points to the fact that the testator wanted to destroy the will, this
wasn’t enough, he had the wrong document and didn’t destroy the orig. So what
remedy can we provide? The Tolin case goes with a constructive trust: where
they put a trust over the estate and say that the certain beneficiaries must pay out
accordingly to who the testator intended to give his assets to
 There are no unclean hands in equity! Here there were no unclean
hands, so equity should be the right remedy  there was no unjust
enrichment or someone benefitting from their bad actions
 Also, Butters thinks the court was even more willing to go along with a
constructive trust or equitable remedy bc the drafting attorney kind of
fell on his sword
 This was the time to make an equitable argument –just an honest
mistake, this is the place you go in your weakest moment lol
o NOTE: on test, if we are ever in a spot where we don’t know what to do – go to
equity!
 (2) Physical action: discouraged, but acceptable if 3 elements are met:
 We discourage revocation in this manner; prefer writing because it can
often times be hard to tell what your true intent was
 All or nothing! No partial revocation
o Three Requirements, at minimum
 (1) Physical act of destruction
 tearing it up, writing all over it, burning it
 must destroy original and not a copy
o she requires her wills to be signed in blue ink so that she
can tell if something is a copy or not
 (2) Mental intent to revoke the document
 (3) Done either by the testator, or in their presence
 this is to prevent fraud
o Harrison: lawyer tore up will and mailed it to testator; this was ineffective, but
court held when testator threw it away the destruction was complete.
 There was no question that the testator wanted this, but the attny didn’t
comply with the physical act of destruction, but the ct. said it didn’t
comply with the statute as a valid revocation
 But: there were two theories offered trying to claim that testator had
indeed destroyed the will: (1) through ratification: when she got the
pieces in the mail, she did nothing about and (2) the pieces were missing
upon her death, and so this could indicate that she had destroyed these
pieces after receiving them, therefore, destroying the will
 Court said: well since the will is MIA we presume destruction at death,
so proponent of will has not overcome the burden
 If the pieces had been found in testators home, would’ve been
probated! Cray cray
o Dickson: where man just wrote “void” at the bottom of the will
 did this count as a revocation by physical act? Is this enough, when he
could have done something more.
 Court tried to couple this act with intent – clear intention?
 So you can’t just have evidence of destruction (words) without intent, but
when joined with intent, the trier of fact may have enough to find
destruction
 So one can destroy a will with penmanship, but Butters said this was
really a weak effort – she didn’t know how much less you could do in
terms of physical intent lol
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o
FL has presumption that if a will is missing at the time of your death, it has been
destroyed. No one can find it!
 There is a burden shifting here. Basically, there is just a strong
presumption that the will has been destroyed (duh, MIA), but you can get
over this presumption, it’s just hard
 if your will is lost at the time of death, the law presumes testator
destroyed the will.
 So you can probate a lost will, if you have a photograph of the will, you
can probate the will with one witness who says, I know or attest that this
is a true photo copy of the last W&T and I know because I was there
when it was signed, or bc I am a paralegal at Holland & Knight, etc.
 evidentiary requirement: you need (1) copy of the will (2) testimony of
one disinterested witness to testify
o best method: revoke you will in writing  highly discourage physical acts of
destruction (tearing it up, cancelling words, burning).
 (3) Revocation as matter of law: can happen after divorce, or due to slayer statute.
o disinheritance, cancellation of a gift i.e., slayer statute, duress
o



Broader than just a will, a revocation of all beneficiary instruments
 Extends to accounts and savings plans
 Exception: government benefits such as social security survivor benefit
for federal pension plan, can still sometimes go to a bad beneficiary
 Clymer case (page 443): there are some equitable arguments that can still
be argued – argue unjust enrichment to prevent federal benefits from
going to a bad beneficiary with unclear hands
o Revocation as a Result of Divorce  any gift you gave that person is
automatically revoked. In FL, after a divorce, testamentary gifts to the ex-spouse
are revoked automatically.
 Upon entry of divorce decree, the will is revoked
 Half of the will is void after a divorce
 So revocation as a matter of law happens whenever a divorce
occurs, we don’t have legal separation in FL, so there has to be a
divorce ruling/decree!
 UPC: if you remarry someone that you divorced, the will is revived!
Under UPC all of the provisions are revived  this is NOT TRUE in FL.
In Florida, you must go create a new will because you have a
pretermitted spouse situation, potentially.
o Some jurisdictions revoke a will upon marriage, as well, but FL relies on
pretermitted spouse statute for those protections.
o Revocation as a matter of law, happens in other scenarios besides divorce
 Slayer statute
 We revoke all portions of a will, if you participated in the killing
of a testator
 Procuring marriage by fraud
 Then all of the portions of the doc that apply to a spouse will be
revoked, and all of the statutory entitlements
If revocation of a doc was procured by fraud, we will revoke that revocation . . .
Revoking a will also revokes all codicils, but revoking a codicil does not revoke the rest of the
will.
Revoking a will can sometimes revive a prior one, though not by default. The intention to revive
the prior one must be made clear along with the revocation.
 Rule: revoking a will does not revive prior will unless you explicitly say so or republish
the document (orig will)
o Ex: you create W3 that says I revoke W2 and revive W3
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But if you don’t explicitly say that you’re reviving an old will, and you revoke
the more recent, you are for that time, will-less
 Multiple wills: try to give effect to each of them, giving priority to most recent if there are
conflicts.
 Implied revocations: when there is an inconsistency between documents written at different
times. The later document is said to be an implied revocation of the earlier one.
 Dependent relative revocation doctrine: equitable doctrine that disregards revocations that were
premised upon mistake of fact or law. Must be a “but for” level of dependency.
 If your revocation is dependent on some assumption or intention that turns out to be
wrong, then we wont hold it to be a valid revocation  “mercy rule”
 if you revoked will #2, it’s because you thought will #1 would have been revived.
Types of wills
 Stand-alone wills: one that includes the trust terms within it
 Creates a trust within itself: hold my child’s inheritance until they turn 25
 Pour-over wills: one where the trust document is merely referenced
 Mutual wills: aka “identical” or “I-love-you” wills – between spouses, identical, leaving
everything to the other.
 These look on their face to be identical promises to each other but there’s actually no
promise that’s enforceable there
 Joint wills: where one will controls the estates of two people.
 Not an actual enforceable problem either, because the spouse who is the last to die can
revoke and amend, etc.
 Contractual will: one where you have made a promise to do something. Merely because it is
enforceable doesn’t mean you can’t change the will, it just means there may liability if you do.
 A promise to make a will: a binding contractual promissory agreement
o Has the same requirements as a will: so the promise to give someone something
has to also have the same testamentary requirements
o Two witnesses signing in the presence of each other & the testator to sign
 Oral promises aren’t binding alone, so the steps to make this a contractual agreementneed consideration; compare to I love you wills and joint wills (not enforceable promises)
 We require that testamentary promises be in writing.
 The promise cannot be gratuitous – there must be some consideration in order for it to be
enforceable.
 If testator backs out, may owe for whatever value the other’s actions up to that point were
(ex: I’ll leave you X if you take care of me, reneges, owes value of services – quantum
meruit).
 Once one of the parties has died then the other cannot back out of the agreement (unlike
with I love you wills, and joint wills)
 SO these contract agreements can be the will itself, or can be some sort of contractual
arrangement that must be honored
o NOTE: since these are contractual promises, the contract has to have
consideration to be binding
o Certainly, a contract between a caretaker and a testator has consideration: care in
exchange for a will gift
o Sometimes, the consideration isn’t always equal or adequate
 But we don’t really weigh the adequacy of consideration, but there must
be consideration  This is not a normal gratuitous transfer!
 Contractual wills can be just one part of the will (one provision or gift) OR they can be the
entire document  but we really only see this with couples who are making contractual
promises to each other
o We don’t not read a contractual promise into a will unless the promise is actually
there
 Anytime before someone dies, you may back out of a contractual will agreement
o
o
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o
o
There may be damages for this breach, but you may always back out of a
contractual will, and the reason why is because testamentary freedom trumps
contractual intent!
o But once the two parties to a contractual agreement have passed away, you may
not back out of it. The testamentary intent is then solidified
 Garret v. Reed: Blended family where husband and wife agree to leave everything to
other spouse, and after they die to leave everything to all the children; they only sign
mutual wills, not contractual ones, however. Husband dies, wife reneges, stepchildren sue,
and court accepts drafting lawyer’s testimony that it was intended to be a contract.
Ambiguities & Mistakes
 Ambiguity: where the words aren’t clear; we can’t figure out what was meant
 Mistake: where the wrong words were used; we can now correct drafting errors
 Primary considerations:
 Testator’s intent: written words and the 4 corners of the document are preferred, but
sometimes there are ambiguities that cannot be resolved solely using the document.
 Avoiding intestacy: avoid at all cost, since testator clearly tried to avoid intestacy by
drafting the document in the first place.
 Patent mistake/ambiguity: obvious
 I give to my nieces 5k each  well we don’t know who your nieces are, so we need
external evidence to figure that out
 Latent mistake/ambiguity: on its face it might be clear, but upon execution turns out to be
confusing (ex: there are multiple beneficiaries with the same name).
 Russell case: Roxy Russell was named in will, but was actually a dog; this is a latent
ambiguity bc when they found out it was a dog, it had to figure out what to do with
bequest. On it’s face, it appeared to give entire residue to a person; there was a will
challenge that that gift should pass intestate. Court rules that 100% of the residue passes to
a friend who had care of the dog (tried to fulfill testator intent)
o It went to S.Ct. and they said no, this failed as there was no language intending
for someone to care for the dog, so gift fails to Roxy and so that 50% meant for
the dog now passes by intestacy
o In FL this case makes no sense. FL court would have ruled 100% goes to friend
– avoid intestacy if possible
 When there is a latent ambiguity, and it is clear that it was due to a drafting error, we
could fix in FL if we have clear and convincing evidence that something was clearly a
mistake in drafting
 Extrinsic evidence: typically disfavored
 If you refer to family members by their relationship status to you (ex: cousins) but not by
name, then will allow extrinsic evidence to address that patent ambiguity.
 Will allow people to bring forth clear evidence of a mistake, though not an ambiguity (ex:
testator wrote Bob, but meant Billy).
o More tools available to address mistakes than ambiguities, so better to plead
something as a mistake.
 “Clear and convincing” evidence (highest civil standard) is required to
show a mistake.
o Russell: Testator left residue of estate to two names – one of which belonged to
his dog. Trial court uses extrinsic evidence to conclude that he intended to give
100% of residue to the other individual on condition that he care for the dog.
App. Ct. overrules, saying it was inappropriate to bring in any extrinsic evidence
since it was clear the testator gave the gift to the dog, and since that is
unenforceable that gift fails and goes to the intestate heirs instead.
 Personal use exception: where personal usage of word is different than the common usage,
may admit extrinsic evidence to show what was meant.
o When you refer to your fraternity brother as your “brother,” etc. Cultural
references that people use
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o
Personal representatives can seek the guidance of the court to address confusion
 Is expensive, and can be avoided through mutual agreement among the interested parties.
 Tax objectives: reformation of the will is permitted if necessary to meet the testator’s tax
objectives.
Changes in Circumstances/Property
 Assets may have changed, or beneficiaries may have died, etc. So we have specific rules to deal
with what we’re going to do about property no longer being owned/existing
Different categories of gifts
o (1) Specific Devise: specific parcel/property/thing that you want to go to a specific person
o These are given broad protections and we try to find replacement gift if at all possible
o (2) General Devise: general gift of cash to a person or persons
o Less thoughtful; not as protected
o (3) Demonstrative Devise: kind of a hybrid; general gift from a specific place (I give 50k from
my Suntrust account)
o Given a little more heightened protection than just a general gift- the thought went into
not only what I want to give you but where I want to give it to you from
o (4) Residuary Gift: what is leftover; usually the largest gift
o Treated as being the least thoughtful
Depending on type of gift, we apply certain rules/meaning to it
 First step is to look at testator’s intent had he known the property would be sold/wouldn’t
exist – there may be a backup plan in the will for what happens; if there is not a planned for back
up plan, there are rules to resolve the issue: statutory guidance.
 4 general rules for when property doesn’t exist anymore, but it is applied to someone:
Ademption, satisfaction, abatement, and exoneration.
 (1) Ademption
 Where the property is gone or no longer exists in the form mentioned in the will. “can’t
give you what you don’t have.”
 There is a distinction in gifts of property (voluntary) versus some involuntary action that
took the property away from the testator
 General rule: if the asset doesn’t exist at the time of decedent’s death, the gift fails and the
intended recipient doesn’t get anything UNLESS the will provides for some sort of
replacement or Plan B
o This rule only applies to assets that we no longer have, doesn’t really apply to
residuary gifts
o With specific and demonstrative devises, you take nothing unless you fall within
an exception.
o Ademption doesn’t apply to cash, since it can come from many places and things
can be liquidated to generate it.
 BUT there are instances where we feel under equity, we need to give the beneficiary
something
o And as stated above, we focus on the “why” the asset/property is no longer
available
o Ex: if I gave you my house, and then I sold my house, and I had $400k sitting in
my brokerage account, would the beneficiary get the money in the account?
 No, because here, this is something that the testator could control and
should’ve replaced the will gift here! Beneficiary gets nothing here
o Ex: stock is same way: if stock was gifted and then sold, the beneficiary would
get nothing
o Nakoneczny case: where father gave son his land and tavern in his will: it was
involuntarily seized and the father was paid for the gov’t taking, yet the father
failed to correct will with replacement money for son. Son tried to say there
should be some equitable remedy bc the land was involuntarily taken. Court said,
no, you get nothing bc even though the land was involuntarily seized, the testator
had ample time to update his will and he didn’t
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
Perhaps if the testator had less time to change his will the beneficiary
would have a better change here!
 Exception to General Rule 1: Changes to securities
o Will the beneficiary get securities if the thing that is devised no longer exists?
What is critical here is the language of the will
o Company changes name (mergers): unless there is something contrary in the will,
beneficiary will simply get the new stock.
 The court will give beneficiary the shares in the new co, because the idea
is that the testator had no control over this merger
 But where testator has a role in the changing of assets, we kind of hold
them accountable to the detriment of the beneficiary; for failure to fix
o Changes in number of shares do to growth: if testator specifies some number of
shares less than they own at time of death; “my” vs “only” distinction.
 “I leave A my shares…” or “all of my shares”: implication that they
meant all of the shares
 “All of my 10 shares” is harder  still may just be 10 shares and
not 100 if growth occurred
 “I leave A only X shares…” or “he will get my 10 shares”: limit was
clearly intentional
o Right to Dividends: do dividends go with beneficiary or stay with estate? Unless
will says otherwise, beneficiary only receives dividends declared after death;
prior dividends go to testator’s estate.
 Any dividend that was issues before death, but the check still has yet to
be received, still belongs to the testator
 Testator gets the dividend that was declared (versus received) before the
date of death
 Beneficiary gets the divided declared after the date of death
 Exception to General Rule 2: Involuntary changes: eminent domain, sale by guardian,
unforeseen destruction, etc.
o The key is what the testator’s involvement and level of control was  once the
cash (replacement cash) is in the hands of the testator, we will no longer find you
a replacement gift! The check must be in transit or testator never got check, etc.
because the law assumes that once he got that check, he would change his will.
Burden on testator to make proper amendments to his will
 Involuntary takings or destruction/stealing
 Ex: I tried to give you my home but it burned down
 Ex: I tried to give you by jewelry but it was stolen
o We instead give you an insurance check, or if the car
was stolen, is there a replacement car?
o Guardianship proceedings: management of another’s assets can have effect of
rewriting their will.
 If guardian sells something (to pay for retirement home for example) and
this results in disinheritance of a beneficiary, the guardian can use the
proceeds to benefit the testator while they are alive, but the funds are
otherwise considered set aside for beneficiary, and they get what’s left
after death.
 If you were given house, but it was liquidated and only half of
that value from house was left after death, we will try and get
you that value from somewhere else to make you whole
 Same with stock sold: figure out a way to make beneficiary
whole
 Why? We don’t want the guardian to be able to rewrite estate plan
o Destruction: Generally only give the beneficiary any insurance money if it hasn’t
been paid out to the testator yet.
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

If testator receives the money, they have to change their will in order to
direct the money to beneficiary.
 This is merely a default rule that can be drafted around.
o Eminent domain: same rule as with destruction.
o Jones case: where even though an uncle promised niece a note (or the income
stream) that ended up being paid off in full, and he didn’t correct his will; the
court looked to testator intent to figure out he just wanted to give her money bc
she was hard up for cash – and I think ended up giving her some money
(2) Satisfaction (similar to advancement)
 Where property has been given to beneficiary before death (called “Ademption by
satisfaction” if the asset is no longer in possession by estate b/c it was already given).
 Occurs under two circumstances:
o Advancement of the gift is proven (if not dealing with an exact asset).
 Where we are dealing with cash and stocks/securities, satisfaction isn’t
deemed to have occurred unless the rules of advancement are proven
 (1) contemporaneous writing signed by testator, saying, I’m
giving you this stock now, so I’ll just give you rest later
o must be sufficient evidence
 (2) if no contemporaneous writing, the beneficiary of gift can
also acknowledge that the gift was given in advance
 (3) OR none of first two, the will make speak to the
advancement
o maybe a codicil to the will and so the will no reflects an
update or the advancement; “equalizing clauses”
o whatever I gave this person during life, deduct at death
o It can be shown that the beneficiary already has the exact asset.
 “I don’t have the house I gave you in the will, bc I gave it to you 6
months ago”
 The gift has been “satisfied” so it doesn’t necessarily fail
(3) Abatement
 Where there are insufficient assets to give to all the beneficiaries; which gifts fail or abate
first?
 Public policy goal of paying debts, taxes, administration of the estate, etc. The priority list
goes as follows:
o Top priority: pay the attorney and personal representative
o Bury the body (though $6000 cap, which is hardly sufficient)
o IRS
o Deathbed medical expenses
o General creditors – they get 100% of what they’re owed, but remember that some
property is creditor exempt.
 Beneficiaries in the will pay a pro-rata share of the debts, within the different classes of
the estate. The order in which inheritance shares are tapped to pay debts are:
o Intestate shares (partial intestacy)
o Residual shares (there isn’t gonna be any residuary left anyways!)
o General devisees of cash go next
o Specific & demonstrative (in same bucket, treated the same)
 Pro – rata, usually just has to come from residuary, but idea that each beneficiary as we go
up the class chart has to be equally worse off based on gift proportion
 We look to testamentary intent to figure out who gets what taken first: specific gifts are
more important than general gifts  so we take from the less important or residuary gifts
first
 Can draft around the abatement provisions by specifying which gifts you want to abate
first if you have debts to pay. It only matters that they are paid, not how it is done.
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
(4) Exoneration
 Under what circumstances will the estate pay off a lien/liability associated with an asset so
that the beneficiary inherits it free and clear.
 General rule: you inherit the debt with the asset, unless testator specified otherwise.
o A general “pay all debts” directive is not sufficient – it must be specific to the
asset.
o Can result in beneficiary having to sell the asset and get whatever equity is
leftover after the sale.
 Encumbered property is received by beneficiary encumbered unless specifically stated
otherwise in will
LAPSE: Deceased beneficiaries (where beneficiary changes)
 “Anti-lapse” statutes deal with situations in which the beneficiary has died and not there to
get their gift; which gifts fail and which don’t fail (save them for other people)?
 Note: the anti-lapse statute covers actual deaths and deaths as a matter of law (divorce,
slayer statute, fraudulent procurement of marriage)
o 3 (most common) situations:
 Beneficiary dead at time will is drafted: gift is void, and fails.
 Beneficiary alive when will is drafted, but dies before testator.
 Beneficiary treated as deceased for inheritance purposes, legal death
o Even if the beneficiary dies two days after testator, still their gift
 FL: must survive testator by a nano-second for anti-lapse not to apply
 Big deal: then the gift will pass to that person’s family
o Consider 3 factors when deciding what to do with gift that is void:
 (1) Nature/type of the gift (specific/demonstrative/general, whether it’s a
class gift, residual, etc.)
 (2) Whether will provides information about testator’s intent
 Any “to x and then to y after”  probably gonna give to y
 (3) Testator’s relationship with the beneficiary; look at family setup
o FL General rule: where a beneficiary is a lineal descendant of the testator’s
grandparents, we assume a close enough familial connection to save the gift
(won’t fail) unless the will specifies otherwise.
 The gift passes to the beneficiary’s descendants per stirpes; includes
nieces, cousins, and uncles (all fall under category of one set of gparents)
o In order to avoid assumptions of anti-lapse rule in FL, merely need evidence of
“contrary intent,” a very low standard.
o If you don’t like it, draft around it! Like if you don’t want A’s share to go to
his kids if he dies, put that in your will!
o In trust context, anti-lapse rule tries to save every gift possible, regardless of
blood relationship.
 Anti-lapse statutes make assumptions about 3 types of gifts and how the statute applies:
o **anti-lapse applies by blood and not by marriage, so if you leave something to
your spouse & she doesn’t survive you, your children DON’T get this gift?
o Class gifts: If you leave a gift to a class of people (ex: employees) and one
predeceases you, we assume you wanted the gift to be divided equally among the
rest, unless other provisions also apply (such as family relations).
 If the class is a family relation one (ex: “to my nieces &
nephews”), you first look to the language of the will (because it
might provide for a remainder interest), and then:
o If a blood relative has predeceased the testator, then their
share is saved and goes to their descendants.
 If nieces and nephews don’t have descendants
and their share fails, it goes back in class pot to
be split among remaining class members
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o
o
o
+
Gifts
o
o
If not a blood relative, then their share fails and is
distributed among the rest of the class.
Specific/demonstrative/general devise: if the beneficiary is a blood relative, we
save it. If not, then it lapses and it passes to the residue.
 Assumption anti-lapse statute makes: if you’re giving a family member
something, we will always save the gift (for his/her descendants) unless
your will says otherwise
 Could be a problem if minor kids are inheriting cars and guns
 Or fine china set for mom is now being split by multiple kids –
no good that way. SO Butters always drafts around this stuff that
is not easily divided
Failures in the residue: Typically just give the deceased beneficiary’s gift to the
other residuary beneficiaries, pro-rata. Always try to avoid intestacy or partial
invalidity.
 Where there is someone in the residuary gift class that does not survive,
and they are not related to the testator, we will save their gift and give it
back to the residuary pot for the rest of the residuary beneficiaries
 UPC: if there is a non-relative situation, there is partial intestacy
 Florida does not allow this, but redistributes pro rata
 Avoid intestacy unless testator said not to redistribute among a
class
In order to tender a gift, 3 things required:
 (1) Donative intent
 Evidence that you meant to give it, was not a conditional gift, was not revocable.
 (2) Delivery
 For real estate, requires writing.
 Can be actual or constructive.
 (3) Acceptance
 We assume people want gifts, and would typically only be looking for disclaimers or
evidence of resisting the gift.
 Easiest criteria to meet, bc we assume you wants – acceptance is presumed unless the
recipient takes some sort of affirmative measure
Real estate
 Gifts of real estate are perhaps the most difficult gifts to make bc you have to comply with the
SOF
 Statute of frauds requires that all transfers of land be written and recorded, with two witnesses
and a notary.
 (1) Donative Intent
 Look at the language, facts, and circumstances surrounding a transfer in order to
determine donative intent.
 (2) Delivery: we presume that delivery has occurred if donee is in possession of the deed, even if
it hasn’t been recorded at the courthouse.
 Recorded deeds have the presumption of both delivery and acceptance.
 Where donor retains possession of deed, reverse presumption applies – that they never
intended to deliver it or make the gift.
 A future delivery date that is set, irrevocable, with no conditions is a completed gift.
o But we don’t honor testamentary/pay-on-death deeds.
 Delivery must include: tender of possession and tender of written document!
 Leonard: focuses on the requirements of delivery and intent: Father executes deed, informs
daughter she is to get property after his death, puts deed in his safety deposit box, which she has
access to. She retrieves deed and records it. Court: father did not have the mental intent to give
her the gift now, so it failed.
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o
 Dad claimed a lack of delivery and lack of donative intent (had acceptance)
 Delivery: was it enough for me to tell you where it is and then you can go self-help versus
on actually handing over, physically handing over
 Court said there has to be a “meeting of the minds” as in contracts with the giving and
acceptance of the deed. Looked at what dad meant and what daughter thought he meant,
and were those two on the same page with respect to when this gift would occur
o There was a presumption of delivery here, bc why else would you have that deed
if it hadn’t been delivered to you  since deeds are so sacred – possession is
9/10 of the law
o So if you have possession of the deed, we presume delivery has occurred!
o Daughter can then easily prove acceptance has occurred
 And bc the first two are presumed and bc the deed is recorded there is a presumption that
the conveyance is complete, meaning donative intent was met
o So now burden is on dad
 So while the daughter can’t flat out show that dad had donative intent, she has a
presumption due to the other factors being met  up to dad to rebut this
o But where the grantor retains possession (dad stayed in home), there is a
presumption that gift hasn’t actually been delivered
 “How could I deliver the home to you if I was still in the home?”
 So there were presumptions at play:
o (1) possession of deed presumption and (2) recorded deed presumption versus (3)
grantor retaining possession presumption
 But then the court discusses the deferred delivery and discusses donative intent – we have
to get inside the donor’s mind
 Here is the intent: “this is yours, I just don’t want you to have it until I die”  this is a
completed gift, a gift with a life estate retained!
 SO argument really got down to whether this gift was revocable or irrevocable
o "Owner retains for himself the right to live on the property for the rest of his life,
and when this person dies, the estate goes to x"
 This is a life estate remainder deed
 Sometimes called testamentary deeds, where deeds aren't delivered until
after the owner dies
 The fact that you didn’t deliver possession right now, doesn’t
mean that the gift isnt completed -- what it means is that there is
a condition that is irrevocable
o "I just want to live here the rest of my life and then you
can have everything"
o Just delaying the possession aspect of the gift
 So these life estate possession gifts (lady bird deeds) are the types of
deeds that say Im giving you this now (completing this gift) but you're
just not going to get full possession now
 Nothing more than will substitutes --that you could do through a
will but choosing instead to do through a deed
Personal property
 Easier to transfer than real estate bc there is no paper trail (same is true of cash); still requires
donative intent, delivery, acceptance, but no writing.
 Gifts of personal property is much less complicated, less formal, again no writing, and it makes
sense because real estate is often worth much more monay
 Possession creates presumption of delivery.
 Delivery
 Personal prop can be transferred in lots of ways, unlike RE. Usually rings and tangible
smaller goods are just handed over to the person
 What about a trip to Paris? Constructive transfer?
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

o
o
o
Inter vivos (during life) vs causa mortis (resulting from belief of impending death, or which is
intended to take place upon death).
Gruen (page 509): Father promises to give son a painting for 21st birthday, but only upon
father’s death. Wife tried to keep painting, but son came forth with letter from father. Wife claims
no actual delivery occurred, so the gift fails. Court applies functionality test and says there was no
need for father to literally deliver the gift; it was constructively delivered through the writing.
 Delivery can be symbolic  “constructive delivery”
 Acceptance was met because there is a presumption of acceptance with expensive gifts
such as a fine painting, duh, and also the plaintiff had discussed his father’s note with
friends and associates
Checks
 Normal checks are always revocable
 Donative intent is not assumed merely because the check was written
 Acceptance is not presumed merely by possession, since there may be no intent to cash it
 UCC regulates checks
 Recipient must cash check in order for delivery and acceptance to be complete.
 If check not cashed prior to donor’s death, gift is considered to have failed.
 It is actually illegal to cash a check once a person has passed away  stealing from estate
basically
Securities
 Are generally transferred electronically these days, but donor can also sign a paper of intent to
transfer and give that to recipient.
 Normally, once the wire of shares is done between accounts, the gift is presumed to be complete
 When you can’t get a bank to transfer funds, the back up plan: you can do an assignment which
says “I irrevocably transfer funds from this bank account to this bank account”
 So now can be done/enforced by wire transfer or irrevocable assignment  books of a company
must be updated to actually reflect the transfer
Gifts causa mortis
 Gifts made in anticipation of death; these are lifetime gifts, I am still alive when I transfer this gift
to you
 General rule: always revocable, and if the donor survives then the gift fails.
 we allow these gifts to be revoked by donor bc it was made in anticipation of death and
you might feel differently if you don’t actually die
 Where donor does die, we aren’t focused on the two-witness requirement of testamentary law, or
the delivery requirement of inter vivos gifts.
 Anti-abuse provision: any gifts given away on deathbed are still available to creditors.
 Scherer case page 523
 Woman was in serious pain after an accident and was going to commit suicide. She
endorsed a check to her son to clear out her bank accounts. She left two notes with the
check, one saying that she was leaving him everything and one a suicide note
 Question was if this was a gift causa mortis or a testamentary gift (post death) – bc it
would fail if it was a testamentary gift as it was not a properly executed will
 Court found it was a causa mortis gift, transferred during life
o Usually a check isn’t delivered until it is cashed, but given the circumstances
here, the court found that her surrender of the possession was complete when she
locked the check and notes in her apartment and left to go kill herself
o This was impeding death (a true sickness/depression) and her intent to transfer
was clear based on the endorsement on the check, leaving it in the apartment, of
which only her son had access to, and the notes of course
o Court noted that she did all she could or though necessary to surrender the check
 Court found there was sufficient acceptance even though it didn’t happen until after
donor’s death. There is a presumption of acceptance where a gift is unconditional and
beneficial to the done  also a done cannot be expected to accept/reject gift until he
learns of it
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o
o
o
o
Engagement rings
 In FL, treated as a conditional gift – if marriage doesn’t occur for any reason, regardless of fault,
man gets the ring back. Like a gift with conditions (the marriage) to be fulfilled or else girl can’t
keep it, regardless of who is at fault
 If divorce occurs, is typically treated as joint asset of marriage and subject to equitable
distribution.
Gifts to minors
 Minors can own and inherit property
 Minors cannot typically own real estate, because they cant manage the property
 With gifts to minors, gifts have to be given to someone who has the legal authority to manage
assets
 Minor child can manage only 15k of their assets (parent can manage their assets for
them); so if they are going to manage more than 15k, then a guardianship court has to get
involved to manage assets for them
 FL: cannot inherit > $15k without court being involved.
 Guardian court: for when someone lacks the mental or legal ability to manage their own
assets; appoints guardians to do so for them.
o Idea is that, if you are incompetent, someone has to watch out for you and you
cannot represent yourself here
o Quarterly reporting, annual accounting, occasionally posting of bond by guardian
in case of mistake on their part. Can be expensive, complex, and public.
 Can set up a trust for a minor, in order to have control over who is managing the money, how,
and when the money is given to the child; avoids guardianship court
 Uniform Trust for Minors Account (UTMA): default trust for minors that you can opt in
to, if you don’t want to create your own trust terms.
o At 21, UTMA trust money goes to the beneficiary – can be up to 25?
o No court involved
Contractual gifts
 Arrangements to pay on death, beneficiary designations, joint accounts – essentially contracts
with you and some institution to pay someone else on your death.
 These do not require testamentary formalities/requirements – not a will; bank lobbyists
have help fight for these rules of no will formalities
 Also freedom of contract! Why we don’t need two witnesses
 We also have a third party intermediary (looking out for fraud)
o And the designations are revocable, so if one is worried about grandma having
her arm twisted one day (by daughter) she can go down to the bank the next day
and change
 Often used as will substitutes, or to dispose of assets separately from a will
 Are revocable and can be changed as often as donor likes
 Lack of formality arguably offers protections, since donor can change things away from
presence of undue influencers and at their own convenience
Joint accounts
 Presumption of intent to pass ownership at death to other account holder, unless there is clear and
convincing evidence to the contrary. (law presumes ownership versus convenience  like if
someone really just had a person’s name on their account for convenience
 On the owner of the account to present clear and convincing evidence that this was NOT
intended to be a gift
 If person had been added merely for convenience of true holder, would have to prove this.
 Presume joint ownership (50/50) and right of survivorship.
 Exception: jointly titled safety deposit boxes. No presumption of ownership.
o Just because there are joint titles on the box, doesn’t mean law presumes there is
joint ownership of the box’s contents  we assumed the male rolex belonged to
hubby and the diamond earrings to wife, etc.
o
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+
+
Review: wills only transfer assets after someone dies, gifts are lifetime gratuitous transfers and trusts are a hybrid
of both
Electronic Wills
o Weird in FL — most practitioners in trusts will never do e wills. Butters must say desperate or reckless
 she basically says these only got passed because venture capitalists threw a lot of money into this
to get FL to approve - hired big law firms so there would be conflict if anyone hired in opposition
o
o
o
o
o
o
o
o
o
+
Electronic Wills —
 Wet-ink wills are deep rooted in common law; while E-wills are all commerce
 Totally different execution requirements/policy rationales as to why they exist than regular wet
ink wills
 While Florida provides for electronic wills as an alternative to traditional wills, to historically
create a valid will in Florida, the following formalities had to be strictly observed:
Issues: Room for a lot of influence, fraud, etc. Even via Zoom, is there someone two feet away? Can we
assess someone's mental function when all they need to do is click?; all you need to do is sit online
ID Verification Test - high schools for last 20 years, where you grew up, etc. Butters is confident ID
verification process is safe.
Process: pick a vendor, go through process of e will;
Florida 732.524
 Person must be
 Domiciled in and a resident of this state; or
 Incorporated, organized, or have its principal place of business in this state.
 Custodian of electronic will must have a secure system and store the system in a secure
record place
 Prohibits a vulnerable adult from using remote witnesses (you would have a zoom screen of
testator, witness, etc.… line of site test is met). If vulnerable adult, witnesses cannot be
remote on the screen, they must be in-person. So, system will prompt you questions if you
are a vulnerable adult and if it detects yes, it will make you have witnesses in the room.
Vulnerable Adult = ability to perform daily activities is impaired due to physical/mental disability of
infirmity of ages (i.e., bad suit)
 This is incredibly broad… Butters emphasizes that she can even be a vulnerable adult under this
definition since she wears bifocals
 Prompt: - Butters will not test you on this, but Bar sure will!
Prompt Questions to Test Capacity/Vulnerability:
 Do you need assistance with daily care
 Are you under influence of drugs or alcohol
 Do you have a physical or mental disability that impairs your ability to care for yourself
If you answer yes to any of these questions, program will kick you out. Kicker: Many people are in
denial; Consumer Protection Notice: if you answered yes, you cannot sign a will today.
 Verbal Portion - system wants to hear / talk to you. Notary must conduct verbal Q & A for
evidentiary record
 Must be in a data-protected environment; must be stored by a qualified custodian — the second it
is released back to you, no longer self-proof document
5 Questions
 Are you married - aka tell me who your heirs are (assessment of sound mind, cannot ask
about children or familial situation)
 Who is actively procuring: Who assisted you with the audio video communication today /
preparation of documents today
 State the names of anyone who assisted you
 Where are you located right now - trying to get at: are you in an assisted living facility or
hospital to assess mind
 who is in the room with you
Trusts
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o
o
o
o
o
They can be created during lifetime and can also be created upon death, can do both at the same time
(trust that has both intervivos aspects and death transfers)
 We know that anything transferred at death must have testamentary requirements, so if you have
a trust that has a little bit of both (lifetime gifts and testamentary), this means that you have to
comply with the testamentary requirements!
Trusts are what they imply: you give someone something to hold for someone else’s benefit
 Trusts are just the vehicles to allow a third party to do something with some stuff lol
Must have:
 Settlor: person who creates the trust
 a trustee: person you are going to name to do that thing for you
 what is that thing: the res/ the trust principle
 trust purpose: why you want that trust to hold on to the res
 (1) I want you to hold it for this beneficiary (including myself) or (2) I want you to hold it
for this particular honorary purpose
General
 Can act as will substitutes
 Is essentially a contract between settlor and trustee to manage trust in a certain way
o And bc it is a contract, we can decide the law that governs
 Can be created for any legal purpose that does not violate public policy
 Benefits vs wills:
 Beneficiaries can receive benefits during lifetime
 Privacy
 Incapacity planning (offers seamless transition from your management of the trust to a
new trustee once you become incapable of managing things)
o Cheaper, quicker, easier, more private than guardianship
 Death planning: seamless transition occurs at death and manages the assets outside the
probate court’s jurisdiction
o Great way to avoid the court managing your money
o Get the convenience of immediate access to something at someone’s death
 Choice of law benefits
o Including tax benefits
 Trusts separate the ownership benefits of property – the trustee is given legal ownership, but the
beneficiary has the beneficial ownership rights and enjoyment.
There are two types of trusts that are created at law (1) express and (2) implied
o Express trusts


Grantor expressly set the terms of the trust.
 Can be oral or written
 Can be testamentary or inter vivos
 Can be revocable or irrevocable
Required things to create a trust!
 Settlor (aka grantor, donor, trustor) must have mental and legal capacity
o Settlor must have intent to create a trust; minimum desire to create some sort of
trust document
o Intended to transfer property and charge that person with obligations/fiduciary
duties (not just hope)
 Must have trustee who has
 Property, res, or principle
o Trustee must have something that they’re managing, a thing!
 Trust must have definite, identifiable purpose or duty (beneficiary)
o 3 exceptions:
 Pet trusts
 Charitable purpose trusts
 Non-charitable purpose trusts
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o
o
o
o
 The trust terms must be defined?
o The trustee’s duties do not, however
 The trustee cannot be the sole beneficiary
o Doctrine of Merger: if the trustee is the sole beneficiary, you don’t have a trust
o Aka, the trustee is the purpose OR the purpose of the trust is for the trustee
o If you own all the sticks, you own fee simple and there is not reason for the trust
structure any longer
o BUT when we are deciding if there is a merger, we look at the entire trust
 So even if trustee is also the beneficiary during his or her lifetime, as
long as there is someone in line at that person’s death, the truth will be
valid
 There can also be a sole trustee/beneficiary at life to be given at death –
so some of sticks are given up
 Taliaferro: Husband creates trust for benefit of himself and several other at his death; is also the
trustee. Never retitles the property to the trust. Court applies functionality test, says that he did
not have to formally transfer things to himself as trustee, and the schedule he submitted was
sufficient; that the only intent that mattered was his intent on the day he signed the trust schedule,
that he had accepted his own appointment as trustee (though perhaps breached duties through
later actions).
 He will service trustee so long as he is alive and will be beneficiary so long as alive. in
other words, at death transfers
 Morseman: “Doctrine of merger” – if you hold every bundle of sticks (legal and beneficial
ownership), then you have fee simple ownership and there is no trust. Man created trust for
himself and “future wife and children,” who didn’t exist, he was sole trustee and beneficiary, so
the trust failed.
Oral trusts
 Cannot transfer real estate orally - SOF
 Cannot have any testamentary component
 “I give $50 to my niece and say I need you to go to the store for me”  trust because
youre entrusting someone with money for a specific purpose, with defined duties
o ok in FL because it must be fulfilled in our lifetime
 “Here’s a $100 for your brother when I die”
o This is a testamentary oral trust which is not allowed in FL!
 Terms still have to be clear and well defined, as with written trusts
 Could give your son money and tell him to use it for your grandchild’s education expenses
 Usually arise in deathbed or other time crunch situations
 Clear and convincing evidence of the terms of the trust are required to have the terms of the oral
trust upheld
 9/10 oral trusts deal with cash or jewelry, more tangible property
 safe route is to just put trust in writing so that there is a document to validate
Written trusts
 Any type of testamentary trust MUST be in writing in Florida
 But there could of course be lifetime trusts in writing as well
Pour over will – POD to Trust
 During my lifetime, I own all the assets, and it’s only at death that all of my assets pour into my
trust
 If there are no assets in the trust before hand, will the trust fail?
 FL allows these to be valid trusts even if the trust doesn’t currently hold property because
it is holding the expectation of property lolz
 The mere expectation that you will have property someday is enough to satisfy this
property requirement
 Note, Butters used to make her clients bring her $1 to make sure there was “property” in the trust
before there was “clarity in Florida”  but now the expectation of prop fills trust
Precatory Trust (predicated on . . .)(this is an implied trust at law??)
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
o
o
Trusts where a gift is made and the evidence or the wording indicates that the gift that was made
was predicated on some additional requirement
 May not have been the best choice of words
 A trust where, although a gift was made, it was predicated on some other requirement
 Bollinger case: man who left his estate to his father, and if not his father, then his step mom and
then he left nothing to his minor children (instrument was a will)
 We can tell by the terms of the trust that the guy is giving his assets to his dad and
stepmom because “he was confident that the dad would do right by his kids”
 Kind of cool: even though this language was in a will, the kids claimed that this language
created a trust for the kids! Question: does this language create a trust?
o “he is confident that this parents will do right by his kids”  he could’ve been
more explicit and said: “to my parents to hold as trustee, my assets for my kids”
and he didn’t say that
o seems on its face more like a normal testamentary gift by will
 Court: we focus on the precatory words on the page  what sort of obligation did Harry
intend to create when he used this language? (1) was it a legal obligation where he is
legally obligated to use the money for Harry’s kids (trust) or (2) was it a mere moral
obligation (court is not in the business of encoring moral obligations)
 Court held: this was clearly a gift to dad and step mom, he was giving them a gift to the
exclusion of his children  Harry knew he was disinheriting his kids on moral reasoning
 Cf to Levin case: “I leave my assets to my sisters and it is my desire that my sisters use this
money to pay so and so 200 bucks a month for the rest of her life”
 you would think that with this language, this is again, a moral obligation or request
 but the court looked to extrinsic evidence to show that the woman (beneficiary) was poor
and old and needed the money
o and it was clear that the settlor meant to create a trust for the old woman, and
probably just accidently used the weird word “desire”
 note: this was an implied trust?
Implied trusts (this pop up as a matter of law; created through equity) (more later)
 Created when there is sufficient evidence in the language used by the individual to show that a
trust was meant to be created
 Precatory gift – gift that is conditioned on an assumption that the assets will be used in a specific
way
 Precatory trust: trust implied at law due to the conditional language used
 You don’t have to use any particular language but there has to be something within the
gift that expresses your intention that the funds be used in a certain way; needs to be
language that creates a legal obligation
 Bollinger: man leaves estate to father, and if not father, to step-mother. On paper, leaves nothing
to children, but they argue that the idea was to leave it to grandfather/step-grandmother for their
benefit. Court finds that there was an unconditional devise to the decedent’s father/stepmother,
with only an unenforceable moral obligation to use the property for the benefit of the children.
 Key with precatory gifts is whether you gave it only with a moral obligation, or also with
a legal obligation
 Levin: Money left to kids with language saying their mother “desired” they continue providing
their aunt with upkeep. Court recognized it as a legal as well as moral obligation imposed on
them (would’ve been clearer with use of “SHALL”).
Totten trusts
 Aka “tentative trusts” – creature of statute, where someone deposits money into an account with
intent to hold it for benefit of another when the depositor is dead.
 Basically, self-settled trusts: meaning I declare that Im going to hold these assets for someone
else, but they’re my assets and although I’m declaring that I’m holding this on behalf of someone
else, it is not a completed gift, because I have not yet delivered it
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o
o
 Essentially a revocable pay on death account that the depositor can add to or withdraw
from at will.
 Tentative in that they’re perhaps going to pass to the beneficiary someday, but they are
completely revocable for the giftor’s life
o Is not a completed gift during the grantor’s life time.
o Sometimes called ITF accounts (in trust for); sometimes FBO (for the benefit of)
 Typically there is language that indicates that there is some trust capacity
going on
 Sarah Butters FBO John Doe – they’re my assets but im holding them for
the benefit of some other person
 Every state allows you to do this
 How to create
o Go to the bank and change name on bank account to in trust for so and so
 Free revocable, even though they are express trusts in that they are created by a written
document
o Ways to revoke
 No formalities required in revoking
 Easiest way: close the bank account; just take the money out of the bank
 Explicitly through written document or re titling who it is in trust for
 Without witnesses or formalities
 Oral: declare to your bank that you don’t want this person on
there anymore
o Can be revoked orally, with sufficient evidence??
 Implicitly because your did some contradictory gift of those funds in
your will
 We try to give effect to your last state wishes
 If you make totten trust in 2001 but write will in 2005 giving
away the same asset, we go with the will
 If the trust terms contradict the will (name different beneficiaries for the account), court
will take evidence to determine intent
o Best practice is to address the trusts specifically in wills, though use of catchall
phrases can be useful as well, since client may not remember all their accounts.
 Rogers case: Mrs. Rogers opens bank account, says in trust for sister Martha; later goes to
lawyer to have will drawn up – creates trust for her sister Martha to get money in
increments
o Trust is created such that Martha couldn’t get money outright; Mrs. Rogers dies,
and Martha wants the money outright from the bank account (totten trust)
o Problem: only way Mrs. Rogers could fund the trust in the will is if she revoked
the totten trust. So question wasn’t if she got both trusts, but which one
o Court said the will was ambiguous BUT since she changed her will after the
totten trust was created, there was an implied revocation of the totten trust
 Can impliedly revoke
Trusts to Protect People from Themselves and Creditors
 Designed to help someone manage their money; protect them from themselves
 9/10 someone wants a trust bc they are worried about the beneficiary blowing the money
 FL is very trust friendly and if a trust restricts money, we follow trust – can’t sue for payout now
Discretionary Trusts
 Can make it so money only goes to the beneficiary for health, education, maintenance and
support  whatever the trustee thinks is in the best interest of the beneficiary
 If you’re self sustaining, you’re not going to get much from the trust
 These are to protect the beneficiary from creditors
 Can name certain things that the trustee gives money to beneficiary for
 For specific purpose or for none at all; “Make distribution when my child gets married”
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o
Spendthrift trusts (express trusts)
 Gives trustee full authority to make decision on how the trust funds may be spent for the benefit
of the beneficiary
 Designed to present the beneficiary’s creditors from getting their inheritance
 Similar to asset protection trusts (which aren’t allowed in FL), except they protect from
beneficiary’s creditors rather than grantor’s.
 Two requirements:
 Must prevent beneficiary from voluntarily giving away their interest, and
 Prevent beneficiary from involuntarily having their interest stripped away.
 Creditors can go after the money after it has been distributed to the beneficiary, but cannot
directly force the trustee to pay them.
 Public policy exceptions (The 4 “Super Creditors”):
 Creditor is entitled to child support
o Any child support obligations can be paid out of the beneficiaries trust
 Creditor is entitled to spousal support
 Creditors has provided trust-related services to the beneficiary
o Lawyers, accountants, other professionals
 Tax liens
o The IRS
we give a lot of discretion to the testator’s intent.
 Sligh: Plaintiff was paralyzed when defendant beneficiary was drunk driving; D had no money,
but two spendthrift trusts. Court agrees that the situation warrants creating an exception to the
spendthrift provision and orders trustee to pay directly to plaintiff.
 Could not happen in FL b/c we list what the exceptions to the spendthrift are, and there is
no tortfeasor exception.
 Discretionary distribution schemes are best, since distributions can be avoided where
money is likely to be immediately seized.
o Even the IRS cannot force the trustee to make a distribution – but when it occurs,
they can force trustee to send it directly to them.
o IRS case: “Best interest” distribution standard; beneficiary was one of the
trustees refusing to make distribution due to IRS lien. IRS claims trustees acting
in bad faith; court agrees good faith is required, but met, since it made no sense
to make a distribution that would be immediately seized.
o If a beneficiary is also the sole trustee, much easier to convince court they are
abusing their discretion.
 Even creditors falling within an exception cannot compel a distribution; they can just take priority
over receiving it when it comes.
 Akin to garnishment rights; gets a court order telling trustee to pay creditor first, should
distribution occur.
 Creditor that provided HEMS services (where trust has HEMS distribution) can argue that
non-payment is bad faith, and get court to compel trustee to adhere to the distribution
scheme.
 A spend thrift/Discretionary trust is a trust that SOMEONE SETS UP FOR YOU
 Third party creates trust for beneficiary’s benefit; only time protection works
 Aka these are not and cannot be self-settled trusts (no creditor protections for selfsettled)
 How to create sprendthrift trust
 You have to have a restriction on the beneficiary that says they cannot in any way alienate
his or her beneficial interest in the trust
 Must restrict their right to do anything with their bundle of sticks; can’t give away or
assign to anyone
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o
o
 Must restrict creditors from reaching the trust
o Have to explicitly say you don’t want the assets used for a creditor’s benefit
 Without these spendthrift restrictions, the trust is not protected against creditors!
 FL: these protections against creditors in Florida, are under FL law, material terms of a
trust – the fact that someone put the time and effort into restricting the trust
o What we mean by material is that we don’t take it lightly and we don’t override it
unless you’re one of the four super creditors
 The fact that a trust has a spendthrift clause is significant to the court in letting you do what you
want to do
 Odds are, the court wont let you change the trust, if it has a spendthrift clause
 MUCH more difficult to modify
 or terminate: you have to convince the court that, notwithstanding the clause, the
modification asked will not put the assets at risk
 Spendthrift clauses are almost boilerplate now
 Again, one of the super creditors could only get what beneficiary has – so if bene is
getting $1k a month, the creditor could garnish this monthly allotment
 Best way to protect against creditors is to make the trust both a spendthrift trust and a
discretionary trust  best way to protect heir who has spending issue
Creditors Again
 Creditors can sue and force distribution is the discretionary standard of the trust is not being
followed  if they can show that the discretionary standard is being abused
 A way for people to avoid this is to choose an objective trustee, corporate trustee is best
 Corporate fiduciary that has totally independent decision making vs. related party
 Hard for a court to tell a corp fid it isn’t acting in good faith
 In Florida, we don’t permit asset protection trusts (Alaska and Nevada do)
Self-Settled Trusts
 Trust that a settlor is setting up for himself or himself and his family members
 Where the settlor is also the beneficiary for some period of time; give one discretion
 They get you no asset protection in FL, period, bc we see them as creditor deceptive only – so we
don’t have them for public policy reasons
 Why we allow creditor protection for ST/discretionary trusts is because you didn’t put the money
in there for yourself! There was a third party who set his up for you
 Types
 Revocable and irrevocable
 Revocable: self-settled trusts that accomplish some type of goal at your death; we’ve
talked about these with pour over wills
o These are self-settled created for yourself, but then maybe at your death it goes to
your spouse or your three kids
o But it gets you no asset protection
o BUT it gets you tax planning and estate planning: as to where your assets might
go
 Irrevocable: where you say, I don’t want to own dis anymore.
o This gets your tax planning and gift and estate planning
o Most common type of irrevocable, self-settled trusts that FL allows
 Medicaid trusts
 Special needs trusts
 These are the two exceptions to asset protection rules for selfsettled trusts in FL because we want to encourage caring for the
disabled and caring for the elderly
o What are these special needs/Medicaid trusts?
 Trusts that allow elderly and disabled to qualify for state benefits – the
trust makes you appear poor, since all of your assets are put in the trust
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
+
Seems like a sham: we do this bc Florida Medicaid only pays for a
minimum certain things
 Bed at hospital
o So if you want a private room
 If you want a little bit better medical care
 So these trusts basically allow to qualify for Medicaid, but then
supplement that shitty ass care
 What’s in it for Medicaid?
 If there’s anything left in the trust at the beneficiaries death, they
get first dibs
o So these are self-settled, asset protection trusts that FL specifically allows you to
do for the purpose of qualifying for da Medicaid
o But Massachusetts doesn’t allow for these! Says they are just a scam  and they
are in trust, we assume these assets are available to you. Damn
 Other type of self-settled trust: used for estate/planning
 Try to save on estate tax; but you don’t need to even do this until you’re over 5.4 mil
TRUST BENEIFICIARITES
o There can be a trust for defined beneficiary or for a charitable purpose
o Types of trusts
 PRIVATE TRUSTS: trusts that name specific people or beneficiaries
 Between the trustee and the private beneficiaries  if the specific beneficiary is named,
these beneficiaries can sue the trust. Enforcement of private trusts is easier because there
are interested parties who care about their monay
 PUBLIC OR CHARITABLE TRUSTS
 Doesn’t name a person but names a specific identifiable purpose (but no identifiable
beneficiary)
 Between the trustee and this public purpose – but who sues the trust if there are no
specific beneficiaries named
o The AG of the state is the person with the sole right to sue to compel that
charitable purpose
o AG in FL is not active in suing Charitable trusts, usually, historically
o There are other states that are better and more capable to bring such suits
o There has to be really pretty egregious behavior for AG to get involved
 Moris Case: were testator leaves entire estate to the bishop to redistribute “to such objects of
benevolence and liberally.” What dafuq does that mean? Many could qualify!
 Court: this is a devise to the bishop, but bishop said, I know I wasn’t supposed to receive
this money outright; testator wanted me to redistribute, so this is precatory trust – strings
are attached
 Heirs sued: and said, if the bishop doesn’t get it, what is the purpose, what do those
words mean? It should come back to us
 So we see this kind of private trust, going to a private person, but kind of seems like
it has a public purpose
 Court ultimately decides that we cant figure out what the testator wanted the bishop to do
with it, and the bishop admits he’s not supposed to have it, so you know what, we are
creating resulting trust, and you bishop must pay the assets out to the heirs at law.
o We could not determine the purpose of the trust, and therefore the trust fails
o Purpose trust
 We defer to the IRS to determine whether a trust is a charitable trust or an honorary trust when it
is a purpose trust
o Charitable Trusts
 Designed to support some charitable purpose; but cannot be for illegal purpose or it is void at
creation
 But what happens when a trust starts out as legal, but becomes illegal over time?
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
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 Estate of Wilson: deals with a trust that was set up to fund scholarships for top white
males in a school system  school had to certify who eligible top male candidates were
o Suddenly become a problem with a public school certifying the top male students
with gender equality. School went to court to ask for help
o Court: while not including women is not part of norms, it is NOT illegal for
someone to set up a trust for men that is discriminatory (duh). One could just as
easily be set up for all women. So ct. decided they aren’t going to fix this bc
there’s nothing to fix/not illegal. So the public school had to make a change and
have someone else do the certifying, but otherwise, the trust was fine for private
purposes
o Point: we see the court doing its best to try to keep the purpose in place, t
Can exist into perpetuity (trusts usually limited to 360 yrs in FL)
 As long as the money doesn’t run out, or the person doesn’t run out?
Court will stretch to save charitable trusts, rather than let them fail.
Must have some identifiable charitable beneficiary or purpose
 Except where trustee has power to choose the charity or charitable purpose.
 But can have broad discretionary standards: for religious education generally OR can have
an even more specific focus: for religious Jewish education for students in So Fla.
o But the class cannot become too finite where it is impossible to fulfill a charitable
purpose – kind of like, narrowed to the point where you are identifying private
citizens and so it starts to look more private than public/charitable
Charitable purpose can be fulfilled several ways
 Tax method: naming 501(c)(3) tax-exempt charitable organization as beneficiary
 Purpose: name an IRS-sanctioned purpose for the trust (religious, scientific, educational
automatically qualify; others might as well, but require permission).
 Cannot engage in any governmental lobbying
 However, can have a separate but affiliated lobbying arm
 Where charitable purpose is private purpose in disguise, will fail.
Leftowitz: University could sell old research building that had been left in trust to it, but the
proceeds also had to be applied in accordance with intent of original donation.
 If you wanted to have a “restricted gift,” you generally must be very explicit about the
restrictions.
Options for modifying a charitable purpose trust
 Again, the court will stretch to hold a charitable trust in place – for public policy and for
the public good and money that comes into play; these social services
 Cy pres doctrine: broad powers given to the probate courts that allows for modification
of charitable purpose when it has become illegal, impractical, wasteful, or impossible.
Only powers allowed for charitable trusts
o Court will try to keep trust as true as possible to donor’s original intent
 If the donor would’ve wanted trust only to exist as originally
envisioned, then it must fail.
o Too impractical: trust for veteran survivors that go to FSU from Taylor country
that go to X church  can’t find them!
o Evans v. Abbey: Park left for white use only returned to family after segregation
became illegal (probably good ole’ boy network getting property back).
 There were three options: (1) get us out of this and get new private
trustee who can handle the segregation; (2) give us a resulting trust, the
old trust now fails, and the park/assets go back to Senator Bacon’s estate
for his family; (3) you could modify the trust and broaden the standard of
permissible people allowed in park, using your Cy pres power
 Ct focused on settlor intent: it was for creating a park for white people;
and court couldn’t fulfill this purpose (injecting state action to allow
continued discrim?) so the trust must fail  back to family
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o
+
Trammell: educational fund left aside for poor white children interpreted as
having main goal of helping the poor, not whites. Again, it was a public
university that got to the point where they could no longer administer: went to
court and said, use your Cy pres power plz. Court found the settlor intent was
really focused on helping poor kids in general; white wasn’t material part
 Non-charitable purpose (aka “honorary”) trusts can exist, but are limited in duration to 21 yrs.
 These are the other subset of charitable trusts – don’t get you a charitable deduction
o Common: pet trusts or trusts to place flowers at your mother’s grave, etc
 Given less flexibility since they exist for private benefit
o Only 21 years; but can be renewed
o Also have an exception for pets that live longer than 21 years
 NOTE: you could broaden the language of a pet trust, and it can qualify as a
charitable trust! “take care of all the boxers in south Florida”
 FL- unique to FL, we have pet trusts, which are honorary trusts. “If I die my pets will be
properly taken care of”  pet trusts don’t exist in all 50 states
o Side note: FL also has no income tax and we have Medicaid type trusts (give all
your money to this vehicle and tell Medicaid you poor) lol way to make yourself
poor  I guess the point is these are FL attractions, and we want ppl’s money!
 Thompson case: testator leaves 1,000 pounds to a friend for purpose of promoting fox
hunting – not a charitable purpose (could have been as it is historical, but it wasn’t set up
right). So the trust fails from a charitable perspective and it also didn’t ascertain any
private persons so it also failed as a private trust; yet it wouldn’t necessarily fail if it was
couched as a private trust
o So the court is asked to intervene and make it honorary trust – the court created a
resulting trust and said you know what, this trust needs to come back to the heirs,
or the money does, so the court created resulting trust
o Other trust types
 Medicaid:
 Allowable trust that makes you appear poor for Medicaid purposes.
 Must have very particular distribution terms:
o Paying for things that Medicaid does not
o Anything left in trust at death goes back to the state, up to the extent necessary to
reimburse for medical expenditures.
 Special need: where you might need to qualify for state assistance, but also want to keep some pot
of money for other things.
 Special purpose: ex: a trust for care of your pet
 Asset protection: not allowed in FL, but used in a few jurisdictions by people in high-risk
professions as a place to park assets so that they are protected from creditors
 Business: made to create a business
 Land: for managing real estate
Modification & Termination of Trusts
o REMEMBER: we focus on, and construe according to settlor intent (much like testator intent)
 If the settlor is present and available, we have the person right there and why they set up the trust,
what they had in mind, etc. so we could figure out if the trust is no longer necessary
 But we see in FL a loosening from the focus on the settlor and beginning to focus more on the
living beneficiaries
 Why: FL statutes focus on how long ago the trust was created; what has happened since;
the longer we allow trusts to go on, the more flexible we have to be – living instruments!
o Default assumption in FL is that trusts are revocable, and the settlor retains ownership and control rights,
in which case they can change the trust howsoever they please.
 Revocable trusts become irrevocable when the settlor dies, unless the trust contains a provision
that gives the power to amend to a new person.
o Sometimes consent and/or notice only has to be provided to “qualified beneficiaries,” who are one of
three kinds of individual:
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o
o
1)
2)
3)
4)
 Someone currently entitled to receive principal or income from the trust
 Someone who would be a current beneficiary if the current beneficiary died
 Someone who could receive a distribution if the trust ended
Types of modification
 Judicially modified
 For poor drafting – drafter didn’t consider the consequences
 Or tax code has changed, etc.
 Non-judicial (all beneficiaries and trustee consenting)
 With all interesting parties – they can get together and modify under consensus
 Non-judicial action unilaterally by the Trustee
 I’m doing this and I don’t need the beneficiaries permission or the court’s
6 categories of reasons for permitting modification/termination of a trust in Florida
Unanticipated Change in Circumstances
 Must be an unanticipated change that defeats the material purpose of the trust.
 Settlor created 10 years ago and thought he knew all these things, but he didn’t – didn’t
plan for all children to pre-decease him or for his child to be disabled
 Typically only trustee or beneficiaries can petition court under this statute; any interested person
but they must state the reasons why: Must show how you want to modify
 “we think trustee would be better to distribute as x”
 or the trust is just serving as income for the lawyers and CPAs and isn’t really benefitting
me, the beneficiary
o Court must consider 2 things before termination or modification:
1) The purpose of the trust and intent of the grantor
i. As usual, the donor’s intent is the polestar of legal analysis
2) Any spendthrift trust provisions, and possible consequences of modification within that
context
o Court does not have to abide by the settlor’s intent or spendthrift ramifications,
but it must consider them.
 Can request:
 Amendment
 Termination
 Direction from the court to the trustee
 For the court to prohibit a specific action
The purpose of the trust has become illegal, impossible, wasteful, or impractical
 Waste: if you can do it alive, can’t you do it at death – burn the Rembrandt/ salt the fields
 UNDER FL law, we may grant you’re the authority to modify the trust (restrict test freedom) bc
the court has determined that society is better off if we don’t follow through with this
 So we see the shift here from settlor intent to what is best for living/beneficiary
 Do we salt the fields so that they can’t be used and enjoyed years later?
 Or illegal trust – discriminatory – maybe it should just go back to the settlor’s family
The purpose of the trust no longer exists.
 You had a good cause, but the problem has been alleviated – Dupont trust for crippled children,
no more polio, so we alter for other childhood illnesses, etc.
 If trust existed to keep creditors away and they have all been paid, we don’t need trust anymore
Uneconomical/Wasteful to continue to operate
 Two ways to modify (ripe for exam essay) – unilateral termination by trustee or a beneficiary OR
trustee can petition the court for modification
 This statute permits trustee to act unilaterally, on their own accord; don’t have to go to court, to
terminate a trust, so long as they follow the criteria.
 2 elements where trustee can act unilaterally:
 Trust must be worth < $50k
 And those funds are insufficient to justify the continued administration of the trust
 You could make an argument that pet trusts are still work it, etc
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If trustee terminates the trust, must give 30 days’ notice to the qualified beneficiaries.
If trustee wants to modify, must seek court’s permission.
 Unusual, but may occur if cheaper management options are available – like not a
corporate trustee, etc.
 OR the beneficiary or the trust could go to court to ask permission to modify/terminate
 “judge, we’d like you to modify the corporate trustee bc he’s too expensive”
 Again, the court would have to consider the same consequences of the modification under
the statute before granting!
5) Need to terminate to achieve the Settlor’s tax objectives
 Most commonly used justification.
 Allows settlor, trustee, or beneficiaries to ask court to modify the trust to satisfy tax objectives
 Must show: that there’s been a change in the tax law, or an error, etc. AND you have to
show that the objective that your are trying to achieve was the probable intent for the
settlor
o Looser standard than other stat. requirements of show of intent
o Can almost always meeting this goal – can even be a new rule that you can say,
yeah know that we have it, the settlor def would have wanted this, etc.
 Any changes that occur are retroactive to the date when the tax was incurred, and the IRS is fine
with this.
 IRS gives full faith and credit for the modification of trusts – they honor it and give the tax
objective a trust was going for in first place
 Helps lawyers with their careers and goals for their clients
 Covers their butts from malpractice & recognizes the code is ever changing
 ANY INTERESTED PERSON CAN petition: trustee, beneficiary, charity – and court has power
to retroactively amend
6) Best interest of beneficiary
 Trustee or beneficiary can petition the court – anyone who is interested
 Hazy standard, and best interests of different beneficiaries may not align.
 Where we see the shift from caring about settlor to really caring about beneficiaries
 Only applies to trusts that were created after 2001 and which did not opt for the shorter rules
against perpetuities
 Statute can only be used in situations where:
 The trust became irrevocable after 2000 (so Jan 2001) AND it has to opt into the longest
RAP, the 360 year rule
 Trust was made post-2001 (cannot use for trust made pre-2001 .
 Trust used the longer rule against perpetuities (360 yrs)
o Rationale: if you will be binding the assets for longer period of time, we want
more flexibility
 Trust does not expressly forbid modification
 Settlor can forbid use of the statute and disallow changes under the best interest rationale.
 Court must consider:
 Settlor’s intent
 Spendthrift implications
 Whether there has been a change in circumstances that was genuinely unanticipated
 Whether any change is in the best interest of the beneficiaries as a whole
 Court has much discretion in this arena, but also must explain itself well.
 How can they modify: all they have to do is show that it is in the best interest of benes
 Court can’t completely ignore settlor’s intent BUT will go for the best interest of the
benes if the decision isn’t completely unreasonable in light of settlor intent
o Non-judicial modification of trusts
 To use this provision/statute it must be a trust:
 that became irrevocable after 2000 (January 1, 2001) AND it has to opt into the longest
rule against perpetuities, the 360 year rule
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o So we focus on when the trust became irrevocable and what RAP the trust uses
Permitted under certain circumstances; generally 3 ways one can modify trust without court’s
permission:
1) Trustee terminating the trust because it is uneconomical
2) Where all the parties (trustee, qualified beneficiaries) agree that the change should be
implemented, AND the settlor is deceased
3) Decanting statute (came from Fipps decision)– where trustee has full, unlimited discretion to
distribute both principal and interest whenever they believe it is in the beneficiaries’ best interest,
they can “decant” the trust, or move everything into a new trust that better serves the original
purpose. You pour into a fine, better polished trust – new and improved; happens when docs
become antiquated
 Do not have to treat all the beneficiaries equally
 New trust can have whatever distribution scheme trustee wants
 ONLY the trustee can do this if under the statute, the trustee has the absolute power
to distribute the principle in his or her discretion (purely discretionary standard)
Limitations on Decanting:
o Cannot add any new beneficiaries (though can exclude prior ones) no new class
 Can’t go from “for my children” to “to my children and their
descendants”  but you can exclude current beneficiaries
o The new trust cannot reduce or eliminate a fixed right
 ex: if old provision gave grantor’s descendants all income or for HEMS,
then that would have to carry over
o The new trust cannot cause new tax inclusions, or lose tax benefits.
 Cannot lose, extend, or eliminate existing tax benefits
 You can’t decant a charitable trust into a non
 Can’t decant a marital trust into a non
 BUT you can update so that you qualify for certain provisions that
expired or extend the benefits that were already in place
 “we intend to comply with new tax code”
 Must give 60 days’ notice to all qualified beneficiaries, and show them the
provisions of the new trust; include a copy with the notice
o QBs can go to court to attempt to stop the decanting, but have no say over the
provisions.
 They lose 9/10
 Also note, that if a beneficiary is being cut out, they must be notified
 Reasons for decanting might include:
 Altering defunct language – poor drafting – legaleeze
 Taking advantage of new rule against perpetuities
 Removing trustee discretion (so as to limit beneficiary requests)
 Eliminating beneficiaries – a problem beneficiary
 Separating the funds into different trusts for different beneficiaries
o Useful for when some are more of a drain than others, or have special needs
(such as Medicare/spendthrift trust).
 Administrative reasons – the old trust didn’t name successor trustee – modify or
update trustee powers, etc.
Severing and combining trusts
 The statutory permission to sever a trust or combine a trust is 736.0417
 This statute allows a trustee to take multiple similar trusts and combine the money
into one big pot OR take the one big pot trust and divide it into multiple shares
 We do this for administrative convenes
o Maybe it's easier to file one tax return and deal with one accounting in any given
year
 So you will combine them
o Or maybe it's better for the beneficiary to break up into small little pots

o
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o
We really just do this so that it is convenient for whatever reason
More convenient to have one pot of money esp if there is a needier beneficiary
and the others are willing to pull the money
o OR what is a child beneficiary is unfairly drawing on the money and dipping into
the allotted amount fo the other siblings
 Maybe we'll sever the trust so that each child is given their portion and
it’s fair
 Kind of just depends on the parents
 Like my parents would do a pot so that mike could have help lol
 Some parents want it to be severed and fair
This allows the trustee to do this -- the trustee has the power to do this, he just needs to send a
notice
 And again if the beneficiary has a problem with it, he has to go to court and state
why, etc.
o
Termination of trusts
 Termination by trust provision
 Trustee must provide final accounting, how much money is left and what they’re
going to do with it.
 Only perpetual charitable trusts don’t include termination provisions
 No special permission required to end trust this way.
 “at this date, or when my son is 35, payout the rest of the trust and then terminate”
 Purpose of trust no longer exists; has been fulfilled
 Difficult to get court to terminate charitable trust on these grounds, and court will
often stretch to find other related purposes
 If it’s an educational trust, and everyone has been put through school or there is no
longer a purpose, we can collapse and pay out
 Termination by consent of the trustees and beneficiaries:
 FL allows all interested parties to agree to end a trust, if the settlor is deceased.
 If settlor is still alive, you must go to court for termination
 Exception
 Even when the settlor is still alive, we permit under the common
law in FL, non-judicial, consensual termination of trusts if
o The termination of the trust would not be inconsistent
with the settlor’s material purpose of creating the trust
o Material?
 Non material: spendthrift, or drug addiction
provisions bc these have become boilerplate
 Material (court considers material by default):
any sort of restriction on the time or date of
distribution OR any stated sort of purpose of the
trust (medical support, education) OR unless you
prove other wise, a spendthrift provision is
material! have to prove as boilerplate
 Judicial termination
 Remember, that the ct. can terminate trusts after application by the trustee or the
beneficiary and remember that the trustee can unilaterally terminate
NONECONOMIC TRUSTS
 Termination by revocation by the trustee or the Settlor
 Some intentional action – most common way and there’s a payout by the trustree
and he distributes the principle of the trust
 Can be accomplished by:
 Writing
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 Destroying trust document
 Retitling assets & removing funds
 If trust document specifies that a particular method must be used, then you must
abide by that.
o Common law termination & modification
 Modification and termination may always be done by mutual agreement of beneficiaries and
trustee, so long as not inconsistent with material purpose of the trust
 Loose and broad standard
 If inconsistent with material purpose, must seek court’s approval
 Even if consistent, must have settlor’s permission (or the court’s, if settler is
deceased)
Implied (Equitable) Trusts
o Where the facts and circumstances call for creation of a trust
 May come about because of lack of strict adherence with trust statute, or some equitable reason
 Usually we see when someone fails to comply with SOL or statute of wills
o Constructive trust:
 Trust created through application of equitable principles
 Usually restitution-type trusts, meant to right a wrong.
 Generally requires there be some “bad guy,” fraud in the procurement of the
transaction, and/or breach of a confidential relationship.
 Aren’t intended to address mere mistakes (though courts may misuse them for this)
 Usually has to be something specific you are trying to encapsulate
 Must have an identifiable asset (res) around which trust can be constructed
 Tracing aspect – must be able to trace exactly what the asset is.
 Cannot get trust put around sum of money; must go to court for that
 May not be available if person is judgment-proof
o Cash is hard for courts  will do if someone can point to a specific account or if
some identifiable thing was wrongfully bought with someone’s money
o Sometimes we cant make you whole – if you invested the money, it was put in a
house, and not the house is worth noting, etc.
 We need (1) bad action or some wrongdoing and (2) some sort of equitable remedy or
restitution
 Wrongdoing = fraudulent inducement, or breach of confidential relationship
 Fairchild case Able: Guy gets in bar fight and starts dumping assets on family to avoid liability.
Brother holds onto property rather than transmitting it to Able’s heirs, as agreed (there wasn’t
anything in deed about conveying back). Court refuses to create constructive trust in this
situation, since everyone had dirty hands and equity isn’t appropriate under those circumstances.
Lets the facts stand.
 Cf. Sullivan: Boyfriend/girlfriend live together, unofficially buy house together, but only in bf’s
name, in order to get better VA benefits. After breakup, bf denies gf had any equity in home.
Court finds that there was abuse of confidential relationship, and fraud in the procurement, since
gf would not have contributed to house had she not believed she would also have equity. Court
gives her half ownership. Could’ve gone either way; cheating VA may not have been egregious
enough to keep court from getting involved.
o
Resulting trusts
 Where facts imply that creation of trust was what was intended.
 Can occur when:
 There is a purpose for the trust that is now impossible to fulfill/illegal
 Where the purpose has been fully performed
 There is a “purchase money resulting trust” – where purchase money was tendered
but title wasn’t received for some reason.
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
I gave you money with expectation that money would be used in a
certain way – brother was given money and was supposed to put the
house title in both his name and sister’s name but he didn’t
 A constructive trust would have given her half
 But a resulting trust would have given her all of it when her
brother passed away
2 exceptions:
 Courts are intolerant of intra-family transactions and will not
intervene absent sufficient evidence that creation of trust was
intended
o Could doesn’t want to get involved in interfam issues
 Where the whole purpose of the trust was illegal to begin with
and an equitable transfer would be illegal
o Money for pot farm – you didn’t use it for why I gave it
to you, but I cant go to court for remedy bc it was
already illegal

+
Bishop of Durham:
 Point is that a trust will fail without identifiable beneficiaries to which the trustee
owes duties.
 Exceptions for charitable purpose trusts and instances where trustee gets
to choose beneficiary.
 NOTE YOU CAN PLEAD BOTH A CONSTRUCTIVE TRUST AND A RESULTING TRUST
SO THAT THE COURT CAN DETERMINE WHICH ONE WOULD BE BETTER
Trustees & Trust Management
o Will not replace a trustee unless it is impossible for them to fulfill their duties.
o Types of trustees
 Corporate: most banks have a trust administration section.
 Pros: good investment and management skills, unbiased, more of a backbone when
standing up to spendthrift beneficiaries
 Cons: Can be much more expensive, and are removed from the family situation and
may not know about money being misused by beneficiaries.
 Individual: Usually less financial skills, but more intimate knowledge of the situation. Could be
biased for/against certain beneficiaries.
 Independent: tax term – someone the IRS deems independent enough to manage the trust without
tax consequence. Could be corporate or individual. Requirements:
 Cannot be related to or a subordinate of the beneficiary or settlor of the trust.
o Can have multiple trustees, but entails multiple fees and requires a majority to make a decision.
o Limits on who can be a fiduciary:
 Executors: felons cannot serve, and there are limits on people from outside the jurisdiction.
 Defaults: spouse, then descendants
 Trusts: No limits, other than corporate trustees must be licensed
 Default: If none specified, then defer to beneficiaries to name someone, with court
approval.
o Removing a trustee
 Must show egregious behavior, not merely be engaging in Monday morning quarterbacking.
 Must be a serious, damaging breach of trust, or some mental incapacity.
o Mere dissatisfaction or annoyance is never sufficient
 Can remove trustees if there are multiple and there has been a complete breakdown in their ability
to work together.
 New provision for removing big, expensive trustee in favor of smaller, more efficient one when
there has been a change in circumstances.
o Compensation of Fiduciaries
 Sliding scale percentage of assets; some % of first $X, some smaller % of the next $Y, etc.
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
Can charge more than statutory amount, but must justify it to court & beneficiary
3% is the starting point for dealing with ordinary assets, but statute provides for
more for “extraordinary services”:
 Filing tax returns
 Dealing with elective share proceedings
 Dealing with will or trust contest
 Difficult situations such as hoarder homes, ongoing businesses, etc.
o When there are multiple fiduciaries, all have to split the value of 2 full fees
(~6%)
 Exception: when a trustee is hired for their specific skillset, court may
allow for extra.
 Attorney’s fees: can charge either hourly or by percentage.
Fiduciary Duties & Powers
o Both the law and the will/trust may impose duties
 Some may be waived, some not
o Infer from trust document who the fiduciaries are, and what their duties are, and how strictly the settlor
wanted things enforced.
 Duties are owed to both the settlor and the beneficiaries.
 Attorney general can enforce charitable trust
 If beneficiary cannot speak for themselves (because they are a minor, incompetent, unborn), we
allow someone to speak for them (“virtual representation”).
 Only possible of there is no conflict of interest
 Personal representative can speak for both estate and beneficiaries.
 Parents can speak for children, unless there is conflict of interests
o If there is conflict, an ad litem is appointed
o Trust protector: someone the trust document names to represent the interests of
children, in order to avoid expense of having ad litem appointed
 Where there is a class of equally treated, like-kind beneficiaries, one competent one
may speak for the entire class (if all other beneficiaries are incompetent; everyone
speaks with their own voice, if able).
o If there is differential treatment/conflict of interest, ad litem must be appointed
o Duties
 6 Duties:
1) Duty to administer the trust in accordance with its explicit terms
2) Duty of loyalty
 Must act in good faith when administering the trust
 Decisions must be solely for benefit of beneficiaries
 General rule: trustee can make no personal profit or take personal advantage of any
transaction.
 Automatic breaches of loyalty: transactions involving the trustee, their
spouse, a relative, their business, or any agent of theirs.
 If there is a conflict of interest, it is a per se breach of the duty,
and the court will not look into the details
o Doesn’t matter if transaction was fair/legitimate
o Applies to corporate trustees wanting to invest in their
own funds (though settlor commonly approves this)
 Any such transaction is voidable at election of any of the
beneficiaries
 Remedies: void transaction, rescission of deed, damages, remove
trustee, claw-back of fees
 Settlor can provide for self-interested transactions with the trustee if they are very
explicit about the particular transaction and property involved.
3) Duty of impartiality
o
+
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
Must treat all beneficiaries fairly and without bias, albeit not necessarily equally
 Trust terms/intent of settlor control whether all must be treated equally
o Treat common beneficiaries in common manner
 Applies to investment decisions as well; must consider effects on income and
residual beneficiaries
 Dennis v. Rhode Island Hospital: Real estate was declining in value, but
had high rent income. Was breach of duty to hold onto it as value steeply
declined, to the heavy detriment of the residual beneficiaries in favor of
the income beneficiary. Should have invested in way that benefitted both.
 FL: trustees have “power to adjust” – make adjustments to the
principal/income allocations.
 In Dennis case, could have held onto the property but redirected
some of the rental income back into principal to balance out loss
in value.
 Power to convert to unitrust (uniform trust): allows for uniform rate of
distribution per year, rather than “all income.” Ranges from 3-5%; effect
is to give income beneficiary more in down years, less in up years, but
eliminates volatility in distributions.
 Trust says: “all income to spouse, remainder to beneficiaries.”
Conversion from ranging income to flat 3-5% — puts on steady
stream
 If beneficiaries object trustee can go to court (and will usually
win permission)
4) Duty to account & inform beneficiaries
 Courts will always enforce, but usually no penalty if late.
 Must provide all the information the beneficiaries need in order to determine
whether trustee is doing their job properly.
 Once trust becomes irrevocable (settlor dies), within 60 days trustee must inform
the qualified beneficiaries that:
 They are a beneficiary; who created the trust; what the terms of the trust
are; what their beneficial interests are, etc.
 Besides rights to lots of automatic information, beneficiaries can
make reasonable requests for further info
 5 required schedules:
o A) assets
o B) gains/losses
o C) disbursements (fees, expenses, taxes, CPAs, attorneys, ordinary expenditures)
o D) distributions (what’s paid out to beneficiaries)
o E) whatever’s left/assets on hand
 Beneficiaries will be considered on notice of anything revealed by accounting, and
statute of limitation will begin to run
 Normally 4 yr SOL, but can be shortened to 6 months by addition of a
special paragraph on the accounting (which almost everyone uses, unless
they know there is a problem and don’t want to spur an immediate suit).
 Waiver: settlor cannot waive
 Beneficiaries can waive (and may want to due to expense) if there is
unanimous agreement
 EVERY qualified beneficiary is entitled to the information, so
agreement must be unanimous
 Trustees may force beneficiaries to sign off on accounting before making a
distribution, so as not to deplete the trust fund and then potentially be subject to
costly lawsuit.
5) Duty to prudently invest
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o
Must use reasonable care and precaution in making investment decisions, and
exercise due diligence/be informed.
 But no second-guessing of reasonable decisions that didn’t work out.
6) Duty to diversify
 Related to prudent investing; diversification reduces risk
 Settlor may want saturation in a particular asset (family legacy property or
business)
 Must include a direct and explicit waiver in the trust document itself
 Duty is immediate – as soon as you’re in control of trust, must review assets,
consult with advisors if necessary, and figure out what needs to be kept and what
needs to be sold.
 James: Trust was oversaturated in Kodak stock; price plunged, and
trustee was liable for difference between end price and price they
should’ve sold at, plus interest.
 Waiving duties
 While most of the duties are waivable, default is that settlor does not; must be very
clear and explicit to do so
 The settlor cannot waive the duty to account and inform
 We need beneficiaries to have all the information necessary to
make an informed decision about waivers
 Can appoint a trust protector to represent the beneficiaries and
receive the information, however
o Thankless role – no fees, and potential liability if trust is
mismanaged
 The beneficiaries can waive any of the duties
 The trustee can always go to court to ask for guidance about management (whether investment is
ok, who’s a qualified beneficiary, whether conflict of interest is ok, etc.)
 Unnecessary if every qualified beneficiary consents, but if some are holding out
then may be safest avenue.
Trustee Powers
 Most trust documents explicitly spell out the powers of the trustee
 Often are broad, to give flexibility in management
 FL statutes also provide default powers (so long as they don’t contradict trust terms)
 Power to adjust: can adjust between principal and income for impartiality’s sake
 Limitations:
o If income beneficiary is entitled to a specific amount, then that is what they must
receive.
o Cannot make adjustments that will disqualify the trust for charitable deduction
o Cannot use power if trustee has a conflict of interest (i.e. is a beneficiary)
 Power to direct: power retained by the settlor to retain some limited control over assets.
 Trustee must follow directives from settlor (or their designee) pertaining to the
asset, unless “manifestly contrary” to terms of trust or would cause trustee to
breach their duties
 Examples: settlor may want to give someone power to:
o Terminate trust
o Direct management of specific assets (family business, family home/property)
o Delegation of substance abuse issues (giving someone closer to beneficiary
power to cut off distributions)
o Discretionary distribution decisions for special needs child
 Power to Delegate: held by trustee; may delegate some of their tasks to people with special skills
who are better suited to perform them (i.e., tax advisor, or stock investor)
 Must do 2 things to delegate:
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
Do due diligence when hiring the person  i.e., did you check
references, did you interview them? investigate ability and credentials
 Act in good faith
 After Hiring: Duty to Reasonably Supervise
 Negligence Standard in determining whether due diligence or supervision was
sufficient
o Must monitor what the delegate is doing or may face liability if something goes
wrong.
 Trustee may never delegate: (1) Duty of Loyalty (2) Account and Inform to
beneficiaries  just because you farm another duty out, you are not absolved from
these duties
May not delegate a task you were specifically hired to do
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