Isabelle Anselmo
Hamilton – Spring 2021
TRUSTS AND ESTATES SURVEY CHECKLIST
FREEDOM OF DISPOSITION
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POSTHUMOUSLY CREATED PROPERTY RIGHTS
Property rights not owned by T at time of death are not subject to disposition by will.
UPC allows estate to maintain control of postmortem publicity rights (after Shaw  posthumous right of publicity devisable at death.
PROFESSIONAL RESPONSIBILITY IN PROBATE PRACTICE
Attorneys have a duty to intended beneficiaries despite a lack of privity. Simpson.
Joint representation:
 Attorneys may disclose clients’ confidential information where the lawyer’s services have been used to commit a fraudulent act and
disclosure is necessary to rectify the consequences of that act. A. v. B.
 Attorneys may decline representation if unable to exercise independent professional judgment due to divided loyalties.
Attorney-client relationship ends at execution and delivery of documents unless there’s a promise to contact in the future.
MECHANICS OF SUCCESSION: PROBATE GENERALLY
Determining the new owner of a person’s property upon death involves examining (1) type of asset and (2) whether the decedent made a valid will.
If someone dies without a valid will or with a valid will that doesn’t encompass all of the person’s probate estate, the person’s probate property that
isn’t covered by a valid will is distributed through intestate succession
Functions of Probate:
 establish title to property
 facilitate collection of assets and claims
 resolve tax and creditor claims
Opening Probate and Choice of Law
 The law of the state where the decedent was domiciled at death governs the disposition of personal property; the law of the state where the decedent’s
real property is located governs the disposition of real property
Probate v. Nonprobate
 Nonprobate: pass via will substitute, directly to beneficiary
 Probate: pass via will or intestacy. Anything without a legally recognized death beneficiary
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MECHANICS OF SUCCESSION: THE MASSACHUSETTS PROBATE SYSTEM
Voluntary Administration
 Administers relatively small estates up to a value of probate estate less than $25k + one vehicle (unlimited)
 Process: File paperwork 30 days after date of death; cannot include any real property
Informal Probate (new with UPC):
 Notice provided before filing; provide notice 7 days before filing w/ court. After approved, must publish in local newspaper
Formal Probate:
 Notice provided after filing
INTESTACY: AN ESTATE PLAN BY DEFAULT
An Estate Plan by Default
 Intestacy: default provisions govern if property owner doesn’t override statutes by executing will or transferring property by use of will substitutes.
Goal of reflecting the presumed desires or probable intent of the decent.
 General succession rules
 (1) surviving spouse  (2) descendants (if there are descendants, if not ends here, no one else takes); (3) parents
 In varying degrees, other ancestors and collateral relatives protected
 Adopted persons or born through reproductive technology treated as equivalents to bloodline counterparts
 Unmarried cohabiting partners or step kids not provided for
 Policy: Treatment of spouses generally
 Doesn’t account for length of marriage, second spouse situations, cohabiting partners
 Step kids and in-laws
 Laughing heirs (mostly will escheat)
 Adopted kids (r’ship w/ natural family unclear) – Vallandingham refused to uphold equitable adoption
 Nonmarital kids
THE BASIC STRUCTURE OF INTESTATE SUCCESSION
Surviving Spouse, Unmarried Partners and Simultaneous Death
 Legislatures have been increasing the size of the surviving spouse’s share. UPC § 2-102.
 Policy: married individuals who don’t have children from other partners tend to prefer each other to their children as primary beneficiaries
of their wills.
 And, after Obergefell (2015), same-sex married partner is considered a spouse for all intestate distribution reasons.
 UPC – surviving spouse (SS) takes the entire interstate estate:
 (1) if decedent is also survived by children who are also children of decedent and spouse, or
 (2) if decedent is not survived by descendants and parents.
 UPC § 2-102 is generous:
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Hamilton – Spring 2021
If couple has kids, but no surviving step-kids  SS takes entire estate. § 2-102(1)(B). Policy: financial security.
If either spouse has a child by someone than each other  SS gets less. § 2-102(3), (4).
 If decedent left kids who aren’t kids of SS  SS gets $150k + ½ balance; other ½ to kids. Policy: no natural loyalty.
 If SS left kids who aren’t decedent’s kids  SS gets $225k + ½ balance; other ½ to kids. Policy: assurance in cases of
divided loyalties.
 No children  SS shares w/ decedent’s parents, if any  SS takes first $300k + ¾ balance; remaining ¼ balance to surviving
parent(s). § 2-102(2).
 No parents  SS takes to exclusion of collateral relatives like siblings. § 2-102(1)(A).
 Length of marriage doesn’t matter for intestate share
 Community Property Jurisdictions:
 SS retains ½ of community property
 Quasi-community property – SS retains ½ of QCP
 Unmarried, cohabiting partners – partner gets nothing, but can be resolved with a will
 Simultaneous death:
 Modern Rule: Heir devisee or life insurance B who fails to survive by 120 hours (5 days) is deemed to have predeceased decedent.
Claimant must establish survivorship by 120 hours by C&C evidence. (Janus)
 If doesn’t survive by 120 hours  no taking. UPC §§ 2-104, 2-702.
 Policy: (1) fulfills T’s intent; (2) efficient b/c if H&W die at same time, court would probate both estate.
 Uniform Simultaneous Death Act (amended w/ Janus/modern rule): if no sufficient evidence RE order of death  neither would’ve
inherited.
Descendants: To have a share allocated, must be alive or dead and survived by issue. Intestacy statutes almost universally give descendants of all an intestate
decedent’s probate assets that don’t pass to the SS.
 Procedure for Determining Shares:
 Step #1: Identify intestate’s children.
 Step #2: Determine if any predeceased child left a descendant who outlived intestate.
 None of intestate’s children predeceased intestate  per capita distribution
 None of intestate’s predeceased children left descendants who survived intestate  per capita distribution
 1+ intestate’s children predeceased intestate leaving 1+ descendant who survives intestate  Step #3.
 Step #3: Ascertain state’s method of handling multi-generational succession.
 Strict/English Per Stirpes (1/3 states)
 First division at generation nearest to descendent, whether or not they survived
 Policy: treats each line (family) of descent equally. Assures vertical equity with parity across lines of descent, at the
expense of horizontal equality.
 Modern Per Stirpes (1/2 states; “Per Capita with Representation”)
 If kids survive decedent  per stirpes
 If no kids survive decedent  divide equally (per capita) at first generation in which there are living takers
 Policy: response to uneven results from strict per stirpes
 Per Capita at Each Generation (1990 UPC § 2-106(b); 12 states)
 Initial division of shares made at closest generation in which one or more descendants are alive, but shares of deceased
person on that level are treated as one pot and divided equally among representatives of the next generation.
 Policy: horizontal equality via treating each taker of an equal degree of kinship to the donor equally, but gives up
vertical equality, and harder to calculate. Hamilton approves.
 Share of issue:
 All children living  issue/descendants take entire estate
 Child predeceases parent  if child dead, grandchildren take by representation
 Child predeceases parent & dead child doesn’t have living kids  no one from whole line takes
 All first generation (kids) dead  child’s descendants represent dead child and divide share accordingly (see methods in Step #3 above)
Ancestors and Collaterals
 If none of intestate’s descendants survive  ancestors and collaterals inherit the balance that doesn’t pass to SS. Descendants are preferred to
ancestors and collaterals even if one of them (like a parent) is more closely related than a descendant.
 Parents (if no kids)
 If spouse and parents living:
 UPC § 2-102(2) and ½ states: no spouse + no kids  spouse takes $300k + ¾ remaining estate; parents take ¼
remaining estate
 Other ½ states  spouse takes to exclusion of decedent’s parents
 No spouse, but parents: divide among parents
 First-line collaterals (if no spouse, kids, or parents)  brothers and sisters and their descendants
 Second-line collaterals (if no first-line, then variations)
 UPC: cuts off blood relatives more distant than descendants of decedent’s grandparents
 MA: degree of relationship with parentelic tiebreaker
 Majority – Parentelic System: intestate estate passes to grandparents and descendants (continues down each line until an heir is
found). ex- niece in first column beats aunt in second column (because niece is in the closer parentelic column).
 Minority – Degree of Relationship System: intestate estate passes to closest kin counting degrees of kinship – two methods, (1)
civil law and (2) canon law (see E&E at 34)
 Laughing Heirs: Abolished by many states and UPC § 2-103(a) (draws line at grandparents and descendants)
 Stepkids and In-Laws: Policy: trend to expand number of potential heirs to them.
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 UPC § 2-103(b) + 12 states recognize them
Half-Blooded Collateral Heirs: UPC § 2-107/majority treat relatives of half-blood same as whole blood. Minority only gives ½.
Escheat: no survivors  escheat to state under UPC 2-105.
Disinheritance by Negative Will authorized by UPC 2-101(b).
TRANSFERS TO CHILDREN: WHO IS A CHILD?
Adopted Children; Adult Adoption
 Formal Adoption: all states allow adopted children to inherit from adopted parents, but inheritance doesn’t flow from adopted child to natural parent
unless an exception applies. Further, an adopted child’s descendants represent the adopted child in the inheritance scheme upon the adopted child’s
death. UPC § 2-118(a).
 Questions to Ask:
 Step #1: Who is the child?
 Step #2: How are they treated in terms of intestacy?
 Step #3: Whose intestate shares have been cut off? Whose haven’t?
 General Rule/New Family Adoption (adoption of a child by a new family)
 UPC § 2-119(a): adoption severs relationship from natural parents and grafts new relationship between adopted child and
adopting parents for inheritance purposes
 Hall v. Vallandingham: Four kids weren’t entitled to inherit from a natural parent because of adoption; also, couldn’t inherit
through natural parent after the parent’s death, by standing in parent’s shoes as descendant under intestacy. Very harsh; said
adoption is a “rebirth.”
 Policy: “fresh start” approach makes sense for adoption via strangers, but if adopted parent is a stepparent, policy arguments shift
(Vallandingham)
 UPC Exceptions/Stepparent Adoption: can inherit from and through both genetic and adopted parents if:
 (1) Adopted by Stepparent –parent-child relationship b/w someone who’s adopted by spouse of either genetic parent
 Policy: for stepparent adoption, makes no sense to cut off inheritance rights between adopted kid and parent married to
stepparent, also for relatives of former parent
 (2) Adopted by Relative of Genetic Parent and (3) Adopted After Death of Both Genetic Parents – parent-child relationship exists
only for purpose of right of adoptee or descendant of adoptee to inherit from or through either genetic parent
 EXAM TIP: UPC doesn’t follow Vallandingham; adopted can inherit from natural AND adopted parents if exception applies
 Equitable Adoption: where a child can inherit from someone acting as a parent. Factors in making a determination of whether an adoption by
estoppel occurred including whether the “parent”
 (1) contract to adopt existed by was never completed,
 (2) made a good-faith attempt to adopt, or
 (3) held the “child” out as actually having been adopted: i.e., parent-child relationship identical to relationship that would’ve existed if
formal adoption took place. Acts to “estop” the parent from claiming that the adoption didn’t occur  when the “parent” dies, adopted by
estoppel child is entitled to share in estate just as if adoption had actually occurred.
 O’Neal v. Wilkes: Daughter prohibited from inheriting father’s estate through intestacy because contract between aunt and father
was invalid, even though father raised her for 18+ years. Dissent: equity should enforce the contract.
 Adult Adoption
 UPC 2-705(f) excludes persons adopted after 18y from a gift to adoptive parent’s “children, issues, descendants, or heirs” by someone
other than adoptive parent unless adoptive parent was adoptee’s stepparent/foster parent/functioned as one before 18y
 Many states draw no line between adult and minor adoption.
 Some states prohibit adoption of one’s lover (pre-Obergefell same-sex couples turned to adoption to ensure inheritance  In re Adoption of
Robert Paul allowed; In re Adoption of Swanson disallowed)
 MA: adoption for the purpose of preventing a will contest is proper
 Other courts have said it’s improper – Minary: court refused to permit inheritance where decedent’s child adopted his wife so she
could inherit under trust
Posthumous Children; Nonmarital Children
 Posthumous Children: heir conceived & developing in mother’s womb while intestate is alive, but not born until after intestate’s death. Posthumous
heir treated as “in being” and capable of inheriting from the time of conception if thereafter born alive. UPC § 2-104(a)(2).
 Questions to Ask:
 Step #1: Know the full family tree? (Those not yet born, those in utero, those nonmarital)
 Step #2: Look to law of the state
 Step #3: MA cuts off inheritance from dad in nonmarital and inheritance from natural parents in adopted situations
 Posthumously Born Children – child conceived before father’s death but born after father’s death – general presumption that child’s legal
interests are created at time of conception rather than time of birth
 Rebuttable presumption – 280-day gestation period
 Uniform Parentage Act § 240 – rebuttable presumption; 300 days
 Posthumously Conceived Children:
 Inheritance under intestacy
 State law: Burden rests with surviving parent to prove affirmative consent.
 MA: right to inherit if (1) genetic relationship established, and (2) deceased parent consented to posthumous
conception and posthumous support. Woodward.
 Inheritance under wills, trusts, as a class gift
 UPC: Is distribution triggered by predeceased parent’s death?
 Yes  child must’ve been living on that date or have been in utero no later than 36 months after or born not
later than 45 months after
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 No  eligible to take on date the child is alive or in utero and born alive
 A must have consented to posthumous conception in signed writing
 Nonmarital Children: all states permit inheritance from mother; most states permit inheritance from father subject to proof of paternity.
 Proof of paternity may be established by: (Lalli v. Lalli)
 (1) evidence of subsequent marriage of parents
 (2) an adjudication during life of the father
 (3) clear and convincing evidence after father’s death that he was the father
 Trimble v. Trimble: alleviated the harsh treatment of nonmarital children; held marital and nonmarital children must be treated the same
when determining heirs under intestacy statutes.
 Policy: 40% of kids are born out of wedlock so law changed to keep up with this.
 Lalli v. Lalli: took a step back from Trimble; held a state may have legitimate reasons to apply a more demanding standard for nonmarital
children to inherit from their fathers than from their mothers.
 Permitted inheritance by nonmarital child from father only if (1) father married mother, (2) formally adjudicated by father, or (3)
child can prove through C&C evidence after death he was father.
Reproductive Technology and New Forms of Parentage
 Surrogacy
 UPC: Surrogate does NOT have a parent-child relationship with the child unless no one else does.
 An intended parent of the child has a parent-child relationship with the child if the person functioned as a parent of the child
within two years of the child’s birth.
 Surrogacy tourism in Hodas v. Morin: court upheld choice of MA law in surrogacy K between NY surrogate and CT couple calling for
child to be born in MA.
 Assisted Reproduction/Same-Sex Couples: approved adoption; presumptive second parent. See In re Adoption of Tammy; Partanen v. Gallagher
Advancements and Hotchpot
 Advancements: Irrevocable inter vivos gift of money or property, real or personal, to a child by a parent that enables the child to anticipate his
inheritance from the parent to the extent of the gift.
 Modern trend – not an advancement unless writing acknowledging it was an advancement. UPC § 2-109(a).
 Key: Donor’s intent
 Presumption of gift, not advancement
 If child doesn’t survive parent, advancement not taken into account in determining share of child’s descendants
 Hotchpot is the equalization process in which the advancee’s share of the advancer’s estate is reduced to compensate for the advancement. Advanced
property is treated as if it were still in the advancer’s probate estate when computing the size of intestate shares.
 Steps:
 (1) Add advancement to estate, hotchpot
 (2) Divide equally
 (3) Subtract advancement
 Disproportionately large advancements: if child received more than they would’ve received above  remove entirely and divide between
remaining children
 Advancements are valued as of the date of the advancement. UPC § 2-109(b).
 Satisfaction is the will version of this.
Guardianship and Conservatorship of Minors
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Guardianship of the Person (has responsibility for minor’s custody and care): if there’s surviving parent, appointed automatically unless unfit.
o If both parents die, court has pecking order: family members first. Not binding, but persuasive.
o If decedent dies intestate, probate court determines guardian. Another reason to write a will.
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Property Management Options (neither guardian nor child has authority to deal with child’s property)
o Guardianship of the Property – court appointed if parent dies intestate. Not popular b/c slow and cumbersome
o Conservatorship – court appointed if parent dies intestate. Closer to a trust, more flexible than guardian.
o Custodianship – similar to trust, just reference statute
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Uniform Gifts to Minors Act (property outright at 18) or Uniform Transfers to Minors Act (property outright at 21)
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Use most commonly in lifetime gifts, not appropriate for large gifts
o Trusteeship – most flexible. Only for people who create them during life or die testate and create by will.
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Give property to trustee to hold for benefit of B.
BARS TO SUCCESSION
One who would otherwise take an intestate share of an estate is barred either due to (1) misconduct or (2) they disclaim share.
Abandonment and Unworthy Heirs  some states bar
 UPC § 2-114 bars inheritance by parent from child if C&C evidence that parental rights could’ve terminated due to support, nonsupport,
abandonment, abuse, neglect.
Slayer Rule–Policy: (1) heir shouldn’t be rewarded for causing intestate’s death; (2) heir shouldn’t be deprived of an inheritance without just cause.
 UPC § 2-803: if taker killed decedent, and killing was felonious and intentional, slayer is treated as if he predeceased the decedent for purposes of
distributing decedent’s property. Under the UPC, a conviction is not a prerequisite.
 Jurisdictions split as to whether the issue of the killer should be barred from taking the share that would otherwise go to the killer.
 Types of Slayer Rules:
 (1) Legal title passes to slayer and may be retained (rationale: to not do so would be additional punishment)
 (2) Legal title will NOT pass to slayer (slayer shouldn’t be permitted to profit by his own fraud). In re Mueller.
 (3) Legal title pass to slayer, but equity holds him to be constructive trustee for decedent’s heirs or next of kin
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Estate must pass if statutorily required, but equity imposes a constructive trust requiring killer to hold the asset in trust
for the decedent’s next of kin. Mahoney.
Issues:
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What is “sufficiently egregious”?  intent to kill (Mahoney)
What happens to the property?  constructive trust (Mahoney)
Can heirs of the slayer inherit?  courts are split
 UPC: Slayer treated as having disclaimed property; disclaimant treated as having predeceased victim
 Does it apply to probate or nonprobate?  currently only probate, but UPC bars both
 Is criminal conviction required?  UPC says a criminal conviction is conclusive, but acquittal is not dispositive of slayer
statutes. Absent criminal conviction, courts determine by preponderance of evidence.
 Exceptions, where slayer still takes intestate share:
 Insane and not chargeable
 Vested interest in property
 Involuntary manslaughter
 Mercy killings
Disclaimer: an heir may disclaim/renounce their share in estate of an intestate decedent. UPC § 2-801; Uniform Disclaimer of Property Interests Act.
 If a party properly executes a disclaimer, the party who disclaimed is treated as if he predeceased the decedent for purposes of distributing disclaimed
property. UPC 2-801(d).
 MA requires recipient attest to the fact that she’s not insolvent. Policy: gets around ability to use the disclaimer to avoid creditors.
 UPC requires disclaimer be made within 9 months of the creation of the interest being disclaimed
 Ordinary creditors can’t get at disclaimed assets (Exceptions – federal tax lien, Medicaid, bankrupt debtor)
 Irrevocable
 Can cherry pick
 Requirements:
 Writing signed by disclaiming heir
 Timely filed w/ proper authorities – within 9 months
 Can partially disclaim
 Disclaimant doesn’t get to direct where it goes. Practice Tip: know where disclaimed property goes when advising clients.
 Notify person in control of doc, but send back to probate court too (deliver copy to administrator)
 Can’t be used to avoid federal tax lien (see Drye) or means-assisted program.
WILLS: FORMALITIES AND FORMS
Will: lawful procedure by a competent T acting voluntarily that conforms to a specified form and that disposes of property to a competent donee, or makes
other directions, or both. Ambulatory and revocable during T’s lifetime. Codicil – properly executed will that amends a primary will, but which might have to
stand on its own if primary will ineffective.
 Purposes of will requirements: evidentiary, channeling, ritual/cautionary, protective
 Formalist vs. Functionalist Balancing: most states demand strict compliance with requirements. A few states have adopted the substantial
compliance standard of UPC § 2-503, granting the court a dispensing power to excuse a harmless error. Most states have a savings statute, permitting
a will to be effective under certain circumstances. UPC § 2-506.
 Prevent false positives and negatives.
 Policy: formalities are fine, but focus on whether they promote the intent of the T or not.
 Four Requirements of a Valid Will: (1) legal capacity, (2) testamentary capacity, (3) testamentary intent, (4) compliance w/ statutory formalities.
EXECUTION OF WILLS
Attested Wills: Execution
 Testamentary Capacity: T must have requisite capacity at time of executing/revoking will. Must be at least 18 years old, of sound mind. Cunningham.
Can be a lucid interval.
 Sound mind: T (1) comprehended the action being taken and its effect, (2) knew the nature and extent of T’s property, (3) recognized the
natural objects of T’s bounty, (4) simultaneously held the first three elements in T’s mind long enough to make a reasoned judgment
regarding property disposition.
 Testamentary Intent: T must intend that the instrument presently operates as his/her last will when T signed instrument or when last act of execution
was performed.
 Execution of a Valid Will: Function of (1) jurisdiction’s Wills Act formalities and (2) how strictly the courts require the T to comply with formalities
(traditionally, strict compliance – see Groffman).
 Wills Formality Requirements: (1) writing that is (2) signed and (3) witnessed.
 (1) Writing – relaxed (Castro – tablet)
 (2) Signed by the T. (“X” – In re Estate of McCabe; “C” – Kuralt; “Father” – Eaton; typed cursive – Taylor v. Holt/Castro; printed
signature (not cursive) – Williams)
 (3) Witnessed by at least two witnesses, at the same time who either witnessed the signing or acknowledgement. Policy: witness assesses
T’s capacity/execution ceremony; protects T
 Presence Requirements: T Signing: must sign or acknowledge signature as his in presence of witnesses.
 Presence & Delayed Attestation: Witness Signing
 Witnesses need not sign in T’s presence
 Delayed attestation is permitted under UPC and the modern trend
 Witnesses need not be present at the same time
 Order: Witnesses can sign before T signs/acknowledges if all part of same execution ceremony + no one leaves room
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Disinterested Witness: MA permits gifts to interested witnesses or spouses of interested witnesses as long as it can be
demonstrated that it wasn’t inserted into the will by the undue influence of the witness.
 UPC 2-505(b) doesn’t require that any of the witnesses be disinterested
 Traditionally if a witness is a B, may not be able to take. Purging (minority) allows a will attested by an interested
witness, but voids bequest to that witness.
 Recommended, but not required:
 Self-Proving Will (UPC § 3-406(1)): attestation clause + self-proving affidavit give rise to rebuttable presumption of due
execution
 Effect: UPC 3-406(1) – if a will is self-proved, may not be contested unless evidence of fraud or forgery
 Purpose: Provides testamentary strength. Self-proving affidavit has notary attest to circumstances of will signing by
stating everyone was over 18, of sound mind.
 Attestation: witness attest will was duly executed in accordance with particulars of applicable Will’s Act
 Gives rise to rebuttable presumption of due execution
 Where augmented with affidavit, become self-proving will
 T must acknowledge before witnesses sign (if 2-self self-proving), but order doesn’t matter if one continuous
transaction
 Self-proving Affidavit: affidavit in which notary witnesses not only T’s signature but also witnesses’ signatures. UPC
authorizes one-step and 2-step.
 Safeguarding the Original in a safe deposit box/safe or w/ attorney. UPC § 2-515. If client loses, presumption revoked.
 Practice Tip: Attorneys required to designate someone else to take over their affairs in event of death/disability.
 Writings Below Signature:
 Some states: English Wills Act requirement that T sign at the foot or end.
 If handwritten line after signature and:
 (a) written after will executed and signed  will is valid, writing below will is null (if not a codicil)
 (b) written before will signed  modern rule: will valid, everything below invalid.
Attested Wills: Compliance with Formalities
 Strict Compliance Rule: will presumed invalid unless satisfies all formalities in statute even if defect is innocuous.
 Policy: guards against false positive but can result in harsh results (false negatives). Groffman; Stevens v. Casdorph.
 Ad Hoc Relief from Strict Compliance: UPC permits court to dispense with 1+ statutory formalities so long as doc’s proponents establish by (1)
C&C evidence that T intended doc to constitute decedent’s will or other will-related instruction and (2) T intended doc to be will.
 Formalist – Pavlinko: H&W signed wrong mirror-image wills  court did not allow probate b/c “can’t re-write”
 Functionalist – Snide: court allowed probate b/c it was mistake, not fraud.
 The Substantial Compliance Doctrine: permits probate of otherwise defectively executed will if proof expresses T’s intent IF the manner in which an
instrument was executed satisfied the purpose of the Wills Act formalities purposes. See In re Will of Ranney.
 Policy: Formal defect shouldn’t lead to automatic invalidity, but to further inquiry.
 However, substantial compliance won’t cure a major execution requirement, such as:
 Less than sufficient witnesses (see Smith v. Smith; In re Ferree)
 Lack of signature by T
 Most courts still require strict compliance
 Chastain: will required 2 witnesses, they had 3 but messed up two-step signing process  no SC
 Martina v. Elrod: will not self-proved because affidavit signed by witnesses and notary didn’t include all of language prescribed
by statute and didn’t consider whether statutory purpose was satisfied
 The Harmless Error Rule (only in 11 states, not MA)
 UPC 2-503 (not MA): permits probate of document which wasn’t properly executed as long as there’s C&C evidence that deceased
intended document to constitute his (1) will, (2) partial or complete revocation of will, (3) amendment of will, or (4) partial or complete
revival of formerly revoked will or formerly revoked portion of will.
 Policy: Query whether it’s truly harmless.
 Hall: where the court held it is irrelevant that a document offered for probate as a will has not been properly witnessed,
since C&C evidence established T’s intent that the document be T’s will. T’s joint will specifically revoked all previous
wills and codicils, and T directed that his prior will be destroyed.
 Will can’t be oral, but other formalities (signature and attestation) are less important.
 Defect in Signature (restatement says hardest to excuse): just have to prove by C&C evidence (1) decedent reviewed the doc, and (2) gave
final assent:
 C&C evidence established in Anton, where will admitted with lawyer’s testimony
 C&C evidence not established in Macool (no review or final assent) and Dwight (died w/ 3 letter left in signature)
Electronic, Digital Wills: wills don’t need to be on paper, just needs to be reasonable permanent record of markings that make up the will.
 In re Estate of Javier Castro: will written on tablet  writing
 NON-ASSESTED WILLS: KEY – MUST BE IN “WRITING”.
Notarized Wills: A will is valid if signed by two witnesses or a notary (CO & ND). UPC (2008). Policy: potential to reduce confusion in executing docs.
Holographic Wills (1/2 states; NOT MA)
 KEY – TESTAMENTARY INTENT.
 Need not be witnessed (1/2 states), but must be (1) a writing, (2) in T ‘s writing completely or at material provisions/portions, (3) signed by
T, and (4) express testamentary intent. UPC 2-502(b). Policy: helpful in emergency situations.
 Requirements:
 Express testamentary intent:
 Kimmel’s Estate (“if ennything happens”): will probated b/c it showed testamentary intent
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Hamilton – Spring 2021
Eaton v. Brown (“I’m going on a journey and may never return. If I do not, I leave everything to my son”): will probated b/c
language wasn’t a condition, but statement of inducement.
 Signed by testator:
 Written in testator’s handwriting: Policy: Handwriting provides more evidence for inspection; precludes probate of a forged document
 Entirely written, signed, and dated  led to harsh results
 Material provisions  holograph should be valid even if immaterial parts (date or introductory wording) are printed/stamped.
 (1) Intent view (strictest courts): if T intended any nonholographic material to be part of will, will is nonholographic.
 However, see Gonzalez, in which the court held preprinted portions of a will may be incorporated into a
holographic will where the trial court finds testamentary intent.
 (2) Surplusage view: permits nonholographic material to be ignored if doing so doesn’t alter T’s dispositive
arrangements.
 (3) Modern view/Material Provision approach (UPC 2-502(b)): deems a will to be holographic merely if the most
important words such as the names of the beneficiaries and the property they are to receive are in T’s handwriting.
 Policy: Court won’t deny probate if immaterial parts of dispositive provision are not in T’s handwriting.
 Allows extrinsic evidence to establish testamentary intent
 Kuralt: Letter (using word “inherit”) conveyed decedent’s testamentary intent to make specific bequest;
enforceable as a holographic codicil to decedent’s formal will.
 Some states allow T to sign at beginning, end, or anywhere on the face of the document (even in the opening paragraph)
 Need not be attested or notarized (but permitted); need not be formal (Kimmel)
Pre-Printed Will Forms
 If decedent prints a form, fills out by hand, but doesn’t have it attested  not entitled to probate as a formal will under strict compliance.
BUT, can be admitted as a holographic if enough text was handwritten. (See Gonzales; Ferree)
 How much needs to be in T’s handwriting?
 Everything  harsh results
 Material provisions  valid even if immaterial parts are printed or stamped
 Material portions; extrinsic evidence allowed  only material portions must be handwritten
 Function of pre-printed words: Some courts allow pre-printed to provide context; some ignore preprinted


COMPONENTS OF A WILL
Integration of Wills: Pieces of paper physical present when the will is executed and that T intends to be part of the will constitute the pages of an attested will
 Rigsby (2 pages folded together; 2nd not incorporated b/c only had initials and list of property).
 Requirements: writing, present at time of execution, intended to be part of will
Republication by Codicil: Codicil may re-execute, republish, redating underlying will. But, if doing so is inconsistent w/ T’s intent, no redating. Relevant any
time the date of the will is an important reference point to a rule of construction.
 Nielson (valid codicil): T drew lines through dispositive provisions of will; wrote initials/date between lines near cancellations; “revised by T, date”
 Revocation by implication – T executes W1, revokes W2, executes codicil to W1. If W1 republished, second revoked by implication.
 Requirements: valid will; valid codicil executed at a later time
Incorporation by Reference: a doc not executed w/ Wills Act formalities may be IBR + given effect w/ will:
 Requirements (UPC § 2-510): (1) will expresses intent to incorporate doc (2) will describes doc w/ reasonable certainty, (3) doc was in existence at
the time will was executed (strict).
 Existing writings – see Clark, where Court incorporated by reference the notebook; codicil republished the 1977 will to 1980.
 Writings not in existence when will was executed – see Cyfers, where court refused to probate an exhibit b/c some text was written after
will’s execution
 Exception for Tangible Personal Property (UPC § 2-513): T’s may dispose of TPP in a separate writing even if prepared after
execution of T’s will, provided will makes reference to it. Policy: flexibility. Practice Tip: sentimental value only.
 Incorporating Printed Text into a Holographic Will: Hamilton says Johnson makes no sense, contra Berry v. Trible where court held doc couldn’t be
probated as a holograph b/c handwritten and typed text were interwoven (T made handwritten changes + signed; Will said “I give and bequeath all,”
followed by arrow pointing to handwritten notation of intended B).
Acts of Independent Significance: a will may refer to an act/event (UPC § 2-512) that is to occur outside the will, and it may control either who takes under
the will or how much a B takes, as long as referenced act has significance independent of its effect on the will.
 Requirements: (1) must be personal property, (2) acknowledges fact that wills can change based on circumstances outside will, (3) independent
significance, (4) identification)
 Reference to another person’s will – may be upheld under incorporation by reference or acts of independent significance.
REVOCATION
T may change or revoke the will at any time or without a reason. A validly executed will (attested or holographic) can be revoked by (1) physical act,
(2) subsequent writing (if qualifies as will), or (3) operation of law (partial or total revocation triggered automatically by certain events. Wills are
ambulatory (subject to amendment by T any time before death)
 Practice Tips: (1) Revoking original will revokes all subsequent codicils; (2) Execute and revoke in the manner prescribed by statute (Thompson)
Revocation by Writing or Physical Act (revokes all codicils): permitted by all states.
 Revocation
 (1) Subsequent Writing:
 Must be executed with Wills Act formalities (satisfy all requirements of a valid will)
 Can be attested or holographic, and
 Can be express or implied.
 Express Revocation: subsequent wills that expressly revoke a prior will with an express revocation clause

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Implied Revocation: prior will revoked by inconsistency w/ properly executed new will or codicil
 Revocation by inconsistency (UPC): provision in the instrument T executed closest to time of death controls
as to inconsistencies. Any portion of the will that is not inconsistent w/ subsequent writings remains effective.
 Revocation by codicil: subsequent writing that doesn’t make a complete disposition; supersedes earlier will to
extent of inconsistency
 Harmless Error in Revocatory Writing
 UPC – you can revoke a physical act of cancellation for destroying a copy, not the original will
 Stoker – Harmless Error applies to wills that are in writing and signed by T
 (2) Physical Act (UPC § 2-507): courts admit a wide array of extrinsic evidence to ascertain facts and dispel ambiguities.
 (1) T performs a revocatory act on the will (any part of it)
 (2) T has the intent to revoke when the fact is performed
 Oral revocation without more isn’t enough
 Harmless Error in Total Revocation by Physical Act:
 UPC is silent
 Restatement says OK to apply harmless error to botched revocation to a copy, as long as there’s C&C evidence. If act
was performed on wrong doc due to mistake, may apply constructive trust. See Tolin.
 Policy: total revocation causes decedent’s estate to pass either under earlier will or intestacy.
 Partial Revocation:
 (1) By writing (UPC + most states) – “codicil” (executed according to Wills Act); prior will still stands as is and is valid to the extent it is
not revoked/amended by the codicil.
 (2) By physical act
 Majority & UPC (MA) – same as what you can do to the entire will
 If $ crossed out and increase written above  increase doesn’t apply with required formalities since it’s an increase and
not a revocation, but many courts would still allow it by applying DRR (see below; E&E at 164).
 For holographic wills, there’s an enhanced chance court will recognize partial revocation and increased gifts.
 Minority – only through subsequent writing. Policy: Might rearrange the plan without complying with formalities.
 Harmless Error in Partial Revocation by Physical Act
 Majority/UPC authorizes
 Minority/Restatement says no, only by subsequent writing. Policy: Same as above.
 Formality in Revocation by Writing or Physical Act:
 Formalities: follow specific provisions of state law. See Thompson v. Royall (where writing “null and void” on the back of the will’s
manuscript and codicil was invalid revocation under state statute), stricter application than UPC which (1) permits revocation by
cancellation, (2) whether or not cancellation touches any words of the will.
 Requires (1) doing one of the acts specified, (2) with the intent to revoke.
 Physical Revocation and Presumption of Revocation:
 Proponent of a will must prove that T did not revoke the will. Most easily done by presenting the original will. If unable to,
there’s a presumption of revocation.
 Lost Wills Statutes to overcome presumption of revocation:
 Presumption of revocation when will last known to be in T’s possession can’t be found or in destroyed condition. See
Harrison, but no presumption if will was last known to be in possession of other else.
 Rebutting presumption of revocation in lost will situations. See Turner (disinterested witness testified they saw will on
day of death)
 Harmless Error in lost wills is permissible with C&C evidence that decedent intended copy itself to be his will. See
Ehrlich (invoked HE to probate unexecuted copy of decedent’s will).
 Revoking the Original vs. Duplicate: Restatement (Third) and some states say revoking a copy is same as revoking original;
others say must be done to original (see In re Sullivan; Brewer); UPC – silent
 T accidentally lost Original  can be proved by copy, drafter’s notes/recollections, C&C evidence
 T prevented from retrieving original  constructive trust on unjustly enriched will beneficiary in favor of T’s heirs (Gushaw)
 T accidentally destroyed original  not enough to revoke original; may impose constructive trust (Tolin)
Dependent Relative Revocation (DRR) (revocation based on mistaken assumption may be ignored, previous will revived)
 Imposes a condition on T’s act of revoking a will – “Romeo and Juliet” revocation.
 If revocation is based on mistake of fact or law that another transfer will be effective, and T wouldn’t have revoked if he knew the truth, then
revocation may be ignored and previous will may be probated. See LaCroix (DRR applies since revocation was dependent on her expectation that the
new gift in the codicil would be valid – revocation failed to the extent that DRR preserved the gift). See Restatement (Third).
 Limits on DRR:
 Only applies if there’s an alternative plan of disposition that fails, or mistake is recited in terms of revoking instrument, or mistake
established by C&C evidence
 Court revives old will – does NOT revise new will to make it non-effective
 Minority: no revival unless re-executed w/ testamentary formalities or republished by reference in a later will.
 Turner: W1 leaves ½ to W, ½ to N. W2 leaves ½ to W, ½ to N in trust (which violated RAP). W1 can be revived because H would’ve never
made W2 if he knew there was a mistake. Court voided the gift to trust and passed by intestacy.
 Typewritten will leaving $1k to C. T crosses out $1k and writes $1,500. No holograph b/c no formalities (no testamentary intent). No DRR
because didn’t revoke the original gift. Here, must comply with formalities if you’re adding and not revoking prior gift!
Revival of Revoked Wills (will revived if T so intends): reinstatement of a will that T has already revoked (typically, T executed W1, then W2, which revokes
W1, then T later revokes W2). If doctrine of revival applies, previously revoked W1 is valid without having to be re-executed or republished by a later codicil.
 Majority/UPC 2-509 (MA): Upon revocation of W2, W1 is revived if T intends.

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2-509(a): if a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act…previous will remains revoked
unless it’s revived
 (b): if a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act…revoked part of previous will revived
unless evidence of the contrary (T’s intent)
 (c): if a subsequent will that revoked a previous will in whole or in part is revoked by another later will…previous will remains revoked
unless it or its revoked part is revived.
 Minority: no revival unless re-executed w/ testamentary formalities or republished by reference in a later will. See Alburn (destroying W2 didn’t
revive W1, but DRR revived W2 because it was a mistake).
Revocation by operation of law (rules of presumptive revocation based on a legislative judgment RE: T’s probable intent, which can be overcome by
evidence of contrary actual intent)
 Divorce: most states provide divorce presumptively revokes provisions in a decedent’s will to the decedent’s ex-spouse
 UPC authorizes revocation for wills and nonprobate transfers (usually covered in a separation agreement)
 Marriage: UPC provides a premarital will remains valid despite a subsequent marriage, but a surviving pretermitted spouse may take an intestate
share of deceased spouse’s estate unless will indicates that the omission was intentional
 Birth of Children: minority says marriage followed by birth revokes a will executed before marriage; majority and UPC says pretermitted child
statutes give a child born after execution of will a share

CONTRACTS RELATING TO WILLS (AND THE PROBLEMS THEY CAN CREATE)
Contracts Relating to Wills: can bind T to particular exercise of freedom of disposition; if valid under common law, enforced against Ts estate before
decedent’s estate is distributed. For example, in divorce contracts, joint wills (reciprocal trusts), mirror image (mutual) wills.
 Requirements: (1) Signed writing, (2) Expressly included in will, (3) Referenced with extrinsic evidence or a separate writing signed by T, (4)
Contract law (not law of wills) applies
 Remedies
 If will doesn’t comply w/ K  will is probated, but K beneficiary is entitled to remedy for breach
 Some states  damages or constructive trust, if no signed K  restitution (quantum meruit)
 Reciprocal wills do not create a presumption of an irrevocable contract. See Keith v. Lulofs (language of mirror image will is insufficient alone to
form a K; C&C evidence necessary to corroborate P’s testimony that wills were contractual.
 Dead Man Statutes – bars interested party from testifying about decedent’s oral statements
WILLS: CAPACITY AND CONTESTS
Generally

Grounds; standing to contest – failure to satisfy requirements of a valid will
o Improper execution: lack of mental capacity, insane delusion, nontestamentary intent
o Executed with formalities, but: undue influence, duress, fraud, tortious interference with expectancy
o Revocation

Remedies: unexecuted will can’t be probated, but frustrated intent can be honored in restitution to prevent unjust enrichment by imposed constructive
trust in favor of decedent’s intended B

Safeguarding against contests:
o Ante-Mortem Probate: allows T to institute an adversary proceeding to declare the validity of the will
o No-Contest Clauses (“in terrorem” clause) (Lipper): if devisee unsuccessfully contests  forfeits devise. If enforceable and paired by
substantial enough bequest, no-contest clause may deter contests (practice tip – leave something!)
CAPACITY TO MAKE A WILL
Will Challenges for Testamentary Capacity
 A will can be contested for lack of testamentary capacity if T is not of the age of majority and/or is not of sound mind at the time of execution
 Policy: Issue with worst evidence rule. Have to balance the tension between giving effect of a document that is NOT T’s free will vs. risk of NOT
giving effect to a document that IS T’s true effect.
Mental Capacity: challenge soundness of mind based on (1) Cunningham test for sound mind, AND (2) show insane delusion. A person may satisfy the
testamentary capacity test but still be suffering from an insane delusion that causes entire will or particular disposition to fail for lack of capacity.
 Mental capacity requires T be (1) 18 years or more and (2) of sound mind at the time of will’s execution.
 (1) Sound mind test/Cunningham: ability to know (1) nature and extent of his/her property, (2) natural objects of his/her bounty, (3) nature of
testamentary act being performed, and (4) how all these relate to constitute an orderly plan of disposing of his/her property.
 Proving lack of mental capacity: burden of proof:
 Majority: rebuttable presumption that T had sufficient capacity; contestant has burden of proof
 Minority (MA & NY): if contestant overcomes presumption, burden shifts back to proponent to prove T did have mental capacity
 Harmless error/substantial compliance: if you have signature, proponent will win on first round
 Proving lack of mental capacity, generally:
 The law doesn’t withhold from the aged, feeble, weak-minded, capricious, the right to make a will, provided they have a decided
and rational desire for the disposition of property. See Wilson v. Lane.
 Testamentary capacity can’t be destroyed by showing a few isolated acts unless they bear directly on and have influenced the act.
See In re Wright’s Estate.
 Testamentary capacity is higher than marriage capacity, but lower than contractual capacity. See Hoffman.
 Policy: dead people need less protection for wills…
 Lucid intervals are ok
 (2) Insane Delusion: A false perception of reality that T adheres to against all reason and evidence to the contrary. JXs are split.
 Requirements: (note that a mere false belief is not an ID)
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(1) T suffered from such a delusion, and
 insane = rational person test (Honigman anniversary cards)
 delusion not to be extremely insane (Strittmater “morbid aversion to men”; in Honigman, the court looked at whether H
had a reasonable basis for believing his wife was having an affair; based on anniversary cards he didn’t)
 (2) delusion materially affected the will
 T may have insane delusions on some matters but be capable of transacting business concerning unrelated matters. See
Breeden, where “I didn’t do it” didn’t invalidate the will since it wasn’t central; contra In re Strittmater “rabid
feminism” meant gift invalid”.
 Insanity doesn’t render one incompetent unless subject matter is so connected as to render the afflicted party incapable
Majority: if there’s any factual basis, belief is not an ID.
Minority: if rational person can’t reach same conclusion under certain circumstances, belief is an ID. Must exist at time of will execution.
 Howell: insane delusion regarding bamboo fungus was central to will
 In re Strittmater’s Estate: “rabid feminism” = insane delusion  gift invalid



UNDUE INFLUENCE
Undue Influence occurs where another substitutes his/her intent for T’s intent, and destroys T’s free agency at the time when the instrument was made.
 Four elements :
 (1) T is susceptible to UD
 (2) alleged wrongdoer had the opportunity to exert UD through access, communication, contacts
 (3) will contained an unnatural disposition
 (4) will appeared to be the effect of UD (causation)
 Circumstantial evidence admissible if tends to prove or disprove any elements (motive, untraditional disposition, opportunity and access,
relationship between T and alleged undue influencer, susceptibility and ability to resist, connection between will and alleged UD-er)
 JX split RE confidential relationships: majority – presumption based on relationship; minority – no presumption (need proof).
 Burden of Proof is on the contestants to prove the will was procured by UD, but may be inferred from circumstantial evidence.
 If presumption of UD is triggered (majority), burden shifts back to proponent to offer rebuttal evidence. Independent advice of council may
overcome presumption, but not always. See In re Kaufmann and Moses, where Ts relied on IC, but court threw it out. In absence of rebuttal
evidence, contestant entitled to JMOL.
 Remedies – restitution by way of constructive trust.
 Policy: will under UD isn’t what T really wanted since it represents wishes of influencer. Issue is worst evidence rule. Courts often impose
their own values in UD situations (Strittmater, Moses, Kaufmann). Extrinsic evidence can be a double-edged sword (letter worked in
Lipper but not in Kaufmann).
Confidential Relationships: law requires the person to be other-regarding b/c potential abuse of trust.
 Three types of relationships: fiduciary, reliant, dominant-subservient
 Majority: presumption of UD arises if there is (1) confidential relationship, and (2) suspicious circumstances present.
 Fiduciary who benefits bears the burden of establishing that the transaction didn’t violate his obligations.
 Sharis (violation – grandson with durable POA + control over T’s finances)
 Kaufmann (court imposed own values – threw out will devising inheritance to male companion)
 Moses (overruled) – court imposed own values, threw out will by elderly woman devising inheritance to young man
(attorney), even though he had nothing to do with drafting. Relationship gave rise to presumption. IC usually is enough
to overcome a claim of UD, but not here.
 Minority: no presumption of UD – need proof. See Lipper; Heinrich.
 Caregivers: some states apply presumption – no need to establish a confidential relationship or suspicious circumstances.
 Bequests to Lawyers/Fiduciaries: some states apply presumption where lawyer receives a bequest under will lawyer drafted unless lawyer is closely
related to T. Rule 1.8(c) lawyer shall not solicit substantial gifts.
Planning for and Avoiding Will Contests: Duress, Fraud, Tortious Interference
 Remedies: restitution/equity, constructive trust, NOT a will contest in probate court. Restatement (Third).
 Duress (undue influence + coercion): wrongdoer performs, or threatens to perform, a wrongful act that coerces the donor into making a donative
transfer that he/she would not have otherwise made. Done by physical coercion or some other improper threat. See Latham v. Father Divine (cult).
 Fraud: intentional misrepresentation, made knowingly and purposely to influence T’s testamentary scheme, that causes T to dispose of his/her
property in a way in which he/she wouldn’t have otherwise.
 Fraud in the inducement: intentionally misrepresents an extrinsic fact to T to induce T to execute a will in reliance on such. See McDonald.
 Fraud in the execution: intentionally misrepresents nature of document that T signed (deceived as to identity of instrument or contents of
the will) (must be directly on T).
 Requirements: (1) intent to deceive T, (2) for the purpose of actually changing T’s disposition in the will, (3) causation – only if donor
wouldn’t have made transfer had T known the true facts. See Carson’s Estate.
 Overlap with UD – if the statement is proven false, there is fraud. Easy to prove if disposition is 50/50 before, but unnatural after. Harder to
prove if instead of taking whole estate, you take a portion.
 Tortious Interference with Expectancy: intentional interference with an expected inheritance or gift (1/2 states). See Schilling v. Herrera (caretaker).
 Tort claim, not probate. Requirements: (1) existence of an expectancy, (2) intentional interference w/ expectancy through tortious conduct,
(3) causation, (4) damages.
 Tortious Interference During Life (best evidence rule) – see LaBonte v. Giordano, where disinherited brother made false statements about
sister to win mom over; mom changed will. Sister sued for TI while mom still alive, but court held brother acted continuously on T so
expectancy was never realized.
WILLS: CONSTRUCTION
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

Will Construction: The process of determining the meaning that should be attributed to a will.
Admissibility of Extrinsic Evidence: Starting assumption is the written will is the best evidence of T’s intent and extrinsic evidence shouldn’t be
admissible to vary its meaning (but is admissible if it goes to the validity of the will).
MISTAKEN OR AMBIGUOUS LANGUAGE
Mistaken and Ambiguous Language in Wills: a mistake arises because T believes something to be true when it isn’t, and the belief either is (1) not induced by
another person (arises unilaterally) or (2) induced by another person’s innocent misrepresentation.
 Not Ambiguous: See Gustafson v. Svenson “per stirpes” and Snide failure to include “inc” both not ambiguous; extrinsic evidence inadmissible
 Patent Ambiguity ($100,000, one thousand): uncertainty that is evidence on the face of the instrument. Modern trend is to admit extrinsic evidence.
See Estate of Cole.
 Two-Step test: (1) Examine surrounding circumstances – direct evidence of intent considered only if ambiguity persists; (2) Extrinsic
evidence may be used to determine what T meant by words used – but NOT to determine “implicit” intent.
 Latent Ambiguity (gift to “cousin Sara,” but there are two): an uncertainty that arises from extraneous and collateral facts which make meaning of
written instrument uncertain although the language appears clear and unambiguous. See In re Estate of Black (UCLA)
 Three Forms: (1) equivocation (description for which 2+ persons/things fit exactly; (2) personal usage (no person or thing fits exactly, but
partially), (3) no exact fit for equivocation.
 Burden of Proof: unambiguous reformation requires C&C evidence (UPC § 2-805 allows for reformation to correct mistakes); ambiguous doc
requires preponderance of the evidence.
Admissibility of Extrinsic Evidence in the Construction of Will
 UPC (not MA) admits extrinsic evidence – can correct mistakes through C&C evidence. UPC § 2-805 allows for reformation to correct mistakes. See
Duke. Policy: no reformation rule guards against false positives at the cost of false negatives.
 Mistake in the execution – error regarding identity or contents of instrument – may successfully contest if mistake regarding true nature of
instrument prevented T from having requisite testamentary intent
 Mistake in the inducement – T falsely believes a fact to be true and makes the will based on that erroneous fact – most courts wouldn’t fix a
mistake, but some courts will grant relief if both mistake and what T would have done but for mistake are stated in will
 MA & Majority: Plain Meaning Rule and No Reformation Rule:
 Plain Meaning Rule (no extrinsic evidence): plain meaning of words on a will cannot be disturbed by evidence that T intended another
meaning. No extrinsic evidence for patent ambiguities, but OK for latent). See Mahoney.
 No Reformation Rule: courts will not reform a will to correct a mistaken term to reflect what T intended. See Sanderson.
 Policy: worst evidence rule – can’t go back and ask T what he really meant. Guards against false positives at the expense of a
false negative. Result: sweeps in too much.
 Refusal to admit extrinsic evidence can result in problems for charitable bequests, where official name often differs from commonly known one. See
Howell, Smith, Snide.
Ad Hoc Relief for Mistaken Terms
 Falsa demonstratio non nocet (“mere erroneous description does not vitiate”): considering the language of the will w/ admissible extrinsic evidence,
if court comes to conclusion that T intended to pass something and can determine what that is, the fact that T gave the wrong description doesn’t
prevent will from taking effect with regards to the subject matter intended. See Arnheiter.
 Ad hoc relief can result in line-drawing issues. See Goldstein (court changed language of address upon determining T’s intent); Gibbs (details of
identification – name – are highly susceptive to mistake, can be overcome by substantial evidence).
Openly Reforming Wills for Mistake
 Restatement/UPC § 2-803 (not MA): expressly grants a court power to reform (rewrite) a will, even in the absence of ambiguity, if there’s (1) C&C
evidence that mistake of fact/law affected the specific terms of the will, and (2) C&C evidence of T’s true intent. Move away from Mahoney, and
towards Duke. See Erickson.
 Policy: in cases where there’s C&C evidence of mistake and intent, denying reformation would defeat T’s intent and result in unjust
enrichment. See In re Estate of Duke.
 Not in MA though – policy – MA thinks it’ll open litigation floodgates.

See Flannery – reformation of will, which would dispose of estate property based on unattested testamentary language, would
violate SoF.

Evelyn Shakir – monies meant money/securities, not real estate.
DEATH OF BENEFICIARY BEFORE DEATH OF TESTATOR
Lapse: a devise lapses (fails) when beneficiary predeceases T, or when the gift is void (gift to dog – see Russell).
 Common Law Default Rules for Lapsed Gifts: a gift made by a will is subject to a condition that the devisee survive T unless T specifies otherwise.
 Specific or General Devise: if specific (specific identifiable object) or general (comes out of property of the estate) devise lapses  devise
falls into residue
 Residuary Devise: if lapses  heirs of T take by intestacy
 No residue of a residue (common law)  passes by intestacy; NOT shared with other residue beneficiary
 Residue of a residue (modern rule/MA)  passes to other residue taker
Anti-lapse Statutes: antilapse may save a gift that otherwise would lapse and fail. Unless T expresses/provides otherwise, antilapse statute will substitute
another beneficiary for the predeceased devisee. Policy: the law presumes that T would prefer a substitute gift go to devisee’s descendants rather than for it to
pass in accordance with common law of lapse.
 Procedure:
 (1) if the predeceased B meets the requisite degree of relationship to T, and
 (2) the predeceased B has issue who survive T, then
 (3) the gift to predeceased B will go to the issue of the predeceased B,
 (4) as long as the will doesn’t express an intent that the antilapse shouldn’t be applied.
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Steps: Gift to A. A predeceases T. Gift lapses (or void b/c it goes to dog, etc., also lapses).
 Step #1: Has Beneficiary predeceased Testator?
 Yes  gift lapses.
 No  B gets gift.
 Step #2: If gift lapses, is this part of class gift?
 Class gift  re-distributed among surviving members of class
 Not class gift  keep going.
 Step #3: Is the lapsed devise specific, general, or residuary?
 Specific or general  devise fails to residue
 Residuary  continue
 Step #4: Is there an antilapse statute that applies?
 Step #5: Has Testator included words of survivorship indicating the antilapse statute shouldn’t apply?
 Yes  Antilapse statute doesn’t apply. What kind of bequest is it?
 Specific  goes to remainder
 General  goes to remainder
 Remainder  is this a “residue of the residue” state?
 If no residue of a residue state (common law)  goes to T’s intestate heirs.
 If NOT a no residue of the residue state (MA/modern)  goes to other residue Bs
 No, just wrote “if X survives me”  usually not enough to prevent antilapse from applying
 If antilapse statute applies (and T hasn’t included words of survivorship), is B covered? (does predeceased B meet the
requisite degree of relationship to T?)  yes if B was T’s kid; no if B was a friend.
 If B is covered by the antilapse statute, does the B have issue?
 Issue  gift to predeceased B will go to the issue of the predeceased B as long as the will doesn’t express an intent that
the antilapse statute should not be applied.
 No issue  common law rules above.
 Degree of Relationship Required by Statute: statutes limit antilapse protection to selected family categories (children), but jurisdictions differ in
terms of who is covered – only if devisee bears particular relationship to T specified in statute (MA/UPC limits to grandparents or descendants of
GP’s; 1990 UPC added stepkids). Practice Tip: be careful drafting.
 Words of Survivorship, Preventing Anti-Lapse: antilapse are default rules that can be overridden in the will, with clear words of survivorship.
 UPC: Words of survivorship are insufficient to override an antilapse statute in the absence of additional evidence. See Ruotolo. Policy:
survivorship language is boilerplate.
 MA: Words of survivorship are sufficient to override an antilapse statute. See Bankers Trust v. Allen. Policy: insulting to Ham.
Class Gifts are an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal
or some other definite proportions, the share of each being dependent for its amount upon the number of persons.
 Built-in right of survivorship – if one member of class predeceases T, share is redistributed among surviving members of class
 Whether a gift to a group is a class gift is determined by T’s intent. If unclear, courts focus on how beneficiaries and number of shares are described.
 (1) Beneficiaries are identified by a term of relationship (if T was group-minded; intent)
 (2) Number/amount of shares are subject to fluctuation
 If uncertain  beneficiaries take as class, generally
 If certain, and not dependent for its amount upon # who will survive  NOT a class gift + pass to remaining estate. See Dawson.
 A gift to named Bs who form a natural class may be construed as a class gift if court decides T would’ve wanted survivors to divide share rather than
for it to lapse
 Antilapse: if class member predeceases T, surviving members of class divide total gift, including deceased member’s share, unless antilapse applies.
 If antilapse statute applies  gift passes to issue of predeceased class member.
 Policy: Assumes T did not have the class member in mind and did not want his descendants to take.

CHANGES IN PROPERTY AFTER EXECUTION OF WILL
Ademption by Extinction (specific gift is gone): subject of specific devise isn’t in the estate at the time of Ts death  gift fails under this doctrine.
 MA/Identity Theory: under identity approach, an irrebuttable presumption arises that the gift was revoked  B takes nothing.
 Modified intention theory – an expression of intent in the indefinite future to sell assets for support is insufficient to cause an ademption
under the modified intent theory, where T isn’t aware that the specific action has taken place. See Anton.
 UPC § 2-606/Intent Theory: the latest version of the UPC creates a presumption against ademption. If T has acquired property to replace the original
specific gift, the B gets the replacement property. If T has not acquired replacement property, the B is entitled to the monetary equivalent of the
specific gift if it can prove ademption is inconsistent with T’s intent.
 Practice Tip: each specific gift should contain an express statement of T’s intent should the gifted property not be in the estate.
Abatement (estate lacks $ to satisfy all devises in a will): after debts and expenses, residuary gifts should be reduced first, general gifts second, and specific
gifts last. Gifts abate pro-rata.
 Some states permit the court to vary from this order if inconsistent with T’s overall testamentary scheme.
 Practice Tip: Sound drafting by placing a dollar cap on devises to substantial devisees in the form of shares of the residue.
Stock Splits and Increase: subject to showing contrary intent, a devisee of stock is entitled to additional shares received by T as a result of a stock split.
 UPC 2-605(a)(1) & Restatement–B gets target dollar amount, rather than exact number of shares. UPC gives B the benefit of any change in the stock
initiated by a corporate entity as long as at the time of execution, T owned stock that matched the description of the gift.
Satisfaction of GENERAL Pecuniary Bequests: failure of a testamentary gift b/c T has already transferred property to beneficiary between the time of will
execution and time of death. Modern trend is to permit gifts of real property to be satisfied as well.
Exoneration of Liens: Modern trend – B takes subject to debt absent express clause directing debt be satisfied. B will likely disclaim or rebut to show T
intended to devise without mortgage and with it being paid from residuary estate.
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TRUSTS: CHARACTERISTICS AND CREATION
THE TRUST IN AMERICAN LAW
Trust: a legal arrangement in which a settlor/donor/grantor conveys property to a trustee to hold as a fiduciary for 1+ Bs.
 People:
 A trustee takes legal title to property, which allows them to deal with third/parties as owner of property
 Beneficiaries have equitable title1 to trust property, which allows them to hold trustee accountable for breach of trustee’s fiduciary duties.
The trustee owes a fiduciary duty to Bs to manage trust property in their best interests.
 Special protections/remedies: (1) personal claim against trustee for malfeasance, (2) creditors of trustee can’t attach trust interests
(but creditors of Bs can), (3) claim if T wrongfully disposes of property
 Same party can be settlor, trustee, and B, as long as there is another co-trustee or B (otherwise, merges/terminates because interests are
identical)
 A trust is created the moment it is funded. A trust will not fail for want of a trustee – a court will appoint one.
 Types of Trusts:
 Testamentary Trust – created by will, arises in probate. Irrevocable; doesn’t go into effect until T’s death.
 Inter vivos Trust – created during settlor’s lifetime by declaration of trust or deed of trust as a will substitute to avoid probate. Revocable or
irrevocable, depending on donor’s intent.
 Revocable – can be changed at any time while T is alive, but becomes irrevocable at time of death
 Irrevocable – can’t be changed by donor after initial set-up (subject to limited exception, i.e., administrative portions).
 Writing requirements: If trust is testamentary or holds land, must be in writing to satisfy Wills Act/Statute of Frauds
 Purposes of Trusts: instrument for conveyance and management of property that separates the benefits of ownership from the burdens of ownership;
good for minor child/incompetent person; avoid probate (inter vivos); estate tax planning/savings; split interest situations
 Bifurcated Gift – one party (settlor) gives property to a second party (trustee) to hold and manage for the benefit of third party (B). Trustee holds
legal title to trust property and manages trust property; Bs hold equitable title or beneficial ownership. Asset partitioning; fiduciary administration.
 Execution tips:
 MUST move money into the trust. See Brainard (where gift invalid b/c failed to move the stock into the trust); Pascal (valid b/c did it)
 Moving real property into a trust – deed signing
CREATION OF A TRUST
To have a valid trust, (1) the settlor must have the intent to create a trust, (2) the trust must be funded (specific property, “res”), (3) the trust must have
ascertainable beneficiaries, and (4) the terms of the trust may have to be in writing.
(1) Intent to Create a Trust: intent rises any time one party transfers property to a second party for the benefit of a third party. If inter vivos  words of intent
will be in declaration of trust or deed of trust. If testamentary  words in the will.
 Informality of intent – no particular words required. See Jimenez.
 T’s intent may be inferred from the language and structure, in light of all the circumstances. See Lux.
 Precatory language (“wish,” “hope,” “recommendation” that donee will use property for benefit of another) does NOT satisfy the intent requirement
because this language doesn’t clearly indicate whether T intended to create a trust.
 See Colton – “recommending” use for care and protection of T’s mother found to be trust
 See Brill – devise to A “with understanding she will take care of mom” found not to be trust
 Gifts that fail for want of delivery: gifts require delivery, but an inter vivos gift will be valid despite lack of manual delivery where delivery was
impracticable and donor took steps to transfer title that constitute constructive delivery.
 Hebrew University Ass’n I: not a trust b/c no indication of intent; also, not a gift b/c lacked delivery and acceptance.
 Hebrew University Ass’n II: gift b/c donor gave university catalog of books which constituted symbolic delivery of gift + intent.
Constructive delivery.
(2) Trust Property (res): a trust can’t exist without a specific res. Formalities associated with the type of property being transferred used to be key, but now the
modern trend is to focus on the intent to transfer the property interest rather than formalities.
 Must be transferable and ascertainable; described with definiteness and certainty. See Unthank (donor’s letters didn’t indicate any funds that
would’ve constitutes res; letter just conveyed intention and notation was an unenforceable attempt to bind estate to continue making payments).
 Future Profits and Expectancy: an expectation or hope of receiving property in the future doesn’t come into existence unless the trust property is in
existence at that time. Restatement (Third).
 Brainard: gift of future profits from stock trading invalid b/c no profits at the time of declaration; didn’t move property into trust.
 Pascal: gift of future profits valid (not trust); present/enforceable gift may be completed by delivery of letter in which donor assigns to the
donee as a gift and the right to receive a share of possible future profits, even though those future profits my not accrue.
 Pour Over Trusts can sit as an empty shell w/o funding, but doesn’t arise from a promise to bind donor’s estate to make such payments. See Unthank.
(3) Ascertainable Beneficiaries: generally, there must be one or more ascertainable Bs identifiable at the time of creation or within the RAP who can receive
the beneficial interest from and judicially enforce the trust against the trustee.
 Ascertainable if identified by name or if there’s an objective method of identifying.
 Clark: no private trust b/c lack of certainty in defining Bs of trust as “such of my friends as they, my trustees, shall select.” Bs may be
designated by class, but class must be capable of delimitation (here, no statutory limitation, no sufficient criterion for trustees to choose
individuals from class).
 Bs need not be ascertained when trust is created; need within applicable RAP – “for the benefit of my future kids” OK as long as there are
ABs during that period.
1
Equitable interest in trust property: property interest of beneficiary, so absent language in trust, they can be assigned/attached by B’s creditors.
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Pets and Other Non-Charitable Purposes (Honorary Trusts): where private trust would otherwise fail for want of ABs, but the purpose of the trust
is such that it would be impossible to have ABs, states tend to allow enforceable trusts as long as trustee agrees to honor terms. Policy: pets don’t
have standing in court to hold trustee accountable; ok if “to all dogs” b/c state AG could do so.
 Searight: gift made for the benefit of an animal who doesn’t have standing – person receiving the gift can’t be compelled to carry out T’s
wishes. Transferee not under legal obligation to carry out settlor’s purposes, but if declines to do so, property reverts back to settlors.
 Technically, trusts are subject to RAP and that may cause the trust to fail. The pet is not the validating life.
 Statutory Pet and Other Non-Charitable Purpose Trusts (every state has one)
 UTC authorizes court to reduce amount of trust property if excessive. See Helmsley.
(4) Writing Requirement: doesn’t need to be in writing, except for testamentary trusts (Wills Act) or inter vivos trust of land (Statute of Frauds).
 Oral Trust: C&C evidence. UTC § 407. Fournier: no oral trust created when letter found saying $ was to be used to reimburse 3 people (contrary to
earlier determination that the trust was created orally when T gave his friends $400k to hold until death, then to distribute for sole benefit of sister).
 Attempted Oral Testamentary Trusts: Secret v. Semi-Secret : where a B under a will agrees to hold the property in question as a trustee for the benefit
of others, but terms of testamentary trust are not in the will (or incorporated by reference), testamentary trust fails for want of writing. Under
common law approach, key is whether failed testamentary trust is secret or semi-secret.
 Secret Trusts (valid): a will that purports to make an absolute gift but where there is actually an agreement between the beneficiary and T
that B will hold the property in trust for a person that T had separately indicated. Think unperformed promises made in contemplation fo
death…court may impose constructive trust.
 Extrinsic evidence permitted – absolute disposition on its face, but oral instructions in secret.
 Promise by person to T is enforceable as a constructive trust imposed on devisee.
 Failure to Create Express Trust: Semi-Secret Trusts (invalid): If the will indicates that the devisee is to take the bequest as trustee, but
doesn’t identify the B, the trust fails for want of an AB. Takes as trustee, but not enough evidence to specifically identify B renders it an
unenforceable semi-secret trust.
 Extrinsic evidence not permitted. Olliffe: will provided discretion to determine the manner in which he would distribute the
residue to carry out T’s wishes, which she conveyed to him orally, but the will didn’t authorize him to receive the gift outright.
Would’ve been fine if she made the bequest outright, with terms of the trust communicated outside the will.
 Bequest clearly provides the devisee is not to get the beneficial interest, but doesn’t adequately indicate the true B under the
appropriate Statute of Wills.
 Remedies: Some courts have declared these trusts ineffective because of SoW and have mandating a resulting trust for decedent’s
estate. Other courts  constructive trust.

NON-PROBATE TRANSFERS AND PLANNING FOR INCAPACITY
Intestacy statutes and the decedent’s will controls only property included in the decedent’s probate estate. Before distributing property under intestacy or a will,
first have to determine which property is part of the probate estate and which property has its new owner determined in some other way.
THE RISE OF NON-PROBATE TRANSFERS
Generally: The law provides a vast array of property disposition methodologies that prevent property from being included in the probate estate. You can opt out
of intestacy by (1) executing a valid will, or (2) creating a valid nonprobate instrument (inter vivos trusts [revocable/irrevocable; NOT testamentary b/c those
are will trusts subject to probate], life insurance, POD/TOD K’s, pension plans, retirement accounts [IRAs – governed by ERISA]).
 Probate v. Non-Probate Systems: (1) Wills allow T’s property to pass at death; can be changed at death, (2) nonprobate/will substitutes allow a
transfer of property upon death.
 Policy Issues: (1) A will substitute does NOT need to be executed with Wills Act formalities (writing, witnesses, signature) to be effective, but
financial intermediaries will almost always require B designations be signed and in writing; (2) Policy-based subsidiary law of wills (slayer,
revocation upon divorce, lapse) apply to will substitute to an extent.
INTER VIVOS REVOCABLE TRUSTS (MOST POPULAR NON-PROBATE TRANSFER)
Generally: IRVTs are where a settlor2 expressly, impliedly, or by law, holds + reserves right to revoke. Modern trend: most similar to a will in nature and
function, most flexible nonprobate asset. Practice Tip: multiple will substitutes result in an estate plan without coordination, so just make a revocable trust.
 Revocability:
 Common Law approach: if silent as to revocability  irrevocable
 If revocable w/ express particular method  only method that suffices
 If revocable + no particular method  any method demonstrating intent suffices
 Modern trend/UTC: modern presumption of revocability
 (1) Trust is revocable unless it expressly provides that it is irrevocable;
 (2) if revocable + expressly provides for particular method, that method is not exclusive unless trust expressly so provides;
 (3) subsequently executed will can expressly or implicitly revoke trust in whole or in part;
 (4) where there is a particular method of revocation, substantial compliance with the method of revocation is all that is necessary
to revoke trust
 Creditors’ Rights: modern trend: where settlor is life B of revocable trust, creditors can reach property even after settlor’s death. State Street.
 Trust Construction Issues: modern trend: apply will construction rules to will substitutes.
The Wills Act and a Present Transfer
 Present Transfer Theory (legal fiction, abandoned): Revocable trusts are valid because they are a “present transfer,” not testamentary. See Farkas.
 Farkas v. Williams: IV transfer valid b/c donee received a right in the trust property upon creation (contingent equitable interest in
remainder passed) even though donor retained right to dividends. Trust conceptually made an IVT; Williams received right upon creation +
2
Settlor as settlor retains power to revoke and take back trust property. Settlor as trustee has control over management of property.
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took future interest that would become possessory at Farkas’ death. Issue: Whether a revocable trust should become effective to pass
property at death w/o Wills Act formalities. Held: No need to comply w/ Wills Act b/c of current present transfer theory for beneficiary.
 Abandoning the Present Transfer Fiction: Policy: courts were trying to make revocable trusts effective to pass property at death without formalities.
Restatement (Third) says Statute of Wills doesn’t require wealth to transfer at death by probate. Focus is on settlor’s intent now – if the donor intends
that trust will become presently binding and nothing is left for settlor to do to complete transaction, trust is NOT testamentary.
 While a trust is revocable, trustee only owes duties to the settlor. Bs interests are secondary, an expectancy at best. See Fulp.
 Fulp: trustees owe no duty to remainder or contingent Bs while trust is revocable – settlor/trustee owes only a duty to self. Donor
placed family farm in revocable trust, named herself primary beneficiary. Sold it to son at a discounted price. Daughter argued
mother breached fiduciary duty by selling it at discounted price. Held: Mother was free to sell the farm as trustee without
breaching any fiduciary duty. Settlors of revocable trust continue to use trust property during their lives and retain the power to
revoke/amend, so trustees do NOT owe a duty to remainder/contingent Bs while trust is revocable.
 UTC § 603: (a) while the trust is revocable…rights of the beneficiaries are subject to the control of, and the duties of the trustee
are owed exclusively to, the settlor.
Revoking or Amending a Revocable Trust: modern rule – presumption of revocability unless otherwise declared to be irrevocable. Depends on donor’s
manifestation of intent. UTC § 602(c). (UTC § 602(a): an inter vivos trust is revocable unless declared to be irrevocable.)
 (1) by substantial compliance with the terms; see Patterson: Woman amended her trust to remove son; state legislature passed UTC version that gave
donor full control over rights of Bs and many ways to revoke/amend. Adopted substantial compliance, so if intent was clear, that’s enough.
 (2) by later codicil or will expressly referring to the trust or otherwise devising the property ;
 (3) any other method with C&C evidence of intent;
 Revocation by physical act? Maybe, but probably not.
The Subsidiary Law of Wills: a will substitute is a nonprobate will, and should be subject to substantive restrictions on testation/rules of construction when
appropriate. Restatement (Third). Policy: there are important policies underlying Wills formalities – shouldn’t be evaded by calling the transfer “nonprobate.”
 Creditors and Revocable Trusts:
 Modern rule: settlor’s power to revoke trust + take back trust property is equivalent to ownership; trust property is subject to claims of
settlor’s creditors during life AND upon death. State Street. Expands creditors’ rights to reach and exercise a settlor’s power to revoke,
subjecting all of property subject to power to revoke to creditors’ claims. UTC § 505(a)(3) (2000).
 Spendthrift Clause: (1) prohibits B from selling, giving away, or otherwise transferring B’s interest; (2) prohibits B’s creditors
from reaching B’s interest in the trust. UTC § 502.
 Post-Death: Settlor’s creditors are permitted to reach the property in the trust to the extent the settlor had the power to use those
assets during his or her life. State Street Bank. Policy: A settlor’s power over trust property that’s subject to a power to revoke is
functionally indistinguishable from one’s power over one’s money in the bank.
 Creditors and Other Nonprobate Transfers: Creditors can reach decedent’s assets in probate estate + in revocable trust, but NOT decedent’s interest in
joint tenancy property, retirement benefits, or life insurance (if policy is payable to surviving spouse and/or children). UPC 6-102 permits decedent
creditors to reach nonprobate transfers (EXCEPT JTs in real estate) if probate estate is insufficient to pay debts.
 Spousal Rights and Revocable Trusts:
 Divorce: Invalidates any testamentary disposition to ex-spouses. UPC 2-804 (including revocable trusts). UPC is broader than Clymer,
which limits its holding to unfunded trusts (reasoning: revocable trust was part of the larger estate plan and integrally related to the will)
 ERISA preempts state divorce statutes with respect to ERISA-covered pension plans and life insurance policies that are employee benefits
where the state statute affects the administration of an ERISA-governed plan in a way that interferes with ERISA’s objectives. Egelhoff v.
Egelhoff. Applies to 401(k)’s and pensions – NOT IRAs. End-runs around Egelhoff decision are prohibited. Hillman.
 Abatement: specific rules of abatement are same as those in wills
 Ademption: specific rules of ademption apply to revocable trusts
 Lapse & Antilapse: extends antilapse concept from wills to future interests in trusts as if settlor were the T who died on the distribution date.
Generally same rules as that for wills
 Capacity: UPC 2-707 – capacity to create, amend, revoke, or add property to a revocable trust, or to direct the actions of a trustee of a revocable trust,
is the same as that required to make a will. Policy: State has an interest in protecting living donors, but not dead ones, from impoverishment.
Revocable Trusts in Contemporary Practice
 Consolidated/Unified Estate Planning: by naming trustee as the B of the settlor’s will substitutes AND as the B under the settlor’s will (pour-over
will), the settlor can consolidate the disposition of all property under one instrument.
 Pour-Over Wills: a clause in a will making a gift to an inter vivos trust, where a T wishes to obtain the benefits of a trust but not want to create the
trust in T’s will. (1) inter vivos trust is easier to amend than a will, (2) IVT can serve as receptable for a variety of other assets, such as life insurance
proceeds and annuity payments, to provide a unified disposition of property, (3) T may pour-over into a trust created by someone else.
 Statutory Validation of Pour-Overs into Unfunded Revocable Trust: UTATA (1991) a will can pour-over the T’s probate assets to the thenacting trustee of the trust that he executes if T thereafter executes the trust instrument before dying.
 Theories prior to statutory authorization: (1) Incorporation by Reference, (2) Acts of Independent Significance
OTHER WILL SUBSTITUTES
Designation Changes
 Majority (strict compliance): can only change a B designation in the manner set out in the policy; designation of an alternate B by will is ineffective
 Cook: court didn’t apply revocation by operation of law doctrine to non-probate transfers; thus, divorce didn’t revoke contractual provision
in favor of ex-spouse and life insurance proceeds went to ex-spouse, as the contractual beneficiary designation controlled.
 Three ways to change a beneficiary designation: (1) Company waives strict compliance + issues new certificate; (2) impossibility precludes
H from changing designation; impossible to comply literally with regs; (3) H does everything in power to change B but company refuses
 Minority (clear identification): T can change B of IRA account by will if will (1) sufficiently identifies the policy and (2) shows an intent to change
beneficiary (but not in Nunnenman, where will failed to sufficiently identify IRA, by saying “all my estate and property every kind and nature”)
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Life Insurance: contract between owner of the policy and an insurer. In exchange for owner’s payment of premiums, insurer promises to pay stated amount
(proceeds) to beneficiary, when a designed person, insured, dies. Shifts economic risk of premature death to an insurance company; great tax shelter (if
someone died, it’s income tax-free; no taxes on it, but still included for estate tax purposes). No need to conform with Wills Act Formalities.
 Subsidiary laws of wills: modern trend/UPC approach expands historical will substitute exemption for life insurance contracts and applies it to any
and all contracts and instruments with POD clauses.
 Revocation by operation of law applies to wills only. Cook: insurance policy expressly provided that owner of the policy may change B by written
notice to the company – he didn’t do that, but executed a holographic will after his second marriage. Held: Divorce didn’t revoke the contractual
provision in favor of the ex-spouse and the life insurance proceeds went to the ex-spouse, as the contractual beneficiary designation controlled.
Pensions and Retirement Plans
 IRAs: Form of a defined contribution plan, most commonly used by self-employed individuals. Governed by the agreement between the individual
account holder and custodial institution. Not subject to ERISA. Nunnenman: while the donor expressed an intent to leave all of his estate (including
his IRA) to his mom in a holographic will, the will did not sufficiently identify the IRA account and didn’t change the designation
 401(k): an employer-established contribution plan, in which the ER and EE will contribute and fixed percentage of the EE’s salary to an individual
account set up for the individual. Subject to ERISA.
 Pensions: Originally used to secure retirement of workers and spouse; propertied persons now use it for tax advantage saving and investment during
life culminating in nonprobate transfer at death. Subject to ERISA.
 ERISA: See above section on ERISA.
Pay-on-Death and Transfer-on-Death Contracts: 1969 UPC authorized POD designations in all K’s; almost every state follows. § 6-101. Many states enacted
Uniform Transfer on Death Security Registration Act, permitting POD designations on corporate securities. Others expand POD designations to cover other
tangible assets. Some community property marital property jurisdictions permit spouses to agree to hold community property with survivorship rights.
 Multiple-Party Bank/Brokerage Accounts: when a joint bank account is established w/ funds of one person, a gift of funds is presumed; presumption
may be rebutted only by C&C evidence to the contrary. Varela (evidence inadequate to show that he didn’t intend to make a gift of funds.
 UPC: Presumption is contribution rule – joint accounts belong to the named parties during their joint lifetimes in proportion to the net
contribution of each to the sums on deposit, unless there is C&C evidence to the contrary.
Right to withdraw while O is still alive? Receives money on death?
Joint & Survivor Account
Yes
Yes
(can withdraw & receives on death)
POD Account
No
Yes
(can’t withdraw, but receives on death)
Agency Account
Yes
No
(can withdraw, but doesn’t receive on death)
Non-Probate Transfers of Real Property
 Joint Tenancy & Tenancy by the Entirety (upon death of one tenant, the surviving tenant owns the property absolutely). Because a JT’s interest in the
property is extinguished at death (creditor protection), she can’t devise her interest in the property by will – if JT wants interest to go to someone
other than the JT at death, she must sever the JT during life, converting it TIC.3
 Trusts for Real Property: Generally, a bad idea. Reasons to put house in trust: guard against incapacity situation, property you want to keep in the
fam, owning real estate in multiple states…
 Nominee Trust (MA): trustee is to do nothing except what they are directed to do by the Bs (no fiduciary duty); like an agent
PLANNING FOR INCAPACITY
Management of Property: Conservatorships, Revocable Trusts and Durable General Powers of Attorney: in planning for incapacity, take into consideration
individual’s wishes w/ respect to how his/her property should be managed and to his/her health care + disposition of the body.
 Approaches for Handling Property of Minor (see Long Outline): (1) Guardianship, conservatorship; (2) Custodianship; (3) Trust
 Approaches for Handling Property of Incapacitated Person:
 (1) Conservatorship: conservator appointed to hold + manage property for minor–judicial appointment default option if sufficient evidence
that one lacks capacity. Broader than a guardianship. Drawback: requires due process b/c deprivation of individual liberty.
 UPC – court pay appoint a conservator if they find: (1) by C&C evidence that the person for whose benefit the conservatorship is
sought is unable to manage property and business affairs because of an impairment in the ability to receive and evaluate
information or make decisions, and (2) by a preponderance of the evidence that the person has property that will be wasted or
dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the person
 (2) Custodianship (terminates at 18/21)
 (3) Inter Vivos Revocable Trust: Best legal tool available for opting out of the default conservatorship option. A well-drafted trust will
expressly provide a mechanism for determining when the settlor has become incapacitated.
 (4) Durable Power of Attorney (only available for adults, not kids): Standard power of attorney automatically terminates upon the
incapacity of the principal party. The durable power of attorney continues despite the incapacity of the principal. (A power of attorney
appointment typically becomes effective upon the party executing the paperwork). Creates an agency relationship in which the agent
(attorney in fact) is given written authorization to act on behalf of the principal.
 Created via “springing power” – effective upon P’s incapacity, or “durable power” – effective upon signing.
 Always a creature of statute.
 Must be in writing (varies): incorporate by reference a statutory list of power, or can be drafted to suit particular wishes.
 Durable power remains effective during incapacity of principal and until principal dies : (1) P can revoke; (2) P retains power to
withdraw; (3) 1+ persons can be attorneys in fact, but docs must state how they act; (4) some things are so personal that other
people can’t do it for the principal.
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Tenant in Common: probate asset; each tenant has the right to determine where his share goes depending on his will
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Kurrelmeyer: Held, the durable POA did have the power to create a trust b/c express words in instrument included
conveyance of RE & a clause to “do” & perform all and every act and thing whatsoever necessary to be “done.”
Health Care Decisions: which one has capacity, one has the constitutional right and power to control the health care one receives, including the right to refuse
medical treatment. People may exercise their power over health care decisions by an advance directive. Absent such, responsibility falls to spouse or next-ofkin. This does NOT include same-sex couples, cohabitating non-married couples, or anyone who values opinions of friends.
 Standard: agent is held to a substituted judgment standard of what the patient has or should have chosen in that situation.
 Advance Directives & Healthcare Proxy: a 3rd party can make HC decisions on behalf of incapacitated person, only when supported by C&C
evidence that this is what the incapacitated person wanted. Includes instructional directives, proxy directives, hybrid of combined directives, durable
general POA. Agent must follow instructions unless contrary to provider’s conscience or generally accepted medical practice
 Bush v. Schiavo: Suffered cardiac arrest and never regained consciousness. In 1998, her husband petitioned the guardianship court to terminate lifeprolonging measures. Her parents opposed. Following a hearing at which both sides presented evidence, guardianship court found by C&C evidence
that she would’ve elected to cease life-prolonging measures if she were competent to make her own decision. This highlights the importance of why
clients should plan for incapacity up front.
Disposition of the Body: All states have adopted some form of the Uniform Anatomical Gift Act – give body or parts for research/transplant. Act permits
decedent to identify a specific individual. Not much uniformity. Do NOT put directions in will. Organ donation through driver’s license program.

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LIMITS ON FREEDOM OF DISPOSITION: PROTECTION OF THE SPOUSE AND CHILDREN
While the laws of a few states deem a pre-marriage will totally ineffective upon marriage causing the deceased spouse’s entire estate to pass under intestacy,
most states revoke only a portion of the will, and then only if the will does not provide the SS w/ a sufficient amount of property.
RIGHTS OF THE SURVIVING SPOUSE
Separate v. Community Property: The scope of a SS’s right to the share of a deceased spouse’s property depends on whether jx follows separate or
community property approach.
 Community Property (SS doesn’t need forced share to be protected; cannot disinherit b/c each already owns ½ community property): under
community property states, spouses own undivided interests in the property they acquire from earnings during marriage. Thus, the marriage of a
testator typically has no impact on the property disposition provided for in a premarriage will. Title theory.
 Exceptions: spouses retain separate ownership of property brought to the marriage, or inheritance/gifts received over course of marriage.
 If one dies, partner gets half the assets no matter what – death dissolves the community. Can opt-out of community property treatment.
 Separate Property: Elective Share (can disinherit spouse if spouse overrides default application of elective share statute): to protect SS from being
disinherited or receiving a relatively small share of estate, SS is given the right to a forced/elective share of deceased spouse’s estate.
 Elective Share: Although each spouse owns his/her earnings acquired during marriage as his/her own separate property, upon death, the
elective share doctrine provides that SS is entitled to a share of deceased spouse’s property regardless of terms of deceased spouse’s will.
 Based on support theory – marriage entitles an obligation of 1 spouse to support the other after death.
 Pretermitted spouse is entitled to an elective (forced) share in all but 1 separate property state (Georgia)
 3 scenarios (see Long Outline): (1) Surviving issue; (2) No issue; surviving kindred; (3) No issue or kindred
 Similarities Among States: protects spouses only; no adjustment for length of marriage (Neiderheiser); usually take life estate,
not outright (support theory)
 Differences Among States: How much spouse is entitled to (typically 1/3 of estate subject to ES); What property is subject to ES
(nonprobate property included?)?
 Definitely probate.
 Unclear whether revocable trusts and other nonprobate property are included.
 POD accounts (legislative/policy decision): Court declined to expand ES statutes in Myers, where legislature
only listed 4 specific items in recently amended statute which didn’t include POD.
 Revocable Trusts: Sullivan: ES statute applied to assets held in revocable trusts created + controlled by
deceased spouse. Court declined to extend ES to trust created by 3 rd party.
 Modern trend – expand reach of elective share to limit deceased spouse’s ability to avoid the doctrine by
nonprobate arrangements. Jurisdictions split on how best to identify when the elective share doctrine should
be expanded to cover nonprobate assets.

Illusory Transfer Test: analyze whether nonprobate arrangement really constituted inter vivos
transfer or whether decedent retained such an interest in property that the transfer’s more
testamentary than inter vivos

Intent-to-Defraud Test  if T intended to defraud someone of elective share, it will count toward
elective share. Thompson.

Present Donative Intent Test: whether deceased spouse really had a present donative intent at the
time he/she created the nonprobate transfer. If not  elective share
 Augmented Estate (UPC 2-201–2-214): Many states apply the elective share formula on an augmented estate rather than the net probate
estate. Ensures the surviving spouse receives half of the marital property. (see Long Outline)
 Step #1: Elective share of decedent is 50% of the value of marital property portion of the augmented estate
 Step #2: Augmented estate, UPC § 2-203(a): Includes the sum of decedent’s net probate estate + decedent’s nonprobate transfers
to others + decedent’s nonprobate transfers to surviving spouse + surviving spouse’s probate and nonprobate transfers to others.
 Step #3: Marital portion of the augmented estate is the augmented estate multiplied by the percentage determined by the length of
marriage under § 2-203(b): Surviving spouse’s share will increase over time.
 MA Elective Share (not augmented estate):
 (1) Decedent leaves surviving spouse + issue  spouse gets 1/3 real & personal property; $24k outright with life estate in the rest
 (2) No issue; surviving kindred  spouse gets ½ real & personal property; $25k outright with rest in life estate
 (3) No issue or kindred  spouse gets ½ real & personal property outright
 EXAM TIP: The MA elective statute is bad, but in some examples, it pretty much parallels the UPC. Only instance in which
spouse is worse off under MA is if there’s a massive nonprobate transfer to child, and it’s not a revocable transfer covered under
Sullivan. Under MA, revocable trusts are included; other nonprobate transfers are not. MA didn’t adopt the UPC b/c there was a
perception that massive nonrevocable transfers don’t really happen in real life.
 Prenups: Overrides the presumption of fraud if, in the court’s view, the agreement made inadequate provision for spouse in light of the other
spouse’s wealth. Requirements for party opposing enforcement: (1) Agreements govern in event of death and divorce, (2) Must be voluntary and not
unconscionable (party opposing enforcement had a fair and reasonable disclosure of the other party’s property and finances), (3) Independent counsel
isn’t necessary, (4) Adequacy of financial disclosure is necessary. Reece: upheld the prenup b/c parties entered into it voluntarily and knowledgeably
(spouse was not mislead, she had an opportunity to ask questions and discover the extent of the other’s holding but failed to do so)
Unintentional Omission of Spouse from Pre-Marital Will: modern law (UPC) provides a rebuttable presumption that T did not intend to disinherit his/her new
spouse. Statutes give surviving spouse omitted from a premarital will an intestate share, otherwise leaving the premarital will intact (or entitled to elective share
in separate property states, where spouse has a will). Presumption is rebuttable and may be overridden (see Long Outline). If presumption isn’t rebutted, the
omitted spouse generally receives his/her intestate share of T’s probate estate.
 UPC 2-301: Entitlement of Spouse; Premarital Will. Prestie: An amendment to a trust that provides for a spouse is inadmissible to rebut presumption
of revocation and override the presumption of wife’s entitlement to intestate share. Wife entitled to property in trust & intestate share.
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“Migrating” Couples and Multistate Property Holdings: in moving from separate to community, quasi-community property attempts to deal with the risk that
couple’s assets will be primarily separate property and spouse will lose elective share protection. Deals with this by provides that upon spouse’s death, his/her
separate property that would’ve been characterized as community property if the couple had been domiciled in a community property jurisdiction when the
property was acquired  is considered as quasi-community property and treated like community property for distribution purposes.
 For probate purposes, ½ QCP belongs to the surviving spouse at death with the other half subject to testamentary disposition of the decedent.
 To avoid the presumption of community property – primary wage earners can set up their accounts in a separate property manner and maintain it
 Moving from Community to Separate Property State usually doesn’t change things because community property stays community.
RIGHTS OF THE SURVIVING CHILDREN
Intentional Omission of a Child: No statutory protection against intentional disinheritance, except in LA. Unintentional disinheritance can invite a will contest.
Unintentional Omission of a Child: permitted heir statutes are designed to prevent unintentional disinheritance of a child, and usually apply only to children
born after execution of the will.
 UPC § 2-302 Omitted Children:
 (1) If T had no child when the will was executed, child receives share equal to what they would have received, unless will gave everything
to other parent.
 (2) If T had children living when the will was executed and will devised property to 1+ of the then-living children, an omitted child is
entitled to a share in the estate. See Gray v. Gray.
 Issues of Pretermitted Children arise when the will specifically names the kids, rather than use generic terms (like “issue”). See Anna Nicole Smith:
Will referred to son Daniel by name, but trust referred to kids generally, so daughter was a beneficiary under the trust and received money. Held: Will
validly disposed of estate by trust, and while the will referred to Dan by name, the trust referred to kids generally, so she was a beneficiary under the
trust and entitled to the money.
CHARITABLE TRUSTS
Nature of Charitable Purpose
 Charitable Trust: Must be created to serve a charitable purpose.
 Requirements: Must meet the same requirements as a private trust (intent to create a trust, funding, and possibly a writing), BUT
 (1) no requirement of ascertainable beneficiaries (unlike Clark, where trust for “friends” was invalid due to failure to name AB,
trust may be for “charity TBD”). Just has to be for charitable purpose.
 (2) may last forever, is exempt from RAP, may be modified under cy pres.
 (3) enforced by a combo of state attorney general and federal tax authorities, not beneficiaries
 Benefit of charitable trust: Rule Against Perpetuities; Ascertainable Beneficiaries; Deductible for income tax purposes up to a certain limit.
 Charitable Purpose: A purpose is charitable if it is for (1) relief of poverty, (2) advancement of education, (3) advancement of religion, (4) promotion
of health, (5) governmental or municipal purposes, or (6) any other purposes whose accomplishment is beneficial to the community at large.
 A trust is charitable if the settlor intended a recognized charitable purpose and the trust can reasonably be expected to further that purpose.
 Benevolent trusts (trusts that perform kind acts) are not charitable trusts unless they accomplish one of the specific charitable purposes
 Shenandoah Valley: Gift was paid directly to participants (so it was a gift); violated RAP (so it couldn’t be a private trust).
Cy Pres and Deviation: Charitable trusts are not subject to RAP, so they can last forever. Possible that the specific charitable purpose may become illegal,
impossible, or impractical…so courts developed the doctrine of cy pres. EXAM TIP: Cy Pres ONLY applies to CHARITABLE trusts for the exam – not
actually true. Equitable Deviation applies to both private and charitable trusts.
 Cy Pres (permits modification of the donor’s stated purpose): “As close as possible” policy: just modifies the terms of a trust to promote the settlor’s
general charitable purpose. In re Neher’s Will: when compliance with the specific trust direction (to build a hospital) became impracticable, court
applied cy pres and modified the gift to permit it to be used for another specific charitable community purpose – to erect and maintain an
administrative building for the city.
 Wasteful: where the amount of property held in trust exceeds what is needed for the particular charitable purpose to such an extent that
continued expenditure of all the funds for that purpose, although possible to do so, would be wasteful. See Buck Trust: Court refused to
apply cy pres to Marin County trust, reasoning it wasn’t wasteful (even though an enormous amount of money distributed to an already
wealthy town). Reasoning: philanthropic inefficiency isn’t enough to justify applying cy pres to put trust resources to more productive use.
 Today, modern statutory approaches facilitate application in inefficiency situations (UTC and Restatement of Trusts). Courts an
broaden the purpose of a trust – can take surplus funds and use it for reasonably similar purposes.
 Doctrine of Equitable Deviation; Administrative Deviation (permits modification of the administrative terms of the trust if strict compliance would
defeat or impair the purposes due to changed circumstances). Barnes Foundation: Court permitted trustees to change certain conditions of the
Foundation to ensure/give the gallery a fighting chance to be successful.
Enforcement of Charitable Trusts: Restatement (Second) of Trusts: suit cannot be maintained by persons who have no special interest or by settlor or his heirs,
personal representative, or next of kin. Settlor Standing: Prohibition on donor having standing to sue the trust has eroded substantially. Majority of states now
allow settlor of charitable trust to enforce trust.
 Smithers: Donor had standing to sue (under the reasoning that the donor of the gift is more likely than the AG to be vigilant). Other states by statute.
 UTC: settlor may maintain a proceeding to enforce the trust, Restatement (Third) of Trusts: same as above; special interest too,
 Robertson: Princeton didn’t pose alternatives or say we can open it to the entire Wilson school, so family sued because Princeton wasn’t fulfilling
donor’s goals for the trust (to develop individuals for international public service)
 Hershey: Role of trustees was circumvented by court and state legislature when Hershey Trust tried to sell the Trust’s interest in the company.
Legislature passed a law saying trusts must consider their special relationship with the community, notify AG, and employees of investment decisions
(targeted legislation).
 Federal Supervision: IRS can step in whenever…CT must comply w/ rules in federal tax code to be exempt from income tax and to qualify its donors
for a reduction
 Spend-Down Proposal: An idea to require charities to spend all their resources within a few years (Gates Foundation works this way: terminates 50
years after death of the survivor of its 3 principal patrons).
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