Wills & Trusts Outline – Michael Higdon Spring 2021 (Grade: 4.2)
1. Exam notes
a. Dig deeper and think of overlapping issues
b. Mention that basically all presumptions (intestacy, changed circumstance rules, etc.) are
based on an average testator’s presumed intent
c. Make sure to draw connections between the operation of wills and trusts!
d. Things to make sure I say
i. Revocable trust = nonprobate will
ii. Wills are ambulatory documents
iii. List wills formalities
iv. Worst evidence rule
v. Rules of construction try to determine an average testator’s intent
2. Freedom of Disposition
a. Policy behind broad freedom of disposition:
i. America is focused on personal freedoms
ii. Adult children may be undeserving
iii. Encourages taking care of the elderly
iv. Testator is in a better position than a court to determine who most needs property
v. Encourages people to take better care of their property as opposed to those who can’t
control disposition upon death
b. America vs. the rest of the world
i. We give the dead hand broad latitude
ii. Many other countries do not allow disinheritance of children
c. Tension with the living
d. Sharipa v. United National Bank: breadth of freedom of disposition
i. Even where will limited plaintiff’s freedom of marriage, the court upheld it. They
will only throw out wills that offend public policy.
e. Freedom of disposition is a positive right granted by statute rather than a natural right.
3. Intestacy
a. Basics
i. Arises when (1) die without a will, or (2) not every piece of property is accounted for
ii. Presumed intent sits in for the intent of the testator.
1. Favors spouse, children, and maybe parents of the decedent
iii. Legislature tries to determine what the typical testator would want if they had
written a will
1. State is determining which familial relationships are more worthwhile than
others in their view.
2. Families are changing quickly with lack of marriage and mixed families. This
leads to many open questions about policy.
iv. Favors surviving children and spouses in most states
v. Determines who can challenge the will (typically those who either are in the will or
would take under intestacy statute)
vi. Reasons people don’t get wills: (1) some are OK with intestacy statutes controlling;
(2) some don’t have much property; (3) uncomfortable to think about death
b. UPC 2-102: surviving spouse gets the entire estate if all kids are shared with the decedent
and the surviving spouse has no children from other relationships
c. Near-simultaneous death (Survival)
i. Traditional approach
1
1. Determine who died first and give their property to their heirs, even if that is
their spouse who died moments later (Janus Tylenol murder case)
2. Rely on gruesome medical evidence regarding brain death, etc.
ii. New proposed standard
1. Survival by 120 hours for estate to pass (in most states)
2. Avoids gruesome medical evidence and unjust outcomes
d. Representation – intestate heir represented by their descendants (will be on exam)
i. English per stirpes (common law rule)
1. Divide evenly with each line of descent
2. Vertical equality: each line of descent is treated equally
ii. Modern per stirpes
1. Each line of descent treated equally (English) beginning at the first
generation with a living taker
a. I.e., If all of T’s kids are dead, split equally among grandchildren
2. Then English per stirpes after first generation with living heir
iii. 1990 UPC (per capita at each generation)
1. Divide at first level with a living heir just like modern. They get their share
just like if their relatives on the same level were alive. Then divide per capita
at the next generation. Repeat until estate is exhausted.
2. Horizontal equality
iv.
e. Consanguinity (Higdon says this is not a huge deal)
i. Only comes into play when there are no parents, children, or spouse
ii. Two approaches
1. Parentelic = hop to next column, exhaust options, then move to next column
a. Nearest ancestor you have that has a descendent living
2. Degree of relationship = Find who is alive in the chart. Who is related to the
closest degree? Equal numbers share.
2
iii.
Disinheritance
i. Common law: explicit disinheritance not enough if partially intestate
ii. Modern: explicit disinheritance is enough to fully disinherit, even with partial
intestacy
g. Who are “children”?
i. Modern families are often mixed families with prior marriages, cohabitation
relationships, and children from prior relationships.
1. Raises questions of who counts as a “child” under intestacy
ii. Most intestacy statutes DO NOT treat step-children as children.
h. Adoption’s effects on intestacy
i. Adopted kids inherit through intestacy just like biological kids.
1. “Adoption is a legal rebirth.”
ii. Adult adoption
1. Many states do not allow adult adoptees to inherit THROUGH their adoptive
parents, only FROM them directly. (Minary)
2. Reasons:
a. Same-sex couples often did it before Obergefell
b. Adopt spouse to keep parent from contesting your will
c. Formal recognition of a stepparent-child relationship
3. Equitable adoption = contract for adoption that was never fulfilled
a. Policy concerns:
i. Equity for adoptee who would otherwise not inherit under their
de facto parent’s will
ii. Concerns about fraud (the testator is dead)
b. Approaches
i. Courts will usually order specific performance on the contract
1. Adoption contracts typically aren’t even legal. Focus
here is on equity.
ii. Equitable estoppel:
f.
3
1. (1) Representation; (2) Reliance on the representation;
(3) Harm as a result of the reliance.
iii. Minority approach: if relationship looks sufficiently parentchild-like, then the court will treat the child as adopted.
iii. Inheritance from biological parents
1. Adoption severs ties to biological parents legally
2. Exception where adopted by one biological parent’s new spouse
i. Posthumous children
i. Children in utero: treated as in being at time of conception for purposes of estate
distribution (10 months prior to birth)
ii. Posthumous conception (frozen sperm)
1. Requires claimant to prove affirmative consent to (1) conceiving a child with
their gametes after death and (2) supporting children out of their estate.
2. State interests at play: (1) best interest of the child – it’s not their fault; (2)
orderly administration of estates; (3) reproductive free will of individuals who
no longer control their gametes; (4) lack of proof of who parent really is
j. Advancements and Bars
i. Advancements:
1. Legatee’s intestate share charged against property they received when they
were alive
2. Common law: Presumption that gift given during life was an advancement
3. Modern: Assume gifts were not intended as advancements unless there is
evidence showing otherwise
ii. Bars to inheritance
1. Slayer rule
a. General rule: if you intentionally kill someone that would have
otherwise left you property (intestate or testate), you will not inherit.
i. Slayer treated as predeceased
ii. I.e., Involuntary manslaughter does not apply the rule
iii. Courts vary as to whether slayer’s descendants take their
share
b. Approaches
i. Slayer does not get their share under law of unjust enrichment
ii. Slayer gets the share under application of the statute
iii. Constructive trust in favor of person who truly deserves it
1. These give legal title to slayer as trustee but makes
parent the beneficiary (equity)
2. Unworthy heir rules
a. A few states bar elder abusers, but most unworthy heirs will take
their share under intestacy.
b. Policy: courts are unwilling to substitute their judgment for the
judgment of the testator (or presumed judgment in intestacy)
3. Disclaimer
a. Would-be takers can opt to not take their share; it passes to the next
heir
b. Reasons: (1) avoid taxes; (2) avoid creditors
k. Constructive Trusts
i. Equitable remedy that comes up in restitution where courts are forced to make a
distribution pursuant to statutes, but they think it is inequitable.
4
ii. Unjust taker as trustee is compelled to give property to equitable title holder.
iii. Common situations: (1) slayer rule; (2) attempted revocation on a copy of a will; (3)
testator breaches contract to devise certain property
4. Will formalities (execution)
a. The functions of will formalities
i. Evidentiary function
1. Proof that the testator actually intended to dispose of their property this way
2. The chief function
3. Worst evidence rule = the testator is dead. We can’t ask them what they
wanted. We try to fill in the gaps but do not want to assume too much.
ii. Channeling function
1. Standardization:
a. Makes wills easier for testators to draft
b. Makes it easier for judges to determine what is going to whom and
whether the will is valid
iii. Cautionary function
1. Impresses the seriousness of the situation upon the parties
iv. Protective function
1. Lowering chance of fraud or altering a will (preserving T’s intent)
2. Harder for someone to assert undue influence
v. Expressive function
1. Last opportunity for a person to make a statement to their loved ones
b. Policy
i. Balancing risk of false positives with risk of false negatives
ii. Need to exclude bad wills while not excluding good wills; a difficult balance to strike
c. Strict compliance (majority rule)
i. Exact compliance with the state’s listed formalities (in Wills Act)
1. Intestacy wins even without proof of fraud, coercion, etc. (Casdorph)
2. Including attestation clause next to witness’s signature raises a presumption
that the will was validly executed
ii. Policy reasoning:
1. Slippery slope: where do they draw the line on what is OK and what isn’t?
2. Court does not have to do a fact-finding mission every time a will is contested
3. Allowing substantial compliance can lead to fraud
iii. Common Wills Act-required formalities
1. “Presence” of subscribing/attesting witnesses
a. Approaches
i. Line of sight requirement
1. Must be within line of sight of witness (if witness
wanted to look; doesn’t hinge on whether they actually
looked)
2. One witness being in the other room at the time the
testator signs is not enough (Groffman)
ii. “Conscious presence” requirement
1. Must be somewhere within comprehension of T/witness,
using any of their senses
a. Being on the telephone is usually not enough
5
iii. UPC: Witness must sign within reasonable time after T
acknowledged signature, but must actually see T acknowledge
or sign
2. Signature requirement
a. Some states merely require a signature
b. Some require subscription:
i. Signature at the very end of the will
ii. If provisions are added, some states will throw out the whole
will while others will just not effectuate those added provisions
iii. Policy: Channeling function; ensure provisions aren’t being
added
3. Disinterested witnesses
a. Common law: signing by interested witness invalidated whole will
b. Purging statutes: Interested witnesses signing does not invalidate as
long as there are enough disinterested witnesses for compliance with
Wills Act formalities
i. If lacking proper number of disinterested witness, the
interested witness can only receive what they would have
received through intestacy
c. Republication can get rid of this issue
iv. Self-proving affidavits
1. Attached affidavits, sworn under oath, saying that the will was executed
properly
2. Only invalidated through evidence of forgery or fraud
3. Types
a. One-step: Affidavit and attestation clause both in affidavit
b. Two-step: signatures by witnesses on both will and separate affidavit
d. Ad-Hoc Relief from Strict Compliance
i. Courts started using their discretion to depart from strict compliance rules
ii. E.g., husband and wife sign same will with different names and sign the other
spouse’s will. Under strict compliance, pass their estate through intestacy. This is
obviously inequitable.
e. Substantial compliance (minority rule)
i. Finding of formal defect will not automatically invalidate will. Further inquiry:
1. Does the noncomplying document express the decedent’s testamentary
intent?
2. Does its form sufficiently approximate Wills Act formality to enable toe court
to conclude that it serves the purposes of the Wills Act?
ii. Policy reasoning:
1. Strict compliance can encourage litigation where someone just doesn’t like
how the testator distributed the property
f. Harmless error vs. substantial compliance
i. Substantial compliance requires a court to determine that a document is “compliant
enough”
1. Near-miss standard
ii. Harmless error excuses a noncompliant document
1. No concern with formalities; just look to intent of T
2. Requires clear and convincing evidence of intent to use as testamentary
document
6
3. Signature is hardest formality to excuse under harmless error because
signature shows an intent to use this as final will
4. Hall vs. Macool cases (signatures missing > look to T’s intent)
a. In Hall, the court probated a will that was unsigned because the
decedent wrote it himself
b. In Macool, the court refused to probate a will because decedent’s
attorney drafted it and she never saw it
g. Electronic Wills
i. Hinges on definition of “writing” in applicable Wills Act (or other related law)
1. Will written on Samsung Galaxy tablet in T’s handwriting counts (Castro)
2. Video and audio wills do not meet the writing requirement
ii. Policy considerations
1. Pro: Allows actively dying T to effectuate intent
2. Con: Concerns of fraud, deleting and adding portions, claims that one will is
intended to replace another
h. Holographic Wills
i. Handwritten will: either the entire thing or material portions must be in T’s
handwriting
1. Exception to requirements of signature and attestation of witnesses
a. Policy:
i. Allows Ts to effectuate their intent in pressing situations
where they are unable to comply with formalities
ii. Easier to authenticate that handwriting matches T’s
ii. Three generations of extent that must be in T’s handwriting
1. First gen: Entirely in T’s handwriting. One stamp would invalidate it.
a. In case of forms, some courts will ignore everything not in T’s
handwriting and only give effect to handwritten portions (Gonzalez)
2. Second gen: “Material provisions.” Invalidates provisions with form stating “I
give to…” and the like
3. Third gen: “Material portions” to alleviate pressure of “provisions”
iii. Kuralt:
1. News guy sent letter to secret GF saying he planned to give her some
property while he was in the hospital.
2. Court treated it as a holographic will. Higdon says this was wrong and a
“dangerous precedent” because there is no proof that Kuralt intended this
document to be testamentary. Not really what harmless error is about.
3. Contrast with Macool: Court seemed to focus here not on whether Kuralt
intended the letter to be testamentary, but whether he intended his girlfriend
to inherit the property (which normally would not be enough).
a. In Macool, the court focused on intent for the document to be
testamentary in nature, not mere intent that someone receive the
property.
b. Higdon may include additional facts to make a document appear less
or more testamentary in nature
5. Revocation of Wills
a. Wills are ambulatory documents = they only come into play after death and can be revoked
at any time before T’s death
i. Revocation can be express or implied
1. Express = “I revoke my earlier will.”
7
2. Implied = Inconsistent with later will or codicil
ii. Revoking a will revokes all codicils, but revoking a codicil does not revoke the will.
b. Methods of revocation
i. Subsequent writing (with relevant will formalities)
ii. Physical act to the original, not a copy (burning, tearing, writing “void” across it)
1. Revocation by defacing with writing
a. Common law: Writing to deface a will must cover material portions.
Writing on the back is like writing on a separate piece of paper.
(Thompson)
i. Policy: fraud; avoiding fact finding
b. UPC: cancelling acts do not have to touch the text of the will.
2. The testator has to do it. Their attorney ripping it up is not enough.
3. If on a copy: courts with harmless error statutes will often impose a
constructive trust in favor of those whom T intended to give property to
c. Presumption of revocation
i. Presumption of revocation raised when will not found among testator’s belongings
upon their death (if testator was in possession of the original) (Harrison)
1. If presumption is overcome, still probate the will if there is clear and
convincing evidence of its contents
d. Harmless error
i. If jurisdiction has adopted harmless error, it can also save a revocation where there
is clear and convincing evidence of the testator’s intent to revoke
e. Partial revocation by physical act
i. Majority: can cross out someone’s name and it is effectual if testator actually had
intent to revoke, not just make notes
1. Does not increase shares of other devisees, only moves that portion to heirs
through intestacy
ii. Minority: cannot partially revoke by physical act
1. Reasoning: giving property to someone else is a testamentary act that
requires formalities
2. Policy concern: invites fraud by devisees wanting to increase their share
iii. If changing devise next to crossed out portion, must comply with will formalities.
iv. Issues implicated by partial revocation of a will by physical act:
1. Whether the state recognizes partial revocation by physical act; compliance
with formalities; whether they allow holographic codicils; DRR
f. Dependent Relative Revocation (DRR)
i. Revocation of will under mistaken belief of fact or law = revocation invalid
1. I.e., testator thought a subsequent instrument would be valid but it’s not
ii. Court compares old will to legal result (usually intestacy) and determine which is
closer to T’s likely intent (usually determined by looking at invalid will)
iii. This is unnecessary in states with harmless error, which effectuates T’s intent
g. Revocation’s effects on prior wills (revival)
i. Majority: revives previous will if there is evidence that T intended to do so
ii. Minority: no revival; must re-execute former will
6. Components of a Will
a. Doctrine of Integration
i. Like parol evidence rule of contracts (no extrinsic evidence that conflicts with
provisions of the contract)
ii. In re Estate of Rigby
8
1. Facts: Two pages of a holographic will were found together in the same
folder, not stapled or fastened together. Both were initialed. Only the first
page was signed.
2. Held: these do not compromise the actual will.
3. Facts that could have been helpful: numbering each page; signatures on both
pages OR at the end of the second page; stapling or affixing
b. Republication by codicil
i. Effective execution of a codicil can make a formerly invalid will valid
ii. Also republishes will to later date
c. Incorporation by reference
i. Wills can refer to other documents that can control disposition of property. They are
treated as though they are a part of the will. Typically, the other document must be
completed at time will was signed.
1. Policy:
a. How can this comply with formalities if it didn’t exist
b. Invites fraud
2. Exception under UPC: lists of personal property can be created after the will
is executed (Clark v. Greenhalge)
d. Acts of Independent Significance
i. Vague provision referencing some future event
1. Ex: "When I die, I will give my neighbor whatever car I am driving at the
time."
ii. This is an exception to the general wills formalities that allows the devise involving
property not yet under T’s control to be probated
e. Contracts relating to wills
i. Freedom of contract allows a testator to contract to dispose of property in a certain
way
1. If violated, court will probate will as written and either impose damages or a
constructive trust on the estate.
ii. Mirrored wills
1. Spouses often execute two separate wills that have the same provisions
2. Does this imply a contract to not revoke after one spouse dies?
a. Majority: there has to be more evidence of an agreement to not revoke
than just the fact that the wills were mirrored
i. Policy: one spouse may die long before the other and the
circumstances could change significantly
b. Minority: mirrored wills imply a contract to not revoke
7. Capacity
a. General test for capacity (Restatement)
i. Testator must be capable of knowing and understanding in a general way:
1. the nature and extent of his or her property
2. the natural objects of his or her bounty (who would receive intestate), and
3. the disposition that he or she is making of that property, and
4. must also be capable of relating these elements to one another and forming
an orderly desire regarding the disposition of the property.
ii. Focus on T’s ability, not their actual knowledge
iii. This is a very low standard (and a high bar to prove lack of capacity)
1. You do not have to even be of average intelligence to have will probated
(Wright case where man doused fish in kerosene)
9
2. Even those with paranoid delusions in middle stages of Alzheimer’s can have
their will probated (Wilson v. Lane)
3. Policy:
a. Want freedom of disposition to be extended to even those not as
intelligent or with eccentricities
iv. Two theories to get a will thrown out even if the testator had capacity: (1) insane
delusion and (2) undue influence
b. Insane delusion
i. Insane delusion = belief adhered to after being clearly shown to be false
1. More than a mere mistaken belief. Must have been proven false.
2. To invalidate will, burden of proof on proponent to show that it materially
affected the will
3. This is a malleable doctrine that courts can use to throw out wills that they
just don’t like (Strittmater women’s activist case)
ii. Requirements for capacity
1. In addition to capacity (above), T must also not be suffering from an insane
delusion that materially affects the will
iii. Breeden v. Stone: rich kid kills someone while DUI and then, while high on alcohol
and cocaine, writes a will replacing his old one. Proponent could not show that
alcohol and cocaine intoxication materially affected his will.
1. Relevant facts: handwriting analysis; remembered legatees’ addresses
c. Undue influence
i. Undue influence = someone has substituted their own wishes for those of the
testator
1. Some influence is OK. The question is where the line is drawn.
2. This is a malleable doctrine. It is not helpful if the factfinder does not like the
testator’s disposition.
a. Higdon hates how malleable this doctrine is. Judges usually let bias
guide them in these cases.
i. Example cases: older woman with younger boyfriend (Moses);
gay couple (Kaufmann)
3. Evidentiary problem: usually the person exerting influence is doing it behind
closed doors
ii. Contestant has burden of proof to show following:
1. the donor was susceptible to undue influence
2. the alleged wrongdoer had an opportunity to exert undue influence
3. the alleged wrongdoer had a disposition to exert undue influence, and
4. there was a result appearing to be the effect of the undue influence.
iii. Presumption of undue influence for contestant if:
1. There was a confidential relationship between the testator and the alleged
influencer; and
a. Usually fiduciaries like with power of attorney
2. One or more suspicious circumstances are present.
a. Policy for shifting burden to fiduciary: they had the best opportunity
to build evidence that there was no undue influence.
iv. Lawyers drafting wills for a relative should never take more than their intestate
share. If drafting letters of intent, make sure they do not include lawyerisms as
those are suspicious. (Lipper)
10
v. Duress: if duress used to keep T from revoking a will, court will often impose a
constructive trust in favor of the rightful devisee.
d. Tortious interference with an expectancy
i. Elements: (1) existence of an expectancy; (2) reasonable certainty that the
expectancy would have been realized but for the interference of the defendant; (3)
defendant intentionally interfered with the expectancy; and (4) defendant’s
intentional interference was fraudulent or otherwise tortious.
ii. Policy: Someone may not know what happened behind closed doors in time to
participate in the probate proceedings
iii. Criticized: because it is unclear how tort law fits with the law of wills
e. Planning for a will contest
i. Have client write letter of intent addressed to lawyer
ii. No-contest clause
1. Clause stating that anyone who contests will not get their share if their
challenge fails.
2. Not enforced in many jurisdictions if contestant has good cause
iii. Family meeting to explain disparate dispositions
iv. Do a series of wills with same disposition to show consistency in T’s disposition
v. Get good witnesses who will present well in court
8. Construction of Wills
a. Common law construction rules
i. Plain meaning rule: in absence of ambiguity, extrinsic evidence is not allowed. If
there is a plain meaning to the words, we follow it.
1. Even if there is proof that the will was misdrafted and the lawyer admits it,
it will not be considered if the words of the will have a plain meaning.
(Mahoney)
ii. No reformation rule: no changing the material provisions of the will.
1. Only use EE to determine what words mean, not T’s intent.
iii. Exception for latent ambiguities
b. Policy:
i. Why admit extrinsic evidence for undue influence, duress, etc. and not this?
1. That goes to the construction of the will. Courts do not want to rewrite a duly
executed will.
2. There will be little to no good evidence about the meaning of words in a will.
ii. We want to do our best to effectuate T’s intent.
iii. Worst evidence rule: T is dead so they cannot state their actual intent, which would
be the best evidence.
c. Patent vs. latent ambiguities
i. Types
1. Patent: ambiguity is latent on the face of the instrument
a. “As soon as I read it, I know you messed up.”
2. Latent: (1) When two or more persons fit the description exactly; OR (2) when
the description in a will does not exactly fit any one person
a. “Looks good until we start applying it to the facts of the case.”
ii. Extrinsic evidence rule
1. Minority (common law): only allow extrinsic evidence as to latent ambiguities
a. Policy: more forgiving of latent ambiguities, which are harder to catch
for the drafter
2. Majority (modern): allow extrinsic evidence for both patent and latent
11
d. Ad-hoc relief: progressing toward reformation
i. Courts started to find ways to work around the no-extrinsic-evidence rule to get just
results
ii. Falsa demonstratio non nocet
1. When a description has several particularities that do not exactly fit one
thing, can get rid of lesser particulars to give the rest of the description effect.
2. Courts basically strike as much as they need to create an ambiguity and
admit extrinsic evidence.
3. Example: Testator bequeaths wrong house number in address but owns
another property on same street. Court will strike house number to create an
ambiguity and allow extrinsic evidence. (Arnheiter)
iii. Courts started stretching latent ambiguities to situations where there was no real
ambiguity
1. In re Gibbs’ Estate: T bequeathed to a person they did not know at their
actual address. Extrinsic evidence showed that they meant another person of
the same name and found the wrong address in the phone book.
a. The court admitted extrinsic evidence to show that T did not know the
legatee.
b. Said particulars of identification like middle initial and address are
highly susceptible to mistake.
e. Open reformation of wills (modern minority approach)
i. Courts will admit EE to best effectuate the testator’s intent, even in the absence of a
patent or latent ambiguity.
1. Contestant must prove testator’s intent by clear and convincing evidence
ii. Policy:
1. EE already allowed for other, similar situations
2. No requirements for a categorial exclusion (similar to statute of frauds)
3. Prevent unjust enrichment
4. Use of clear and convincing evidence to assuage concerns over “worst
evidence” problem
f. Lapse: Devisee predeceases testator
i. Common law
1. Specific devises (specific item of personal or real property) fall into residuary
2. Residuary devise passes to intestate heirs (no-residue-of-residue rule)
3. General devises (like money) to residuary
4. Class gifts are split among the other members of the class
5. Void devises follow above rules
a. Void = person already dead at time of writing will or devise to pet
ii. Problems with common law lapse
1. No-residue-of-residue rule led to intestacy where T almost definitely did not
want that
a. Most jurisdictions have abandoned this rule
2. Bequeathing to a person and a pet means that pet’s portion lapses (Russell)
iii. Antilapse statutes
1. Applies only to certain family members of T listed in a state statute
2. Devise, instead of lapsing, goes to the devisee’s issue (watch for per stirpes)
3. Requires unequivocal language to avoid antilapse—mere boilerplate will not
suffice (words of survivorship like “If she survives me”) (Ruotolo)
12
a. Others argue that words of survivorship should defeat antilapse
because the gift is conditioned on their survival
4. Antilapse is a default rule that can be supplanted by T’s intent
5. Class gifts: class member’s gift goes to their heir rather than lapsing to the
rest of the class
6. Policy:
a. Testator presumed to prefer passing to heirs of devisees as long as
they are of certain familial relationships
g. Defining class gifts
i. Context is important; even where a testator expresses intent to give to a certain
class of people, often listing the specific devisees (especially where more devisees
would fit the supposed class) is enough to render it not a class gift (Dawson)
1. Factors for determining whether it is a class gift: (1) presumed class gift if
devisees are not referred to by name but by relationship; (2) group subject to
fluctuation
ii. Lapse: dead class member’s portion is split among the remaining members of the
class
h. Ademption
i. Ademption = property left to someone that T does not control at time of death
1. I.e., T gives away a piece of property before death
ii. Two approaches
1. Identity theory (common law): devisee just doesn’t get the property
a. In few states that continue to follow it, there are a lot of exceptions.
2. Intent theory (modern): if T would have intended to give the devisee the
property’s value, the devisee will get the value of the property
a. Often hard to know if someone would intend (tempered by
presumptions of intent)
9. Trusts
a. Benefits to trusts
i. Avoids probate (which is a mess and has fees)
1. Avoids probate contests because (1) trusts are private so non-beneficiaries
can’t see it; (2) to invalidate a trust, a court has to go back and invalidate
every transaction under the trust to hold it invalid. This is difficult.
ii. Avoids estate tax
iii. Confidential (non-beneficiaries can’t see it)
iv. Protects minors by withholding power
v. Gives more power to settlor to control distribution of property
vi. Lasts much longer (and many states have gotten rid of RAP)
vii. Bifurcation of legal and equitable title
b. Four requirements to create a trust
i. Intent to create a trust
1. Does not have to use words “trust” or “trustee” to be a trust
ii. Ascertainable beneficiary
1. No undefined class or leaving it up to trustees to dispose of (Clark)
iii. Res (property held in the trust)
iv. MAYBE has to be in writing (for testamentary trusts and inter vivos land trusts)
1. Inter vivos trusts for money or personal property can be oral, but this is a
terrible idea
v. Ascertained trustees are not necessary; courts will appoint one if necessary.
13
c. Hallmark of a trust
i. Bifurcation of ownership
1. Trustee has legal title (liabilities and obligations or ownership)
2. Beneficiary has equitable title (benefits of ownership)
ii. Trustee owes fiduciary duties to beneficiary
1. Beneficiary can sue trustee and recover damages for misuse of funds
d. Two ways to create an inter vivos trust
i. Declaration of trust: effectuated without transfer of property
ii. Deed of trust: not effectuated until property delivered to trustee
e. Differentiating inter vivos trusts from inter vivos gifts
i. Hebrew University Ass’n v. Nye
1. Supposed settlor made a promise at a public event to give rare items to a
university then put the property in a warehouse and started to catalogue and
ship it. Settlor then died before delivering the rest.
a. University claimed the settlor was the original trustee, but the court
held this was not a trust. To hold otherwise would be to abrogate the
requirement for delivery of inter vivos gifts.
b. On remand, court held that giving the University a memorandum of
the items counted as symbolic delivery of an inter vivos gift.
f. Unthank v. Rippstein: res requirement
i. Facts: Man promised his girlfriend that he would pay her $200 per month for the
next x years, including if he died. It was not clear what the res of the trust was.
Girlfriend argued that the entire estate should be put in trust, but the court didn’t
buy this.
ii. Relationship with Kuralt:
1. In Kuralt, decedent conveyed a specific piece of property whereas here there
was no res
2. NEED MORE
g. Honorary trusts (animals)
i. Approaches
1. Common law: trusts with animals as beneficiary were invalid for lack of
ascertainable beneficiary
2. Modern: imposes an “honorary trust” on the willing trustee where they have
a moral obligation to provide for the animal but no legal obligation
a. If trustee refuses, trust property can revert back to settlor’s heirs
ii. Rule Against Perpetuities issue for animal trusts
1. Pets to not count as validating life
a. Big problem for pets that live over 21 years
2. If there is a set amount of res, court will do math to determine how long the
trust will last under monthly payment scheme.
3. RAP = interest must vest, if at all, within life in being plus 21 years.
h. Secret vs. semi-secret trusts
i. Semi-secret
1. Acknowledges (in deed or declaration) that the money is in trust, but the
trust is incomplete on its face
a. Ex: no ascertainable beneficiary
2. Fails & court will not admit extrinsic evidence to show intended beneficiary
3. Policy: Not worried about trustee being unjustly enriches; only person being
enriched in settlor’s heirs
14
ii. Secret (exception to plain meaning rule)
1. No language suggesting that there is a trust at all (will shows an outright
gift) but extrinsic evidence shows that the settlor/testator actually intended
to put property in trust with “devisee” as trustee for benefit of another.
2. Court will admit extrinsic evidence to show it was intended to be a trust
3. Policy: prevent unjust enrichment of intended trustee who would’ve
otherwise received free property
10. Nonprobate transfers
a. Revocable trusts
i. Settlor takes property as trustee and provides how it will be distributed on their
death
1. Issue: This is at odds with traditional trust principles.Is there a real
beneficiary?
a. Common law: Yes. There is a present transfer attaching duties
b. Modern: It’s revocable so there is no real transfer. Acknowledged that
this is just another way to dispose of property.
i. Trustee owes no duties to beneficiaries until it becomes
irrevocable. Only duties are to settlor.
ii. Ambulatory (revocable at any time by the settlor)
1. Settlor owes no duties to beneficiary until trust becomes nonrevocable (Fulp)
a. Policy: otherwise would essentially make a revocable trust
nonrevocable; wouldn’t make sense to say that settlor owes duties to
both themselves and the beneficiaries
iii. This is a nonprobate will (say this on the exam)!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
iv. Pros and cons of wills vs. revocable trusts:
v. Presumption of revocation:
1. Presume inter vivos trusts are revocable unless they state otherwise.
2. Assume a revocable trust can be revoked in many ways unless it is expressly
limited in the trust (revocation in any way that carries out settlor’s intent)
b. Subsidiary law of wills to nonprobate transfers
i. Trusts generally not subject to law of wills, but some aspects (of subsidiary wills
law) have migrated to revocable trusts due to policy concerns
1. Generally decided on a case-by-case basis and depends on how willing the
court is willing to stretch the wills statute on policy grounds
ii. Elective shares can typically reach revocable trusts
iii. Creditors’ ability to reach assets
1. Modern: creditors can reach assets in revocable trust despite the legal fiction
that the settlor no longer has ownership (State Street Bank & Trust)
a. Raises question about whether they can reach it after the trust
becomes irrevocable
2. Common law: creditors could only reach probate assets
iv. Divorce
1. Wills law assumes if you divorce someone, you don’t want them to receive
property previously devised. Sometimes courts will apply this to trusts.
(Clymer)
c. Pour-over wills
i. Will stating “everything left over in my estate will go into this trust.”
ii. Allows funneling of all probate and nonprobate transfers.
15
iii. Simplifies disposition of property where nonprobate transfers have complicated
things.
iv. Has problems with: (1) incorporation by reference; (2) acts of independent
significance
d. Life insurance
i. Betting against the insurance company that you will die before end of term
ii. Divorce: subsidiary law of wills may migrate as it is not always necessary to strictly
comply with the insurance terms (Varela v. Bernachea)
e. Planning for incapacity
i. Conservatorship
1. Default for dealing with incapacity (intestacy of incapacity)
2. Go to a court and ask them to declare someone incompetent
3. Messy for a few reasons:
a. You’re publicly arguing about whether someone is mentally capable to
handle ordinary affairs
b. Disruptive to families
ii. Durable power of attorney
1. Differs from regular power of attorney because it survives incapacity
2. Power of attorney: designation of person as agent, but limits what actions
they can take. Ends upon incapacity.
3. POA may include power to create trusts
a. When creating trusts for own benefit, especially for items that have
already been devised, can be invalidated on self-dealing theory
(Kurrelmeyer)
11. Limits on Freedom of Disposition
a. Protections for Spouses
i. Policy
1. American law generally gives testators the freedom of disposition, but we are
highly concerned with disinheriting a spouse
2. Question of when law of wills applies to nonprobate transfers
3. For those who die with no will, intestacy protects the spouse (presumed
intent)
4. Intestacy is no protection for those whose spouse had assets in trust
ii. Elective share statutes
1. Community property states
a. Each spouse already has an undivided one-half interest in all of the
property acquired during the marriage
b. Surviving spouse already owns half of the property and will keep it >
no need for elective share statute
2. Separate property states
a. Whoever’s name is on the title owns the property and can sell without
their spouse’s permission
b. Absent statutory protection, spouse entitled to nothing.
c. Elective share statutes
i. Surviving spouse may opt to take elective share amount rather
than whatever they would have received
1. Most states offer an elective share between 1/3 and 1/2
of probate and certain nonprobate property
16
2. Can choose to reject larger share in favor of smaller
statutory share (to avoid taxes and creditors)
ii. Two theories
1. Spousal support theory
a. During life, you are required to support your
spouse (especially when women couldn’t provide
for themselves)
b. Spouse may become a ward of the state
otherwise
2. Marriage as partnership theory
a. Assume both spouses worked together to build
the marital estate
b. Both contributed equally even if one makes far
more money
c. 1/3 offered to spouses in most states is
problematic under this theory because we
assume each partner contributed 1/2.
iii. Nonprobate assets and elective share statutes
1. Most states have included nonprobate assets in their elective share statutes.
2. Generally, courts must apply the words of the statute. If a certain type of
asset is not included, it will not be reached by the elective share.
a. Some courts have taken a more activist role and allowed elective share
to reach nonprobate assets not enumerated in statute (Sullivan)
i. Policy: The whole point of the elective share is that we do not
want people to disinherit their spouses. To not reach
nonprobate assets would mean that you just have to disinherit
your spouse in a different way.
ii. Some courts have been less willing to undertake judicial
activism (Myers)
iv. Intestate share available for spouses not yet married at time of writing will
1. Abuse of elective share statutes
a. Some statutes only account for surviving spouse being provided for in
will and does not consider trust assets allocated to them. Many states
have updated their statutes to deal with this. (Prestie)
b. Protections for Children
i. Opposed to spouses, American law generally allows disinheritance of children.
1. Policy:
a. Testamentary freedom
b. Convince kids to take good care of their parents
c. Parents may want to disinherit their children to ensure they keep
their government benefits
d. Lack of partnership theory of marriage
2. Disinheritance of a child almost always leads to a probate contest. Most
lawyers advise at least leaving an intestate share.
3. Other countries (like Australia) do not allow for disinheritance of even adult
children (Lambeff)
a. Pro-Australia policy: equity; responsibility to care for children
b. Pro-America: Parents owe nothing to adult children; invites litigation;
Australian approach provides no certainty
17
ii. Pretermitted heir statutes (unintentional disinheritance of children)
1. Rule of construction, not absolute.
2. Where a child is born after execution of a will, they can potentially take
a. Presumed accidental disinheritance here (presumed intent of T)
b. This is a rule of construction. With showing that disinheritance was
intentional, the child will be disinherited.
c. Some states provide for any child not mentioned in the will
3. Two types of pretermitted heir statutes
a. Missouri-type
i. Requires T to state their intent to disinherit in the will
ii. No extrinsic evidence
iii. More protective of children
b. Massachusetts-type
i. Will carried out ??? “unless it appears that such omission was
intentional and not occasioned by mistake.”
ii. Allows extrinsic evidence
iii. More protective of testator’s intent
4. Application to nonprobate assets
a. Traditional: pretermitted heir statute only applies to wills
i. Policy: unlike a spouse, you can already disinherit your
children.
b. Modern (and Restatement): pretermitted statutes extend to
nonprobate assets
i. Policy: Revocable trusts are like the modern will. If we are
going to attempt to protect children, the statute should apply to
nonprobate assets.
5. Gray v. Gray: formalistic, inequitable application of exceptions
a. Father had child after writing a will. Old will had devised everything
to his wife who had died
i. Statute had exception where testator devised to surviving
spouse, with policy goal being taking care of the child.
ii. Result: the whole estate went to the executor rather than the
pretermitted heir.
12. Trustees’ Fiduciary Duties
a. Trustee owes fiduciary duties to the beneficiary
i. This is opposite of common law where trustees had no power whatsoever.
ii. If there are multiple trustees, all are liable for the actions of their co-trustees
iii. Policy: Trustees needed to be given more power in order to best serve the
beneficiary. There was no need for trust property to go uninvested.
b. Duty of Loyalty
i. No personal transactions with the trust
1. Trustees absolutely cannot purchase anything from the trust unless they
have express permission from: settlor, beneficiary, or a court. (Hartman)
2. No-further-inquiry rule
a. Strict liability imposed on trustee in case of any self-dealing or conflict
of interest (Gleeson)
b. Does not matter if it was in the best interest of the beneficiary
c. Damages: cost of property at time of decree (rather than time of sale)
PLUS appreciation damages
18
i. Looks like punitive damages but it isn’t.
d. Policy
i. Judicial efficiency: too difficult for court to discern good deal
from bad deal
ii. Deter trustees from even thinking about entering a deal with
themselves
1. Especially detrimental when trustee required to pay lots
of damages
iii. Downside: trustee may have the best deal available for the
estate
c. Duty of Prudence
i. Policy behind giving trustees more power over trust res
1. Protect beneficiaries: trustee can control how money is distributed based on
their needs
2. Settlor can choose a trustee who is an expert in investing, which will benefit
the beneficiaries and the overall value of the trust
ii. Duty of inquiry (Marsman)
1. Trustee has a duty to inquire into the needs of the beneficiaries ???
2. Especially questionable where trustee has reason to know that the
beneficiary may need the trust funds
iii. Trustee discretion
1. Even if the language of the trust gives the trustee the sole discretion as to
how to distribute money, they are held to a standard: arbitrariness.
a. Trustee has discretion, but their actions must not be arbitrary
2. Effects of exculpatory clauses
a. Trustee still held to arbitrariness standard and beneficiary can collect
b. Especially suspect where drafter of the trust is also the trustee
(burden shifts to drafter to show that they informed everyone)
iv. Trust Property Investments
1. History
a. At common law, trustee had basically no powers.
b. Used to be prudent man (or person) standard, which:
i. Basically had a list of things trustees could do with the trust
property
ii. Focused on investments in isolation rather than the
performance of the whole portfolio
iii. Used hindsight to punish trustees for being risky
c. Prudent man standard was too limiting and did not best serve the
trust or the beneficiaries, so they moved to:
2. Prudent Investor Standard
a. The standard
i. Standard is diligence and prudence of an intelligent person
managing their own affairs
ii. Looks less to one individual asset and instead looks to
performance of the whole portfolio
1. Based on portfolio theory = some investments will do
worse than others and that will balance out on the
whole of the portfolio
b. Analysis under Prudent Investor Standard (Janes)
19
i. Look to the purpose of the trust
1. Is income needed immediately?
2. How risky would it be wise for the trustee to be?
ii. Diversification
1. Concentrating too much of the trust property in one
asset is too risky, even if the settlor started the property
with a large percentage of property in that one stock.
2. No need to diversify always (like where a family farm is
the only property in trust)
iii. Damages
1. Start accumulating on the day the court determines
that the trustee should have realized that he should sell
the stock
20