WILLS AND TRUSTS OUTLINE
FALL 2023 – BLACK
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Chapter 1: Introduction
LOL
Chapter 2: Intestate Succession
I.
Introduction
A. Intestacy statutes invariably (always) direct decedent’s property to close family members.
1. Presumed intent of Testator (T) – would want property to go to family.
2. Legislative preference for close family members.
3. Those are the people most likely to have contributed to accumulation of decedent’s property.
4. Most likely to be dependent on that property.
B. Importance of Intestate Succession/Fundamentals of Intestate Succession.
1. Heirs – People who would succeed to a person’s estate by intestate succession (the living do not have
heirs).
2. Intestate Succession – Determines who has standing to contest a will.
3. Surviving Spouse – Cannot disinherit a spouse.
4. Descendants take to the exclusion of “collaterals.”
i. Issue – Includes more remote lineal descendants including grandchildren and greatgrandchildren.
5. Distribution Among Collaterals
i. Descendants of the decedent’s parents take to the exclusion of other relatives.
6. Adopted Children – Same inheritance rights as biological family members to property from their
adopted relatives.
II.
Terminology
A. Personal property
1. Passed by descent to decedent's heirs or heirs at law.
B. Real property
1. Passed by distribution to decedent’s next of kin or distributees.
III. The Share of the Surviving Spouse.
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A. In General
1. Common Law States
i. Historically 
a. Spouse is not an heir and does not inherit real estate.
1. Spouse was entitled to dower (or curtesy rights in real estate – basically gave them a lifeestate).
b. Spouse was distributee of personal property.
ii. Modern Statutes
a. Do NOT distinguish between real and personal property.
b. Surviving spouse generally entitled to share in ALL of decedent’s property.
iii. Surviving spouse generally entitled to share even if decedent and spouse were separated at the
time of death.
2. Community Property States
i. Treat property acquired during the marriage (other than by gift or inheritance) as the product of
JOINT efforts of husband and wife.
a. Each has a HALF SHARE.
ii. Separate Property
a. Property acquired before marriage.
b. Property acquired by gift.
c. Property acquired by inheritance.
iii. Each spouse has a power of testamentary disposition ONLY OVER HIS OR HER HALF of
the community property.
a. Surviving Spouse has a guaranteed HALF interest in all community property, regardless of
whether a will was left.
1. No Will – remaining half of decedent's estate passes through intestate succession statute.
B. The Uniform Probate Code
1. Two Distinct Features regarding surviving spouse intestate share:
i. Spouse share is LARGER than is typical of other intestate succession statutes.
ii. Takes into account large number of blended families and adjusts the share of the surviving
spouse to reflect composition of those blended families.
2. SECTION 2-102. SHARE OF SPOUSE.
i. The intestate share of a decedent’s surviving spouse is:
2–102(1)
2–102(2)
no descendant or parent of the decedent survives the
No descendant of the decedent
decedent; or all of the decedent’s surviving
survives the decedent, but a
descendants are also descendants of the
parent of the decedent
surviving spouse and there is no other
survives the decedent;
descendant of the surviving spouse who survives  the first [$300,000], plus threethe decedent;
fourths of any balance of the
 the entire intestate estate
intestate estate
2–102(3)
all of the decedent’s surviving descendants are also
descendants of the surviving spouse and the
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2–102(4)
one or more of the decedent’s
surviving descendants are

surviving spouse has one or more surviving
descendants who are not descendants of the
decedent;
the first [$225,000], plus one-half of any balance of
the intestate estate

not descendants of the
surviving spouse.
the first [$150,000], plus onehalf of any balance of the
intestate estate
3. Divorce
i. UPC 2-802: A person whose marriage has been terminated by divorce or annulment does not
qualify as a surviving spouse.
ii. A decree of separation is NOT a divorce for purposes of 2-802.
IV.
Distribution Among Decedent’s Descendants.
A. First Principle – A first principle of intestate succession is that any living descendant of the decedent
cuts off the right of the descendant’s own children to inherit.
1. That is, if a decedent is survived by a child, that child’s children—decedent’s grandchildren—do not
take by intestate succession.
B. Issue
1. When decedent dies survived by descendants – those descendants take to the exclusion of collateral
relatives.
C. Strict Per Stirpes Distribution
1. Divides the intestate at the level of decedent’s children (whether or not any are surviving) and then
divides the share of each deceased child among that child’s descendants.
D. Modern Per Stirpes
1. Divides the estate at the closest level of descendants in which there is at least one person alive at
decedent’s death.
i. Then divides the share of each deceased descendant in that generation among the descendants of
the deceased descendant.
E. UPC – “Distribution by Representation” (Distribution per capita at each generation).
1. SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE.
i. (a) Any part of the intestate estate not passing to a decedent's surviving spouse under Section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to
the individuals who survive the decedent:
1. (1) To the decedent’s descendants by REPRESENTATION;
2. (2) If there is no surviving descendant 
 to the decedent’s parents equally if both survive, or
 to the surviving parent if only one survives;
3. (3) If there is no surviving descendant or parent 
 to the descendants of the decedent’s parents or
 either of them by REPRESENTATION;
4. (4) If there is no surviving descendant, parent, or descendant of a parent, but the decedent
is survived on both the paternal and maternal sides by one or more grandparents or
descendants of grandparents:
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A. (A) half to the decedent’s paternal grandparents equally if both survive, to the
surviving paternal grandparent if only one survives, or to the descendants of the
decedent’s paternal grandparents or either of them if both are deceased, the
descendants taking by representation; AND
B. (B) half to the decedent’s maternal grandparents equally if both survive, to the
surviving maternal grandparent if only one survives, or to the descendants of the
decedent’s maternal grandparents or either of them if both are deceased, the
descendants taking by representation;
5. (5) If there is no surviving descendant, parent, or descendant of a parent, but the decedent
is survived by one or more grandparents or descendants of grandparents on the paternal
but not the maternal side, or on the maternal but not the paternal side, to the decedent’s
relatives on the side with one or more surviving members in the manner described in
paragraph (4).
ii. (b) If there is no taker under subsection (a), but the decedent has:
1. (1) one deceased spouse who has one or more descendants who survive the decedent, the
estate or part thereof passes to that spouse’s descendants by representation; or
2. (2) more than one deceased spouse who has one or more descendants who survive the
decedent, an equal share of the estate or part thereof passes to each set of descendants by
representation
2. SECTION 2–105. NO TAKER
i. If there is no taker under the provisions of this Article, the intestate estate passes to the [state].
3. SECTION 2-106. REPRESENTATION.
i. (a) [DEFINITIONS.] In this section:
a. (1) “Deceased descendant,” “deceased parent,” or “deceased grandparent” means a
descendant, parent, or grandparent who either predeceased the decedent or is deemed to have
predeceased the decedent under Section 2-104.
b. (2) “Surviving descendant” means a descendant who neither predeceased the decedent nor is
deemed to have predeceased the decedent under Section 2-104.
ii. (b) [DECEDENT’S DESCENDANTS.]
If, under SECTION 2–103(1), a decedent’s intestate estate or a part thereof passes ‘by
representation’ to the decedent’s descendants, the estate or part thereof is divided into as
many equal shares as there are:
(i) surviving descendants in the generation nearest to the decedent which contains one
or more surviving descendants AND
(ii) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share.
The remaining shares, if any, are combined and then divided in the same manner among the
surviving descendants of the deceased descendants as if the surviving descendants who were
allocated a share and their surviving descendants had predeceased the decedent.
iii.
(c) [DESCENDANTS OF PARENTS OR GRANDPARENTS.]
If, under SECTION 2–103(3) OR (4), a decedent’s intestate estate or a part thereof passes ‘by
representation’ to the descendants of the decedent’s deceased parents or either of them or
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to the descendants of the decedent’s deceased paternal or maternal grandparents or either
of them, the estate or part thereof is divided into as many equal shares as there are:
(i) surviving descendants in the generation nearest the deceased parents or either of
them, or the deceased grandparents or either of them, that contains one or more
surviving descendants AND
(ii) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share.
The remaining shares, if any, are combined and then divided in the same manner among the
surviving descendants of the deceased descendants as if the surviving descendants who
were allocated a share and their surviving descendants had predeceased the decedent.
V.
Distribution Among Ancestors and Collateral Relatives
A. In General
1. If no spouse and no descendants – most intestate succession statutes award the entire estate to
decedent’s surviving parents, if there are any.
i. If decedent is survived by both parents, the parents typically share equally in the decedent’s
estate.
a. In a few states, decedent’s siblings share equally with decedent’s parents.
ii. If no parents – most statutes distribute to descendants of parents, excluding other collateral
relatives.
a. When all of decedent’s siblings survive decedent, the siblings share equally.
1. When some or all of decedent’s siblings have predeceased decedent, leaving issue, the
distribution questions that arise are similar to those that arise when decedent leaves
surviving descendants:
i.
The basic question is whether the initial division should be made
a. at the level closest to the decedent (here, siblings), or
b. at the level closest to the decedent in which there is a surviving descendant
(which, if all decedent's siblings predecease decedent, would be the level of
nieces and nephews, or, if nieces and nephews have died, grandnieces and
grandnephews).
ii. Strict Per Stirpes Jurisdictions  divide at the level of siblings.
iii. Modern Per Stirpes Jurisdictions or the UPC's "by representation"  make the
initial division at the closest level with surviving descendants.
iv.
Once the initial division is made, the differences between a modern per stirpes
approach and the UPC's "by representation" approach are the same as those that
arise with respect to decedent's descendants.
b. If no descendants of parents – most statutes distribute to grandparents or descendants of
grandparents. (Uncles and Aunts and their descendants).
1. Grandparents
i.
Some states mandate a division between maternal and paternal side of the
family.
ii. Some states treat all descendants of grandparents equally.
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a. States that mandate an equal division, however, permit the issue of one set of
grandparents to take the entire estate when there are no surviving issue of the
other set of grandparents.
2. Descendants of Grandparents
i.
Distribution of assets among descendants of grandparents who are of different
generations 
a. Many jurisdictions follow the same pattern that they use for distribution among
issue of parents; depending on the statute, distribution could follow a strict per
stirpes pattern, a modern per stirpes pattern, or the UPC's "by representation"
pattern.
b. Other jurisdictions, however, take a different approach, holding that surviving
relatives closer in kinship to the decedent take to the exclusion of descendants
of deceased relatives with that same degree of kinship to the decedent.
2. SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE (Reprinted above, at IV.E.1).
3. Table of Consanguinity
B. Laughing Heir Statutes and Escheat
1. Some intestate succession statutes provide that when the distance become sufficiently great, the
decedent's relatives should not share in the estate at all; instead, the estate "escheats" to the state.
2. Rests on Two Grounds:
i. The more distant the survivors, the more difficult (and costly) it becomes to determine who the
closest survivors are, and to locate them.
ii. As survivors become more distant, it becomes less likely there was a close connection between
decedent and the survivors.
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3. Statutory limitations on inheritance rights by distant relatives are often referred to as laughing heir
provisions.
C. The UPC
1. In 2019, the Uniform Probate Code's drafters revised the statute's treatment of intestate succession by
collaterals. The pre-2019 version of the UPC has been adopted in a number of states. By contrast, the
2019 revision, which is far more complex, has not, as of this writing, been adopted in any state.
i. The Pre-2019 Code
a. UPC § 2-103  provides that when a decedent is survived by parents, but by no spouse
or issue, decedent's estate should be distributed to decedent's parents equally if both survive,
and to the surviving parent if only one survives (like most other intestate succession statutes).
1. Indeed, even if decedent is survived by a spouse but no issue, parents will share in a large
intestate estate; UPC § 2-102(2) combines with UPC § 2-103(a)(2) to give the parents
one-quarter of the amount by which the estate exceeds $300,000).
b. When decedent is not survived by parents, UPC § 2-103(a)(3) provides for distribution
to descendants of parents—brothers, sisters, and their issue.
1. As with distribution to lineal descendants, the UPC provides that distribution to
descendants of parents should be "by representation" as that term is defined in UPC §
2-106. In other words, distribution should be per capita at each generation.
c. When decedent is not survived by descendants of parents, UPC § 2-103(a)(4) provides
for distribution to descendants of grandparents.
1. If decedent is survived both by descendants of maternal grandparents and by descendants
of paternal grandparents  decedent's estate is first cut in half, with one-half allocated
to each set of descendants. Then, each half is distributed to descendants "by
representation."
2. If decedent is survived only by descendants of one set of grandparents, then the entire
estate passes to that half.
d. The UPC also provides, as of a 2008 revision, that when decedent is not survived by any
descendants of grandparents, decedent's stepchildren and their descendants will take
decedent's estate. See UPC § 2-103(b). In the absence of step-descendants, UPC § 2-105
provides for escheat to the state. More remote relatives do not inherit.
VI.
Defining the Modern Family: Half-bloods, Adoptees, and Non-Marital Children
A. Halfbloods
1. When people share only one parent – halfbloods.
2. UPC § 2-107
i. Treat halfbloods equally with wholebloods.
a. Advantage of simplicity
b. Reflects the realities of many halfblood relationships.
3. States that treat halfbloods differently:
i. Provide that wholeblood relatives take to the exclusion of halfblood relatives of the same degree.
B. Adoption
1. Adopted children inherit from their adoptive family.
2. Adopted children are precluded from inheriting from biological family.
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3. Step-Parent Adoptions:
i. UPC § 2-119 – Adoption by the spouse of either natural parent has no effect on the relationship
between the child and that natural parent.
a. Example: Child adopted by mother's second husband after death of child's father
1. § 2-119 makes the child an heir of his or her mother, his or her adoptive father, and the
parents (and potentially, the siblings and collateral relatives) of his or her natural father.
C. Inheritance from Stepparents and Other Caretakers
1. Generally
i. Child not entitled to take from caretaker when the relationship between the child and caretaker
was never legally formalized.
2. Exceptions:
i. Stepparent – Failure to adopt generates an inference that the stepparent did not consider the
child their own.
a. If absent biological parent is alive, adoption by stepparent requires consent of the
biological parent or termination of parental rights.
1. In this situation, failure of stepparent to adopt sheds no light on the closeness of the
relationship between stepparent and child.
i.
California permits inheritance by intestate succession from a stepparent (or a
foster parent) when two conditions are met:
a. (1) the relationship between the parties must have begun during the child's
minority and continued through the joint lifetimes of the parties, AND
b. (2) clear and convincing evidence establishes that the stepparent or foster parent
would have adopted but for a legal barrier.
ii. In 2008, the UPC was amended to give stepchildren inheritance rights in rare
circumstances – if the deceased is not survived by a spouse, descendants, parents,
siblings, descendants of siblings, grandparents or descendants of grandparents, but
decedent's predeceased spouse (or spouses) have surviving children, those children
will take to avoid escheat.
iii. In most states, however, the stepparent would have to write a will to enable the
stepchild to inherit.
ii. Caretaker – A child may be raised by a caretaker who has no formal legal relationship to
either the child or its natural parents.
a. The Equitable Adoption Doctrine:
1. Some states have developed a doctrine of "equitable adoption" to permit the child to
inherit from the caretaker by intestate succession.
2. The equitable adoption doctrine rests on the fiction that when a caretaker takes a child
into his or her home, the caretaker impliedly agrees with the child's natural parents
that he or she will adopt the child.
i.
If the parties rely on this agreement, the child will be entitled to whatever benefits
flow from status as the caretaker's child, even if the caretaker never performs the
implied "agreement." Among those benefits is inheritance by intestate succession.
b. Equitable adoption doctrine is NOT reciprocal  In the absence of a formal adoption,
the caretaker is NOT entitled to inherit from the child.
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iii.
"De Facto" Parents
a. A few states allow persons who act as parents to seek adjudication as "de facto" parents
without seeking a formal adoption.
1. The 2019 amendments to the UPC would permit a child to inherit from an adjudicated
"de facto" parent without losing the right to inherit from other parents. As a result, in an
unusual case, a child might be able to inherit from more than two parents.
D. Non-Marital Children and Proof of Paternity
1. Common Law
i. Non-marital children (bastards) NOT entitled to inherit from or through either parent.
ii. Intestate Succession statutes – permitted non-marital children to inherit from or through their
mothers.
a. Most states placed restrictions on the right of non-marital children to inherit from or through
their fathers.
2. UPC §2-117. NO DISTINCTION BASED ON MARITAL STATUS
3. Except as otherwise provided in SECTIONS 2–114 [termination of parental rights], 2–119 [adoption],
2–120 [assisted reproduction], or 2–121 [assisted reproduction] 
i. a parent-child relationship exists between a child and the child’s genetic parents, regardless
of the parents’ marital status.
E. Modern Reproductive Technology
1. Uniform Parentage Act
i. Provides that a posthumously conceived child is an heir of the deceased parent only if that parent
consented in writing to the use of his or her gametes after death.
2. UPC
i. 2-120: When the intended mother gives birth to a child using assisted reproductive technology,
a sperm donor is presumed to have no parent/child relationship with the resultant child unless
the donor is a husband who provides sperm to his wife, or someone who consented to assisted
reproduction by the birth mother with the intent to be treated as the other parent of the child.
VII. Simultaneous Death
A. Simultaneous Death Statutes
1. Provide that when an intestate decedent dies simultaneously with one of the decedent’s heirs, the
decedent should be treated as having survived the prospective heir.
i. Example: If husband and wife die in a common accident, and both are intestate and childless at
the time of the accident, the husband's estate will be distributed as if the husband survived the
wife (husband's blood relatives share his estate), while the wife's estate will be distributed as
if the wife survived the husband (wife's blood relatives take her estate).
B. UPC § 2-104. REQUIREMENT OF SURVIVAL BY 120 HOURS; INDIVIDUAL IN GESTATION
1. Requires a prospective heir to survive decedent by 120 hours to qualify for distribution of an intestate
estate.
i. One in gestation at decedent’s death is presumed to survive decedent if she lives for 120 hours
after birth.
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2. Designed to reduce litigation over the precise order of death, and to give effect to intestate decedent's
presumed wishes in a broader range of cases.
3. Statute is inapplicable if it would cause decedent's estate to escheat.
VIII. Disclaimer
A. Common Law
1. Heir could not “Disclaim” or “Renounce” inheritance.
B. Modern Law
1. Uniformly permit disclaimer by an intestate heir.
2. Heir may want to disclaim for three reasons:
i. Heir wanted nothing to do with decedent's property.
ii. Direct the inherited assets away from creditors.
iii. Minimize tax burdens.
3. A beneficiary of a will or an intestate estate has the right to disclaim part or all of any inheritance.
UPC §§ 2-1105, 2-1106.
i. Any disclaimed gift is deemed revoked and treated as if the recipient predeceased the testator.
ii. Beneficiaries' creditors cannot reach a disclaimed devise. (Treated as though it relates back
to the moment of the testator's death, such that the beneficiary never owned any interest that
creditors could reach.)
iii. Disclaimer does NOT prevent Federal Government from reaching disclaimed property to
satisfy a federal tax lien against the disclaimant. Drye v. United States
iv.
Disclaimer does effect eligibility for Medicaid.
4. Disclaimer is valid even if exercised after the death of the testator or intestate decedent.
C. UPC § 2-1106(b)(3). DISCLAIMER OF INTEREST IN PROPERTY
1. Ensures that heir cannot use disclaimer to pervert UPC’s “by representation” provisions.
i. Only the disclaimed interest—not the decedent's entire estate—will pass as if the disclaimant
predeceased the decedent.
ii. Ensures that if disclaimant left descendants, only those descendants will take the disclaimed
interest.
2. UPC § 2-1106(b)(3)(C):
i. If by law or under the instrument, the descendants of the disclaimant would share in the
disclaimed interest by any method of representation had the disclaimant died before the time of
distribution, the disclaimed interest passes only to the descendants of the disclaimant who
survive to the time of distribution.
ii. UPC § 2-1106(a)(2). Time of Distribution – the time when a disclaimed interest would have
taken effect in possession or enjoyment (the time of decedent’s death).
IX.
Disqualification from Inheritance
A. Slayer Statutes – Three Policies
1. Slayer should not profit from his own wrong.
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2. Deterrence: permitting the slayer to profit creates an unfortunate incentive to engage in murderous
behavior
3. Intention: It is a rare decedent who would want his killer to share in his estate.
B. UPC § 2-803: EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, TRUSTS, JOINT ASSETS, LIFE
INSURANCE, AND BENEFICIARY DESIGNATIONS.
1. Forfeiture of an intestate share when an heir "feloniously and intentionally kills the decedent." –
Killer treated as if he disclaimed interest in the estate.
2. UPC § 2-803(g) [FELONIOUS AND INTENTIONAL KILLING; HOW DETERMINED.]
i. A judgment of conviction establishing "criminal accountability for the felonious and intentional
killing of the decedent conclusively establishes the convicted individual as the decedent's
killer."
ii. Absence of a Conviction
a. Probate court must determine, by preponderance of the evidence, whether the heir "would
be found criminally accountable" for a felonious and intentional killing.
X.
Advancements
A. Common Law
1. IF intestate decedent made a substantial gift to an heir during decedent’s lifetime – presumption that
the gift was an advancement of heir’s inheritance, and that the gift should be charged against the
heir’s intestate share.
i. Rebuttable Presumption – burden of proof on the heir to prove D did not intend an
advancement.
2. All of the money distributed to heirs as advancements should be added to decedent’s net estate, and
the total amount (sometimes called the “hotchpot”) should then be divided among the heirs in
accordance with the provisions of the intestate succession statute. Amounts already received should
be charged against the shares of the heirs who received those amounts.
3. BOOK EXAMPLES 8 AND 9:
i. Decedent was survived by her three children, A, B, and C. Decedent advanced $30,000 to A
during decedent’s lifetime, and memorialized the transfer as an advancement against A’s
intestate share. Three years later, decedent died with an estate of $90,000. How should
decedent’s estate be distributed?
a. SOLUTION: The $30,000 received by A should be added to the $90,000 for a total of
$120,000. Each of the three children is then entitled to one-third of the total, or $40,000
apiece. Because A has 171already received $30,000, A is entitled to $10,000 more. B and C
each receive $40,000.
ii. Same facts as above, except the advancement to A was $50,000. How should decedent’s estate
be distributed?
a. SOLUTION: When we add A’s $50,000 to the $90,000 in the estate, the total is $140,000.
Each child’s share would be $46,667. Since A already received more than that, A would not
receive anything from the estate, but would not have to give anything back. The $90,000 in
the estate would be divided evenly between B and C.
B. UPC § 2-109. ADVANCEMENTS.
1. Gift is treated as an advancement only if:
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i.
ii.
Either the decedent or heir acknowledges in writing that the gift is an advancement; or
The decedent or the heir indicates in writing that the gift is to be taken into account in
computing division and distribution of decedent's intestate estate.
2. If a lifetime gift is treated as an advancement – the value of the property distributed to heirs as
advancements should be added to the value of decedent's estate.
i. Total is often referred to as the "hotchpot"
a. Hotchpot then divided among heirs in accordance with the provisions of the intestate
succession statute.
Chapter 3: Protection of the Family
I.
Introduction and Rationale
A. Decedents are NOT free to disinherit a spouse.
1. Historically – Protects wives against disinheritance by their husbands.
B. Partnership Theory of Marriage
1. Spouses contribute to the well-being of a family in different ways (income and family responsibilities).
2. Divorce
i.
Partnership Theory assures each spouse receives a share of marital assets.
3. Death of a Spouse with Significant Assets:
i. Surviving Spouse should get a share of those assets.
ii. Community Property States
a. Each spouse has a 1/2 interest in community property.
b. Neither can transfer community property without consent of the other.
c. Each spouse may devise their half, but the surviving spouse's half remains with surviving
spouse.
d. FULLY EQUAL PARTNERSHIP - Provides maximum protection to the surviving spouse.
iii. Common Law States
a. Property is individually owned unless husband and wife take title as tenants by the entirety
or as joint tenants.
b. Historically –
1. Principal protection for spouse was dower and curtesy.
i.
Dower - Widow has a life interest in 1/3 of deceased husband's lands.
ii. Curtesy - Husband has a life interest in all of wife's lands, but only if children were
born to the marriage.
2. Provided no protection with respect to personal property.
i.
Most states enacted "elective share" statutes which permitted the surviving
spouse to elect to take a statutory percentage (generally 1/3) of decedent's
spouse's probate estate, even if the decedent spouse tried to limit the surviving
spouse to a smaller share.
ii. Elective share statutes apply to both personal and real property.
II.
Elective Share Statutes: Typical Problem and Solutions
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A. Some people will seek to pass property outside of the probate process to avoid spouse taking an elective
share.
B. Illusory Transfer Doctrine
1. Principle: If the decedent created a trust over which he exercised too much control during his lifetime,
the trust assets would be considered part of the probate estate for elective share purposes
2. Standards differ from state to state.
III. The Uniform Probate Code’s Elective Share Provisions
A. Overview
1. Marriage of at least 15 Years.
i. All property of both spouses is "Marital Property" – A pot of resources owned equally by the
two spouses.
ii. Surviving spouse entitled to at least half of what is in the pot at death.
iii. If various inter vivos and testamentary transfers leave spouse with less than half, surviving
spouse has a right to elect to obtain a full 50% of the joint assets.
a. If surviving spouse holds bulk of couple's assets in his or her own name, the surviving spouse
will not generally have a right to elect, even if the decedent spouse left nothing to the
survivor.
b. If surviving spouse had no assets in their name, surviving spouse has a right to elect unless
decedent left survivor with at least 50% of the joint assets.
2. Marriages shorter than 15 Years
i. "Marital Property" - Smaller.
a. Theory: Marriage has not yet generated a full and equal financial partnership, so each spouse
should be able to shield more of his or her own assets.
ii. Gradually increases from 3% of marriage < 1 year to 100% in a 15-year marriage.
B. The Statutory Scheme
1. Determining whether surviving spouse has right to elect steps:
i. (1) Compute the value of the decedent spouse's "augmented estate."
a. Augmented Estate - The pot of money the spouses have a right to share.
ii. (2) Determine how much of the augmented estate is "marital property."
iii. Compute the surviving spouse's elective share.
a. 1/2 of the marital property portion of the augmented estate
iv.
(3) Determine whether the dispositions already made for the surviving spouse, taken in
combination with the marital property portion of the spouse's own assets, are sufficient to
eliminate any right to elect; and
v. (5) If the dispositions made for the surviving spouse are inadequate, determine how other
dispositions abate to satisfy that spouse's elective share.
2. UPC Four (4) Broad Categories of Property in Augmented Estate:
i. 2-204: Decedent's net probate estate.
ii. 2-205: Decedent's lifetime transfers to people other than surviving spouse.
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iii.
iv.
2-206: Decedent's lifetime transfers to surviving spouse.
2-207: Surviving spouse's own property.
3. UPC § 2-203(b) – The value of the marital-property portion of the augmented estate consists of the
sum of the values of the four components of the augmented estate as determined under subsection (a)
multiplied by the following percentage:
If the decedent and the spouse were
The percentage is:
married to each other:
Less than 1 year
3%
1 year but less than 2 years
6%
2 years but less than 3 years
12%
3 years but less than 4 years
18%
4 years but less than 5 years
24%
5 years but less than 6 years
30%
6 years but less than 7 years
36%
7 years but less than 8 years
42%
8 years but less than 9 years
48%
9 years but less than 10 years
54%
10 years but less than 11 years
60%
11 years but less than 12 years
68%
12 years but less than 13 years
76%
13 years but less than 14 years
84%
13 years but less than 14 years
84%
14 years but less than 15 years
92%
15 years or more
100%
C. STEPS UNDER THE UPC
1. Step #1 – calculate the value of decedent spouse’s augmented estate.
[this is: sum of decedent AND surviving spouse’s property + non-probate transfers]
i. § 2-203(a) – four categories of assets:
a. §2-204 – decedent’s probate estate
b. §2-205
1. (1) decedent’s non-probate transfers to people other than surviving spouse
i.
(i) property over which decedent alone has presently exercisable general power of
appointment
*  includes revocable living trusts AND any unfettered discretion to invade principal
ii. (ii) decedent’s fractional interest in property held in joint tenancy w/ right of
survival, to the extent D’s interest doesn’t pass to the surviving spouse
iii. (iii) decedent’s interest in property w/ POD designation OR right of survivorship
iv.
(iv) insurance proceeds, to the extent they don’t go to the surviving spouse
2. (2) lifetime transfers by the decedent DURING MARRIAGE
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(i) any irrevocable transfer where decedent retained an income interest  include
D’s fractional interest
ii. (ii) any transfer created by D where D has general power of appointment,
EITHER presently exercisable OR testamentary.
*  if it’s a specific power, DON’T include it.
3. (3) property gifted during marriage AND in the 2 year period before D’s death, to the
extent it passed other than through decedent’s estate or to the surviving spouse
c. § 2-206 – decedent’s non-probate transfers to the surviving spouse.
1. (i) the decedent’s fractional interest in property held as a joint tenant w/ right of
survivorship, that passes to surviving spouse as joint tenant
2. (ii) decedent’s interest in POD accounts that passes to surviving spouse
3. (iii) all other property that would have been included in the augmented estate under 2205(1) or (2) had it passed to/for the benefit of a person other than decedent’s spouse or
estate
i.
presently exercisable general POA exercised in favor of spouse.
ii. D’s fractional interest in property held in joint tenancy w/ right of survivorship,
where the spouse is the survivor.
iii. POD or TOD accounts going to the spouse.
iv.
insurance proceeds going to the spouse.
v.
irrevocable transfers where D retained a life interest, where the remainder goes to
the spouse.
vi.
any transfer where D created a POA over property, where spouse is the donee.
vii.
gifts during marriage & the 2 year period before death to the spouse
d. § 2-207 – Surviving spouse’s OWN property AND non-probate transfers to others.
i.
2. Step #2 – compute the marital-property portion of the augmented estate. UPC § 2–203(b).
i. this is: the pot of money the spouses are required to share, based on marriage length.
ii. augmented estate x statutory percentage % see pg. 182
3. Step #3 – compute the surviving spouse’s elective share amount. UPC § 2–202(a).
i. this is: 50% of the marital-property portion of the augmented estate.
4. Step #4 – determine whether the dispositions already made for the surviving spouse, together w/
a percentage of the spouse’s own assets (based on the length of the marriage), are sufficient to
satisfy the elective share.
if not  decedent’s probate & non-probate transfers to others abate proportionally
i. (1) §2-209(a)(1) – first apply the amounts spouse is already entitled to receive:
a. under intestacy distribution, if any
b. under the will (has to disclaim interest in the trust if you want elective share), if any
c. from non-probate transfers to surviving spouse
d. § 2-209(a)(2) – add the marital property portion [whatever percentage that is determined in
step 2] of surviving spouse’s assets and surviving spouse’s non-probate transfers.
ii. (2) if the combined value is more than the elective share amount  STOP.
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(3) if the combined value is less than the elective share amount  surviving spouse is entitled
to a pro rata contribution from other beneficiaries.
D. Composition of the Augmented Estate:
1. The Net Probate Estate
i. § 2-204: Any assets that would pass by decedent's will, or by intestate succession, are part of the
net probate estate.
a. Creditor claims, funeral and administrative expenses, and homestead allowance, family
allowance, and exempt property are subtracted from probate estate before reaching value
of net probate estate.
2. Decedent's Non-Probate Transfers to Others
i. Property Owned in Substance by Decedent at the Time of Death
a. Four Types of Property:
1. Property over which decedent held a general power of appointment (includes property
held by decedent in a revocable living trust)
2. Decedent's interest in property held in joint tenancy with right of survivorship;
3. Decedent's interest in accounts held in POD, TOD, or co-ownership registration with
right of survivorship; and
4. Proceeds of life insurance on the death of the decedent, to the extent that decedent owned
the life insurance policy before his death.
ii. Transfers over Which Decedent Reserves Powers or Interests
a. UPC § 2-205(2) – Deals with property over which decedent has relinquished some control,
while retaining significant rights of enjoyment.
1. If decedent has reserved the "right to possession or enjoyment of, or to the income from"
property until the moment of his death, then the property - and not just the value of the
right to income – will be included within the augmented estate.
i.
Includes real property and trusts in which decedent has retained a life interest (or
interest in income for life)
iii. Outright Transfers During Two Years Before Death
a. Generally - if decedent makes outright transfers of property to persons other than the
surviving spouse, the value of those transfers is not included within the augmented estate.
(UPC 2-205)
b. UPC § 2-205(3) – Different treatment for outright gifts made within two years of decedent's
death.
At this time, outright gifts begin to look more like testamentary substitutes, perhaps designed to
reduce the surviving spouse's share, than like gifts made out of ordinary love and affection.
1. Three Categories of Property in which Decedent has Disposed of ALL Interest and
Control
i.
§ 2-205(3)(A) – Property that passed, within two years of decedent's death, as a
result of the termination of decedent's right, interest, or power in property that
would have been included in the augmented estate had decedent retained an interest
until death.
3. Nonprobate Transfers to the Surviving Spouse
i. UPC § 2-207
a. Includes non-probate transfers made to the surviving spouse.
iii.
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1. If decedent held property in a POD account with decedent's spouse as a beneficiary, the
property would be included in the augmented estate.
2. If decedent held property as a joint tenant or tenant by the entirety with decedent's spouse,
the decedent's share of the property would be included in the augmented estate.
4. Surviving Spouse's Property (and Transfers to Others)
i. Surviving spouse's own assets are included within the estate.
ii. Purposes of this is to avoid enabling the surviving spouse to increase the elective share by
divesting herself of formal legal title to property..
a. EX: If the surviving spouse held a general, presently exercisable power of appointment, the
appointive property would be included as the surviving spouse's property.
b. If the surviving spouse had created an irrevocable trust, reserving a right to income for life,
the trust's property would be treated as the surviving spouse's property, and would be
included in the decedent spouse's augmented estate.
5. Determining Whether the Surviving Spouse has a Right to Elect.
i. To determine whether the surviving spouse can elect anything beyond what the decedent has
provided, one must determine whether the decedent spouse has provided the survivor with
the elective share amount.
a. § 2-209. The statute provides that amounts included in the augmented estate that pass to the
surviving spouse are applied first to make up the surviving spouse's elective share. Consider
first how the statute applies to a marriage that has lasted at least 15 years. The statute
requires that we add three quantities:
1. the value of property passing to the spouse through the net probate estate;
2. the value of non-probate transfers to the spouse included under 2-206; and
3. the value of the marital property portion of the surviving spouse's own property.
b. Those three values are applied first to satisfy the surviving spouse's elective share.
1. If the sum of those three values exceeds the surviving spouse's elective share, the
surviving spouse may not upset any of the decedent spouse's testamentary scheme; the
surviving spouse has been provided for adequately.
2. Only if the sum of those three values is smaller than the elective share may the surviving
spouse obtain more than the spouse would receive if the decedent spouse's dispositions
remained intact.
3. When the sum of the three quantities is too small—cases where the decedent spouse has
not adequately provided for the survivor—UPC 2-209(c) provides that the surviving
spouse can obtain the unsatisfied balance of the elective share from two sources: amounts
included in the decedent's probate estate, and amounts included in those of decedent's
non-probate transfers to others that come within sections 2-205(1), (2) and (3)(B).
i.
Those transfers then abate proportionately to satisfy the elective share.
IV.
Waiver of elective share rights.
A. Important with very wealthy clients or second marriages w/children or when one spouse comes into
marriage with a great deal of money.
B. UPC 2-213. WAIVER OF RIGHT TO ELECT AND OF OTHER RIGHTS
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1. (a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead
allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially,
before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse;
2. (b) Surviving spouse’s waiver is not enforceable IF surviving spouse proves that:
i. (1) He did not execute the waiver voluntarily; OR
ii. (2) The waiver was unconscionable when it was executed and, three additional elements:
a. (i) the surviving spouse did not receive fair and reasonable disclosure of assets;
b. (ii) surviving spouse did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the decedent beyond the disclosure
provided; AND
c. (iii) surviving spouse did not have, or reasonably could not have had, adequate
knowledge of the property or financial obligations of the decedent.
V.
Other Protections For the Surviving Spouse
A. Homestead allowance, exempt property and family allowance.
1. State law typically places some property beyond the reach of creditors.
i. Many states also provide a limited exemption for the family homestead:
a. To preserve the debtor's basic human dignity
b. To relieve taxpayers of the obligation to provide for insolvent debtors; and
c. To promote efficiency: items of personal property are likely to be worth more to the debtor
than to anyone else, and exempting them from creditor execution assures that they stay with
the person who values them most.
2. Surviving spouses, and often minor children, remain entitled to a homestead exemption, and also
remain entitled to keep some personal property away from decedent's creditors.
3. UPC 2-402 HOMESTEAD ALLOWANCE (214)
i. A decedent’s surviving spouse is entitled to a homestead allowance of [$22,500]. If there is no
surviving spouse, each minor child and each dependent child of the decedent is entitled to a
homestead allowance amounting to [$22,500] divided by the number of minor and dependent
children of the decedent. The homestead allowance is exempt from and has priority over all
claims against the estate. Homestead allowance is in addition to any share passing to the
surviving spouse or minor or dependent child by the will of the decedent, unless otherwise
provided, by intestate succession, or by way of elective share.
4. UPC 2-403 EXEMPT PROPERTY (214).
i. In addition to the homestead allowance, the decedent’s surviving spouse is entitled from the
estate to a value, not exceeding $15,000 in excess of any security interests therein, in household
furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving
spouse, the decedent’s children are entitled jointly to the same value. If encumbered chattels are
selected and the value in excess of security interests, plus that of other exempt property, is less
than $15,000, or if there is not $15,000 worth of exempt property in the estate, the spouse or
children are entitled to other assets of the estate, if any, to the extent necessary to make up the
$15,000 value. Rights to exempt property and assets needed to make up a deficiency of exempt
property have priority over all claims against the estate, but the right to any assets to make up a
deficiency of exempt property abates as necessary to permit earlier payment of homestead
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allowance and family allowance. These rights are in addition to any benefit or share passing to
the surviving spouse or children by the decedent’s will, unless otherwise provided, by intestate
succession, or by way of elective share.
5. UPC allowance applies even if decedent did not own a home; it gives the surviving spouse (or a
minor child, if there is no surviving spouse) a flat sum of money, exempt from all creditor claims.
i. The spouse is entitled to the homestead allowance, and if there is no spouse, minor or dependent
children may take the allowance.
a. Spouse also is entitled to the exempt property, but if there is no spouse, all of the decedent's
children, jointly, are entitled to the exempt property.
ii. Homestead allowance and exempt property are in addition to the amounts the spouse and
children take under decedent's will, and in addition to any amounts the spouse would take by
elective share.
6. UPC 2-404 FAMILY ALLOWANCE (215).
i. (a) In addition to the right to homestead allowance and exempt property, the decedent’s surviving
spouse and minor children whom the decedent was obligation to support and children who were
in fact being supported by the decedent are entitled to reasonable allowance in money out of the
estate for their maintenance during the period of administration, which allowance may not
continue for longer than one year if the estate is inadequate to discharge allowed claims. It is
payable to the surviving spouse, if living, for the use of the surviving spouse and minor and
dependent children; otherwise to the children, or persons having their care and custody. If a
minor child or dependent child is not living with the surviving spouse, the allowance may be
made partially to the child or his [or her] guardian or other person having the child’s care and
custody, and partially to the spouse, as their needs may appear. The family allowance is exempt
from and has priority over all claims except the homestead allowance.
a. [Family allowance is paid to those who the decedent was obligated to support and was in fact
supporting]
b. [Cannot last more than a year if the estate is unable to discharge all of its claims.]
c. [Surviving spouse receives homestead allowance – does not]
B. Protection against inadvertent disinheritance: the problem of the pre-marital will.
1. Legislation embodies three different approaches to this problem.
i. Few states, legislatures have assumed that testator who fail to change their premarital wills do
so inadvertently.
a. Statutes in those states provide that marriage automatically revokes a pre-marital will.
1. As a result, decedent dies intestate, and the surviving spouse takes his intestate share.
2. UPC takes more complex approach to the issue:
i. First, the code assumes that a pre-marital will does reflect the testator's intent to the extent that
it benefits the testator's issue form previous relationships.
a. Code presumes that the testator's intent to benefit others was negated when she remarried
(this presumption is rebuttable).
ii. UPC 2-301 ENTITLEMENT OF SPOUSE; PREMARITAL WILL (PG. 219).
a. When decedent married surviving spouse after execution of the decedent’s will, the will
remains effective w/r/to portion of the estate devised to children born to decedent before the
marriage and to descendants of such children;
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b. As to remainder of estate, 2-301 entitles surviving spouse to receive value that spouse would
have received if decedent had died intestate with respect to that portion of the estate.
c. Surviving spouse not entitled to that portion if it appears from will that will was:
1. (1) made in contemplation of marriage, OR
2. (2) if the will expresses an intention that will be effective notwithstanding the marriage,
OR
3. (3) if testator provided by spouse by transfer outside the will and evidence establishes
that transfer be in lieu of a testamentary provision.
d. Note: 2-301 does not resolve the Prestie problem.
VI.
The Community Property System
A. Community property system gives each spouse a half share in all property acquired during marriage (other
than by gift or inheritance), community property states have no elective share statutes.
1. Property acquired before marriage or by gift or inheritance is the separate property of the respective
spouse, and the surviving spouse has no rights in separate property.
2. If decedent's estate consists entirely of separate property, the surviving spouse is dependent on
whatever the decedent wants to give him or her.
i. If the money came in before the marriage or by gift or inheritance the surviving spouse gets
nothing, there is no right to separate property.
B. Normally a strong presumption (and judicial attitude) in favor of classifying property as community
property.
VII. Protection of Children: Pretermitted Child Statutes
A. Most states protect children against unintentional disinheritance.
1. Pretermitted child statutes fall into two categories:
i. Those which protect only children born after execution of testator's will, and
ii. Those which protect all children who have been unintentionally disinherited.
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Chapter 4: Wills
I.
Will Execution.
A. THREE FORMS OF VALID WILLS
1. A witnessed, ATTESTED will:
i. In writing;
ii. Signed by the testator (Personally or by another individual in T’s conscious presence and at her
direction); and
iii. Signed by at least two people within a reasonable time after witnessing testator’s signature.
2. A notarized, attested will:
i. In writing;
ii. Signed by testator (or another in T’s conscious presence and direction);
iii. Testator acknowledges the will as her own before a notary public.
3. A non-attested will (Holographic Will)
i. In writing;
ii. Testator must have handwritten the material portions of the will; and
iii. The testator must have personally signed the will. UPC § 2-502.
B. The Purpose of Formalities
1. Formality Statute Objectives
i. Protective Function – Attempt to protect testator from fraud and overreaching by greedy
relatives and acquaintances.
ii. Ritual Function – Requiring a testator to participate in a ceremonial occasion impresses upon
the testator the finality and importance of the act she is performing.
iii. Evidentiary Function – Formal document serves as conclusive evidence of the testator’s wishes,
and the witness requirement ensures that others will be available to testify if the will’s authenticity
is in doubt.
iv.
Channeling Function – Two Purposes:
a. Simplifies the probate process by ensuring wills have a similar form and structure.
b. Mysterious nature of formalities channels testators towards using lawyer.
2. Arguments for Simplification
i. Formalities should be simplifies to reduce the risk that careless mistakes will doom a will.
ii. If purpose of formalities is to effectuate T’s intent, then rejecting wills that manifest intent because
they fail to comply strictly with formalities statutes frustrates the statute’s principal objective.
3. UPC § 2-502
i. Notable for its simplicity.
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ii.
Requires only that testator sign a written document and that at least two other individuals sign
the document within a reasonable time after witnessing the testator’s execution or
acknowledgement of the will.
a. Witnesses DO NOT have to be present when testator executes the will.
b. Witnesses DO NOT have to sign in the testator’s presence.
iii. Permits a Testator to dispense with witness requirement if testator acknowledges signature
before a notary.
4. UPC § 2-503 – Harmless Error just requires INTENT.
i. Allows a court to probate a will that fails to comply with 2-502 if the proponent (person offering
the document for probate) can prove, by clear and convincing evidence, that the testator
intended that the document function as a will.
ii. DISPENSING POWER – Enables courts to “dispense” with formalities requirements. Adopted
by many states.
5. States that have NOT adopted 2-503:
i. Substantial Compliance Jurisdiction
ii. Willing to excuse “harmless” error in will execution providing that:
a. The document offered for probate substantially complies with will formalities, AND
b. The proponent can establish (by clear and conniving evidence) that the testator intended the
document to function as her will.
iii. Evidence suggests courts are more inclined to insist on strict compliance with formalities when
will deviate from established social norms by devising Testator’s property to individuals other
than family members who appear “deserving.”
iv.
When wills DO conform to social norms – courts more likely to validate them.
C. The Execution Ceremony – Procedure
1. The Testator’s Signature:
i. Testator must sign will to indicate the will is a final expression of her testamentary wishes.
ii. ANY MARK
a. Almost any mark on the paper, including a computer-generated mark, can function as a
signature – provided that Testator made the mark with the intent that it serves as a
signature.
iii. Proxy
a. If Testator needs assistance, someone may help T sign name.
b. Most execution statutes allow the testator to sign by proxy if the proxy signs at the request
and direction of the testator in the testator’s presence.
c. NOTE: A signature that is assisted/proxy may make the will vulnerable to allegations.
iv.
End of Document
a. Not all statutes require T’s signature at the end of the document BUT wise to follow that
custom.
b. Signature at the end establishes a presumption that T intended to give life to the entire will.
v. If signature is not at the end, proponent must prove that T so intended.
2. Witnesses
i. Statutes usually required at least two (2) witnesses.
a. Exception – 1/3 of states permit probate of holographic will.
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ii.
iii.
iv.
v.
vi.
b. Ensures that testator signs the will freely and without coercion, and that the document reflect
testator’s intent, not the intent of some other person.
Arguments Against:
a. Most statutes do not require T reveal the content of the will to the witnesses, so witnesses may
be unaware that will contents are a result of pressure by a scheming beneficiary.
b. Counterargument – Witnesses provide some measure of protection and also further the ritual
function of formalities.
Holographic Wills
a. Significant minority of states recognize an exception to the witness requirement for
holographic wills.
b. Holographic Will – A will that is unwitnessed but written entirely in the testator’s hand.
1. Enables unsophisticated or uncounseled T’s to control the distribution of their estates.
c. Arguments Against:
1. Undermined many of the objective of the formalities statutes.
2. Although handwriting sample may be evidence that the document was written by Testator
– it does not provide evidence that the document was an exercise of testator’s FREE
WILL.
3. Undermines the channeling and ritual functions.
i.
Case law is replete with litigants offering everything from grocery lists to cocktail
napkins as wills.
Competent & Easy to Locate
a. Witnesses should be competent adults who will be easy to locate when will is offered for
probate.
1. Lawyers often use office personal as witnesses.
b. If will may provoke a will contest:
1. Lawyers find witnesses who can provide evidence of T’s sound mind and freedom from
coercion.
Will Beneficiaries as Witnesses
a. Generally unwise to use beneficiaries as witnesses.
1. Fuels the argument that witness improperly influenced T.
2. Interested Witnesses Statutes
i.
Some direct courts to render a will void.
ii. Some strike the disposition in favor of interested witness.
iii. Some prohibit interested witnesses from receiving any probate assets that exceed
in value the amount to which the witness would be entitled under the intestacy
statute.
b. UPC:
1. Allows interested witnesses to testify and accepts their testimony as completely valid.
Attestation Clause
a. Boilerplate provision that immediately precedes the witness signature lines.
1. Recites the circumstances of execution.
2. Stipulates that T signed the document freely without coercion and in absence of undue
influence.
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3. Provides a place for witnesses to sign their names.
b. Creates a rebuttable presumption that the will was properly executed (Not always
required, but lawyers do it anyways).
c. Different from a self-proving affidavits
1. Attestation clause speaks of the action of witnesses in the PRESENT TENSE.
i.
Witness affirms present intent to act a witness to will.
2. Affidavit uses PAST TENSE.
i.
Witness swears that she has already performed the act of witnessing and signing
the will.
ii. Substitute for witness testimony – can eliminate the need to find the witness to
establish a foundation for the will.
d. UPC § 2-504
1. Allows witnesses to simultaneously sign as attesting witness and execute a self-proving
affidavit – all on a single form.
2. (drafted in response to cases in which a layers had inadvertently instructed Testator and
Witnesses to sign the affidavit, but not the will itself).
3. A Foolproof Procedure
i. The will should be in final form, pagers securely fastened and numbered 1 of __.
ii. Will should contain an attestation clause, and, if the state authorizes it, a self-proving affidavit
(or, in a jx that has adopted UPC § 2-504, the statutory language that serves both purposes).
iii. There should be at least two disinterested and competent witnesses present. Use three witnesses
if there is a risk of a will contest.
iv.
Prior to the execution ceremony, allow the witnesses time to form an opinion about the capacity
and mental state of the testator.
v. Bar will beneficiaries from the room during the execution ceremony.
vi.
Once the ceremony begins, allow no interruptions and let no one leave the room.
vii.
Ensure that testator, witnesses, and the attorney can see and hear one another.
viii.
Ask the testator if the document is her will, and if she wants to sign it; once the witnesses have
heard the answer, the testator should sign under the whiteness’s careful gaze.
ix. Ask the testator to declare to the witnesses that the instrument is her will, and to ask them to sign
the will. Read the attestation clause aloud to the witnesses before they sign it.
x. Have the witnesses sign their names and addresses. As they sign, witnesses should be able to see
the testator’s signature.
D. Will Software & Electronic Wills
1. A number of entrepreneurs have developed software to simplify the process of preparing and executing
wills.
i. The software typically prompts the customer to answer a series of questions, and then generates
a complete will based on the answers.
ii. Once the will is completed, the testator must still print it out and execute it in accordance with
testamentary formalities.
iii. Of course, if the jurisdiction has a dispensing power similar to UPC § 2-503, the will might be
admitted to probate even without compliance with all statutory formalities.
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2. In 2001, Nevada enacted a statute authorizing electronic wills that contain an electronic signature and
include at least one "authentication characteristic" of the testator. Nev. Rev. Stat. § 133.085.
i. Fingerprints, retinal scans, voice recognition, and facial recognition all qualify as authentication
characteristics.
3. More recently, Arizona and Florida have authorized electronic wills, each with somewhat different
requirements to guard against chicanery. Florida's statute, enacted in response to the Covid-19 crisis,
requires supervision of the execution ceremony by an online notary. Fla. Stat. 732.522.
II.
What Constitutes a Will? Integration, Incorporation by Reference, and Facts of
Independent Significance.
A. Integration, Incorporation by Reference, UPC § 2-513
1. Doctrine of Integration – Provides that only those pages that were present at the will’s execution
comprise the final will.
i. Attempts to solve the problem when it is unclear which pieces of paper comprise T’s will, and
which were written by T or someone else at other times.
2. Incorporation by Reference – Allows the court to give effect to a separate document if three
condition are met:
i. The document to which the will refers must have been in existence, and complete, prior to, or
contemporaneously with, the will’s execution.
ii. T’s will must evince a clear intent to incorporate the document into her will.
iii. T’s will must clearly and specifically describe the document to which T’s will refers.
 Codified by UPC § 2-510.
3. UPC § 2-513 – Testators should have the ability to distribute items of personal property by using
modifiable lists.
i. Will may refer to a written statement or list to dispose of items of tangible personal property
not otherwise specifically disposed of by will, OTHER THAN MONEY.
a. To be admissible, writing must be signed by the testator and must describe the items and
devisees with reasonable certainty.
b. The writing may be:
1. referred to as one to be inexistence at the T’s death;
2. prepared before or after the execution of the will;
3. altered by the testator after its preparation; and
4. a writing that has no significance apart from its effect on the dispositions made by the
will.
c. List does NOT need to be in existence at the time of the will’s execution.
d. List does NOT need to possess any significance apart from its effect on the will.
ii. Differences from Incorporation by Reference Doctrine.
a. Does not require un-executed document to be in existence and complete when the will is
executed.
1. Allows T to make changes to the document up to the time of death without having to pay
for additional execution ceremonies.
b. More limited in scope:
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iii.
1. Applicable only to devises of tangible personal property.
Lack of protection against fraud (requiring only T’s signature to modify the list) but justified by
the need to provide people with a simple and inexpensive way to dispose of personal property.
B. Facts of Independent Significance and the Uniform Testamentary Additions to Trusts Act
1. Doctrine of Facts (Acts) of Independent Significance – Provides that a will provision that is affected
by outside acts or events is valid if, and only if, those acts or events have a motive, purpose, or
significance separate and apart from their effect on the will.
i. EX: Devising stock and then investing/selling stock portfolio. Primary goal is to increase wealth,
not change the nature of the bequest.
ii. Relevant in two types of Circumstances:
a. When life events change a testator’s beneficiary designation, and
b. When events change the character of a bequest.
2. UPC § 2-512 – Codification of Doctrine of Facts of Independent Significance.
i. A will may dispose of property by reference to acts or events that have significance apart from
their effect upon the disposition made by the will, whether they occur before or after the execution
of the will or before or after testator's death. The execution or revocation of another individual's
will is such an event.
C. The Problem of the Pour-Over Will
1. Pour-Over Will – Type of will in which testator tries to combine their assets by devising the residuary
of their estate to the trustee of their inter vivos trust.
2. Problem:
i. Attempts to dispose of probate assets by reference to a document that is not a part of the will and
was not executed in compliance with testamentary formalities (b/c trust law imposed few formal
requirements for the creation of a valid trust).
3. Uniform Testamentary Additions to Trusts Act (UTATA) – Validates pour-over will provisions
regardless of whether the receptacle trust is funded or amended after the will execution.
i. UPC § 2-511 is substantially identical to the UTATA.
a. Requirements: A valid pour-over disposition requires that:
1. (1) the trust’s terms be set forth in a writing executed at any time and that
2. (2) the trust itself be identified in the will.
4. Common law/Rest. (3d) Trusts 19:
i. Pour-over dispositions are generally invalid unless the separate trust would either:
a. (1) satisfy the relevant testamentary formalities on its own; OR
b. (2) qualify for inclusion in the will under incorporation by reference or as an act of
independent significance.
1. Qualifying as an act of independent significance requires the trust to be separately funded
with trust property during the settlor’s lifetime.
III. Construction Problems Created by the Time Gap Between Will Execution and
Death
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A. Introduction: Classifying Devises
1. SPECIFIC DEVISE – Testamentary gift of a particularly described item of property.
i. Can only be satisfied by distributing that particular property.
ii. Common Law: Presumption that mortgages or security interests attached to property that was the
subject of a specific devise would be exonerated.
iii. Today: Rule of non-exoneration – Specific devisee takes the property subject to the security
interest; the estate's personal representative does not pay off the debt from other estate property.
iv.
When a testator's will makes a specific devise of property to a beneficiary, and the testator no
longer possesses the devised property at the time of her death, the beneficiary is entitled to "any
real property or tangible personal property owned by the testator at death which the
testator acquired as a replacement for specifically devised real property or tangible
personal property." UPC § 2-606(a)(5).
v. UPC § 2-606(a)(5)–(6) intrude further on common law ademption principles.
a. UPC § 2-606(a)(5) deals with the situation in which testator replaces specifically devised
property, and it gives the specific devisee a right to the replacement property.
1. Thus, if testator's will leaves "my 2012 Honda Accord to my daughter Barbara," Barbara
will be entitled the 2016 Toyota Camry testator purchased to replace the Accord.
b. UPC § 2-606(a)(6) offers a specific devisee the opportunity to establish that testator did
not intend ademption or that ademption would be inconsistent with testator's
testamentary plan.
c. A specific devisee who establishes either of those circumstances is entitled to the VALUE
of specifically devised property.
2. GENERAL DEVISE – Not a gift of a particular thing and can be satisfied from the general assets of
the estate instead of a particular fund or asset.
i. Devises of sums of money are the most common form of general devise.
3. DEMONSTRATIVE DEVISE – Devise of a particular amount of money to be drawn form a specific
probate asset or fund.
i. EX: $5,000 to my brother James which shall be satisfied from the sale of my Mustang.
ii. What if the sale of the item is insufficient to cover the value of the revise?
a. UPC § 3-902 – Provides that  take money from sale, and the remaining unpaid value is
treated as a general devise – payable form the probate estate.
4. RESIDUARY DEVISE – “Sweep Up” clause in the will that distributes all of the property that has not
been described as either a specific, general, or demonstrative devise.
i. Usually the last dispositive in the will.
B. Abatement
1. Rules of abatement apply when T's estate is of insufficient value to satisfy the specific,
demonstrative, general, and residuary devises in her will.
2. Common Law Order of Abatement
i. Distributions made pursuant to the intestacy statute (these distributions occur when the will fails
to make a complete disposition of the estate).
ii. Residuary devise
iii. General Devise
iv.
Specific Devises.
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a. Note: Demonstrative devises are treated as specific devises to the extent that the source of
the funding is sufficient to satisfy the devise. To the extent it is not, the devise is treated as
a general legacy.
3. UPC § 3-902 - Codifies the common law rule.
i. (b) allows the court to depart from the rules of abatement if departure is necessary to effectuate
testator's express or implied intent.
C. Apportionment of Taxes
1. Note that when a statute directs apportionment of tax liability, specific devisees will have to satisfy
tax claims in order to enjoy the specifically devised property.
i. Many testators do not intend that result. Moreover, many testators do not intend for general
devisees to bear any share of tax liability.
ii. As a result, wills often include a “direction against apportionment”—an instruction that tax claims
should be treated as claims against the estate, reinstating the common law abatement rules for tax
claims, and putting tax claims on the same footing as other claims.
2. Two other points are worth noting.
i. First, the base for the federal estate tax includes not only testator’s net probate estate, but
also certain lifetime transfers.
a. In that situation, it is important for the drafter of the will (and also the lifetime instruments)
to apportion tax liability in a manner that reflects testator’s intent.
b. If the drafter does not deal with the problem in the documents, how courts will apportion
liability remains uncertain.
ii. Second, in addition to estate taxes, many states impose inheritance taxes.
a. These taxes are not assessed on the size of the decedent’s estate, but on the size of the devise
received by each beneficiary.
b. Since inheritance taxes are on the right to receive, there is no apportionment problem: each
recipient is primarily liable for the tax on her share.
c. Again, testator’s lawyer may draft around the statutory solution.
D. Ademption
1. Ademption a/k/a Ademption by Extinction – When a specifically devised item of property is NOT
in testator's estate at death.
2. Common Law Rule (Identity Theory of Ademption) – If the specifically devised property was no
longer part of testator's estate at death, the devise was adeemed, and beneficiary received nothing.
i. If change was merely of form but not of substance – the gift would NOT ADEEM.
a. Beneficiary would get gift in its new form.
3. Intent Theory - Permits introduction of evidence about testator's intent, but also has the potential to
generate additional litigation.
4. UPC § 2-606(a)
i. Modifies CL ademption rules.
ii. When transfer of specifically devised property is so recent that decedent has not yet collected the
proceeds at the time of his death, the decedent has not had much opportunity to change his will
to make alternative provision for the specific devisee. In these circumstances, the UPC entitles
the specific devisee to at least any proceeds from the specifically devised property that
remain unpaid at testator's death.
5. Doctrine of Ademption by Satisfaction - applies if:
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i.
ii.
iii.
The will provides for the deduction of the inter-vivos gift;
At the same time that the testator gives the inter-vivos gift, the testator declares in writing that the
gift is meant to satisfy all or part of a testamentary gift; or
At any time, the beneficiary acknowledges that the inter-vivos gift was a full or partial
satisfaction of a testamentary gift.
E. Lapse
1. The Common Law Rules
i. Gifts to Individuals
a. When a will beneficiary predeceased testator, CL generally assumed T would want the gift to
lapse.
1. Property subject of the gift was distributed according to will's residuary clause (or
intestacy statutes).
2. If predeceased bene was a residuary bene, property passed to T's heirs as determined by
intestacy statute.
3. Based on the presumption that T wanted the bene to personally benefit from the devise.
ii. Class Gifts - A devise that is given to two or more people to share.
a. If gift lapses (as it would at CL) than that class member's share is distributed to the remaining
class members.
b. Only if the entire class predeceases the testator is the gift distributed through the residuary
clause or intestacy.
2. State Statutory Approaches
i. Gifts to Individuals
a. Anti-Lapse Statutes - "Save" certain devisees by designating "substitute takers" who will
receive the lapsed gift.
1. Most statutes "save" only devises to blood relatives of T.
2. Generally, do not protect devises to T's spouse, the spouses of T's relatives, or to those
unrelated to T.
i.
Exception: New Hampshire saves all lapsed gifts.
3. Almost all statutes designate the issue, not the estates, of those beneficiaries as substitute
takers.
i.
Exception: Maryland provides devisee's bequest be distributed to his estate.
4. All statutes save devises to T's predeceased descendants who leave surviving
descendants.
ii. Class Gifts
a. Most anti-lapse statutes apply to class gifts in the same way they apply to gifts to individuals.
1. In states where the statute does not expressly apply to class gifts, courts are willing to read
them that way.
3. Consequences of Lapse
i. When an anti-lapse statute does not save the gift - common law rules apply.
a. Lapsed specific, general, and demonstrative bequests are distributed pursuant to the residuary
clause.
b. Lapsed residuary gifts are distributed to either T's intestate heirs or to remaining residuary
legatees. (A few states have codified this latter approach).
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4. Void v. Lapsed Devises
i. Void Devise – One made to someone who was dead at the time of the will's execution.
ii. Lapsed Devise - One made to one alive at will execution, but who died prior to T.
iii. Individual Gifts
a. Most lapse statutes have eliminated the distinction b/w void and lapsed devises - treat them
the same way.
iv.
Class Gifts
a. Some states maintain the distinction b/w void and lapsed devises.
5. Construction Question: When Does the Will Override the Anti-Lapse Statute?
i. UPC § 2-603(B)
a. Saves gifts to T's grandparents, descendants of T's grandparents, and T's stepchildren.
b. (B)(1) – Applies to individual gifts.
1. Predeceased devisee's descendants take by representation as substitute takers.
c. (b)(2) – Applies to Class Gifts
1. Predeceased class members' descendants take each class member's share, by
representation.
d. (b)(3) – Directs that "words of survivorship, such as in a devise to an individual "if her
survives me," or in a devise to "my surviving children" are not, in the absence of additional
evidence, a sufficient indication of an intent contrary to the application of this statute.
1. UPC directs the court to ignore T's clear language and apply the anti-lapse statute even if
the T has conditioned a bequest on survival.
2. Majority of courts do not share this view.
e. (b)(4) – States that the substitute gift (created by the anti-lapse statute) is superseded by the
alternative devise only if someone is entitled to take pursuant to the alternative devise.
1. If the alternative devisee also has predeceased T, the substitute takers, not the alternative
devisee's descendants, take the property.
6. Simultaneous Death
i. 120 Hours (5 Days) - When T and beneficiary die simultaneously, the UPC and similar death
statutes provide that beneficiary is presumed to have predeceased T unless beneficiary survived
by more than 120 hours.
7. Construction Problems More Generally
i. When is Extrinsic Evidence Admissible?
a. To prove whether a will is valid or invalid, including whether the will was revoked or not
b. To correct an erroneous description in the will
c. To clarify an ambiguity in the will; or
d. To correct a mistake in the will that was the result of a scrivener's error.
ii. Incomplete Wills and the Problem of Negative Disinheritance
a. Common Law
1. Courts gave no effect to words of "negative disinheritance." Testator could disinherit an
heir only by making an affirmative provision for some other beneficiary.
b. UPC § 2-101(b)
1. Provides that in the case of negative disinheritance, any property not devised by will
should pass by intestacy as if the disinherited heir predeceased testator.
iii. Ambiguity
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iv.
a. The Difference Between Latent and Patent Ambiguity
1. Patent Ambiguity - One that appears on the will's face.
i.
The provision, as written, is not coherent.
ii. Can be resolved only by examining the "four corners" of the will.
iii. Court could NOT consider extrinsic evidence. If meaning could not be clarified,
the bequest would fail.
2. Latent Ambiguity - Will is coherent when read, but the meaning becomes uncertain
when the court attempts to distribute the property.
i.
Court CAN CONSIDER extrinsic evidence to clarify testator's meaning.
b. Is the Will Ambiguous?
c. Using Extrinsic Evidence
1. Reasons for Exclusion of Extrinsic Evidence
i.
Routine admission of extrinsic evidence would open floodgates to claims that
testator's meaning needs to be clarified.
2. Why is EE allowed for Latent Ambiguities?
i.
This evidence is more difficult to fabricate, and is likely to be probative.
3. Why is EE NOT allowed for Patent Ambiguities?
i.
When an ambiguity is patent and cannot be determined from reading the "four
corners" of the will, a court can only give meaning to the provisions by adding
words to the wills.
ii. Court would be amending the will w/o testamentary formalities.
4. UPC § 2-503
i.
Allows courts to admit improperly executed documents to probate if there is
clear and convincing evidence of testator's intent.
ii. Courts still bar the door on admission of extrinsic evidence if it is introduced to
contradict the testator's clear directives.
5. NOTE: the UPC allows EE for PATENT ambiguities
d. What Types of Extrinsic Evidence are Admissible?
Mistake
a. Mistake of Fact
1. General Rule: Where a will is clear on its face, extrinsic evidence shall not be admitted
to show that testator held a mistaken belief.
2. Courts will entertain claims of mistake when 2 conditions are met:
i.
The mistaken belief must appear on the face of the will.
ii. The disposition that T would have made but for the mistaken belief must be clear
on the face of the will.
3. UPC §2-805
i.
Authorizes courts to reform unambiguous wills and other dispositive instruments,
"if it is proved by clear and convincing evidence what the transferor's
intention was and that the terms of the instrument were affected by a mistake
of face or law."
b. Scrivener's Error
1. Traditionally, treated as ambiguities and no extrinsic evidence allowed to clear up.
2. Reasons for allowing courts to correct:
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i.
ii.
IV.
Not open floodgates since scrivener's errors are limited in number.
Consideration of extrinsic evidence is consistent with general trend toward
effectuating intent even when formalities are not complied with.
Revocation and Revival
A. REVOCATION
1. Three ways to Revoke a Will:
i. Revocation by subsequent written instrument (MOST COMMON)
ii. Revocation by physical act
iii. Revocation by operation of law due to change in testator's circumstances.
2. Revocation by Subsequent Written Instrument
i. Inconsistency - When T executes a second will that completely disposes of testator's estate,
courts will find the second will revokes the first by inconsistency.
ii. UPC § 2-507
a. Provides that execution of a completely dispositive second will creates a presumption that T
intended to revoke, rather than supplement the first will.
1. Presumption can only be overcome by clear and convincing evidence that T intended the
second will to supplement rather than revoke. (UPC § 2-507(c))
b. If second will is NOT completely dispositive - second will revokes the first only to the
extent it is inconsistent with the first.
1. Presumes second will was intended to supplement, rather than revoke the first will.
(Unless clear and convincing evidence to the contrary).
iii. Codicil - Most common example of written instrument that revokes a will.
a. Typically revoke a part of the will while reaffirming the rest.
b. Must be executed in accordance with testamentary formalities.
c. Re-executes the ENTIRE will on the date of the codicil (Common Law?) UPC 2-510
3. Revocation by Physical Act
i. T can revoke a will by performing an act of revocation, such as tearing, burning, marking, or
obliterating, on the will with the intent to revoke, or by directing another to perform these acts
in testator's presence.
ii. UPC § 2-507
a. Only the part of the will destroyed is deemed revoked.
b. (partial revocation by physical act)
iii. T Destroying Alone (No Witnesses)
a. If will was last known to be in T's possession, there is a presumption that T revoked the will.
1. Strength of presumption depends on the degree of control T had over the will and
whether others would benefit from the will had access to the will.
2. Presumption can be overcome if other evidence establishes that T intended his will to be
valid.
iv.
Lost Wills Statutes
a. If presumption is rebutted, how can will be admitted to probate if its missing?
v. Duplicate Wills
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a. Generally, revocatory acts on only one of the wills will not be sufficient to revoke the will.
(Must revoke both of them)
b. Restatement
1. IF T mistakes a copy for the original, and T's intent to revoke can be proven by clear and
convincing evidence, the failure to revoke the original will can be excused as harmless
error.
vi.
Revival of the First Will (OOHHHWEEE)
a. If a second will, which revokes a first will, is revoked by PHYSICAL ACT, the first will
remains revoked unless "it is evident from the circumstances of the revocation of the second
will or from the testator's contemporary or subsequent declarations that the testator intended
the previous will to take effect as executed." UPC § 2-509(a)
4. Revocation by Operation of Law
i. UPC § 2-508 (Pre-1990)
a. Divorce or annulment revokes any disposition of property made to ex-spouse – court
should distribute the property as though ex-spouse predeceased T.
b. Problems
1. Doesn't revoke devises made to ex-spouse's relatives.
2. Applies only to testamentary bequests and not to transfers at death that occur outside of
probate.
ii. UPC § 2-508 (Now)
a. Revokes all dispositions to ex-spouse, ex-spouse's relatives, that occur at testator's death.
B. REVIVAL
1. Revival problems arise in limited circumstances
i. T executes a second will that revokes a prior will, then T revokes the second will by physical act.
In doing so, T may believe that will no. 1 will be probated at his death.
2. Common Law
i. First will cannot be revived unless re-executed with testamentary formalities.
3. UPC § 2-509
a. If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory
act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The
previous will is revived if it is evident from the circumstances of the revocation of the
subsequent will or from the testator’s contemporary or subsequent declarations that the
testator intended the previous will to take effect as executed.
b. If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory
act under Section 2-507(a)(2), a revoked part of the previous will is revived unless it is evident
from the circumstances of the revocation of the subsequent will or from the testator’s
contemporary or subsequent declarations that the testator did not intend the revoked part to
take effect as executed.
c. If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by
another, later, will, the previous will remains revoked in whole or in part, unless it or its
revoked part is revived. The previous will or its revoked part is revived to the extent it appears
from the terms of the later will that the testator intended the previous will to take effect.
ii. Creates a presumption that will no. 1 remains revoked.
a. Presumption only applies if will 2 completely revoked will 1.
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b. Can be overcome if evidence shows that T intended to revive will one.
iii. If Will 2 was a Supplement Rather Than Revocation
a. Presumption reversed – Will one is presumed to be revived in its entirety, unless
circumstances show that T intended that will no. 1 remain revoked.
C. Dependent Relative Revocation
1. Doctrine applies when testator's revocation of a will is conditioned on a mistake of law or fact.
i. If T had known the truth, she might not have revoked the will.
2. If evidence shows that ignoring T's revocation would better serve T's intent than validating the
revocation, the court will probate the revoked will.
D. Limits on the Power to Revoke: Joint Wills and Will Contracts
1. Reciprocal Wills - Each spouse's separate will has provisions that mirror the other's.
2. Joint Will - One will executed by both spouses.
3. Will Contracts
i. UPC §2-514: Contracts Concerning Succession
a. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if
executed after the effective date of this Article, may be established only by:
1. (i) provisions of a will stating material provisions of the contract,
2. (ii) an express reference in a will to a contract and extrinsic evidence providing the terms
of the contract, or
3. (iii) a writing signed by the decedent evidencing the contract.
b. The execution of a joint will or mutual wills DOES NOT CREATE A PRESUMPTION
OF CONTRACT NOT TO REVOKE THE WILL OR WILLS.
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Chapter 5: Contesting the Will
I.
Capacity
A. To make a valid will - the testator must have testamentary capacity.
1. Testamentary Capacity - Legal standard (not medical): Requires testator to understand, at the moment
T executes the will:
i.
1) The nature and extent of her property;
ii. 2) the natural objects of her bounty; and
iii. 3) that she is engaged in the enterprise of making a will.
B. Who has standing to contest a will?
1. People with a financial interest in invalidating the last will have standing to contest the will.
2. When testator has executed multiple wills, the beneficiaries of prior wills have standing to contest a
will that reduces or eliminates their bequests.
3. Heirs have standing to contest wills even if testator has cut them out of previous wills.
4. Creditors generally have no standing to contest, because the contest will not affect the size of the
estate.
II.
Challenging the Will: Proving Incapacity
A. Attesting Witnesses
1. The most persuasive testimony about the testator’s capacity comes from the attesting witnesses.
“Testimony of those present when the will was executed is entitled to the greatest consideration.”
B. Insane Delusion
1. Proving Insane Delusion
i.
Contestant must show that T clung to a belief that was not true, despite being presented with
all contrary evidence, and that his erroneous belief influenced the dispositions in his will.
ii. If court finds insane delusion led T to disinherit one or more close family members - entire
will is generally denied probate.
a. Results in distribution by intestacy (unless there is a prior, valid will)
b. If any facts support T's belief - court will treat T's misimpression as a mistake of fact and
will probate the will.
c. I.e., if T can produce rational reasons to support the decision, the court will deny to find
insane delusion.
C. Undue Influence
1. Courts Accept Undue Influence if 3 Factors are Present
i.
A confidential relationship b/w the testator and the alleged influencer
ii. Suspicious circumstances surrounding the execution of the will, like the testator suffering from
a mental infirmity or the influencer assisting the testator in the preparation of the will; and
a. Courts often treat dispositions as suspicious when made to persons who do not appear to
be natural objects of testator’s bounty.
b. Courts find suspicious circumstances when testator’s will has changed dramatically over
time to benefit the supposed influencer.
iii. An unnatural disposition of property in the will, meaning that there is no reasonable basis for
the disposition. In re Will of Moses
2. Two Types of Undue Influence Claims:
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i.
Testator's free will is overcome by pressure from another. - Pressure amounts to coercion; T
acts out of fear.
ii. Close relative/trusted advisor, acting out of self-interest, manipulates T into believing that the
will advances the T's own testamentary agenda, but in fact, the will advances the advisor's
agenda.
iii. Both types arise when there is a confidential relationship between bene and T.
3. Confidential Relationship - Relationship of trust and intimacy where parties might assume that each
has the other's best interests in mind.
i.
If contestants establish T had a confidential relationship with bene and that suspicious
circumstances exist, those two factors together create a presumption of undue influence in most
states.
a. Once presumption established - burden of proof shifts to will bene to establish he did not
exercise undue influence.
ii. Spouses and Other Partners
a. Courts are more likely to find undue influence by a spouse when testator’s will cuts out
issue by a prior marriage.
iii. Other Confidential Relationships Involving Non-Relatives
a. Lawyer/Client – Generally, courts find a rebuttable presumption of undue influence when a
lawyer drafts a will naming herself as a beneficiary.
b. Spiritual Advisors – Courts continue to scrutinize gifts to religious organizations for signs
of undue influence.
c. Nursing Home Operators – A disposition in favor of a nursing home operator is inherently
suspicious
4.
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37
Chapter 9: Power of Appointment
I.
Terminology and Classification
A. Restatement (Third) of Property: Wills and Other Donative Transfers § 17.1
1. Power Of Appointment:
i. A power that enables the donee of the power to designate recipients of beneficial ownership
interests in or powers of appointment over the appointive property.
ii. Gives the donee the power to override the distributive terms of the trust and to direct the trustee
to distribute some of all of the trust res outright to the appointees.
B. The Parties To A Power Of Appointment
1. Donor:
i. Person who creates the power of appointment
2. Donee:
i. The person who exercises the power, decides how the donor's property should be distributed.
3. Appointees:
i. People to whom the donee appoints the property
4. Objects of the Power/Class of Permissible Appointees:
i. Class of people eligible to receive the appointive property.
5. Takers in Default:
i. People who take in the absence of an exercise.
C. Scope of the Power
1. General Power: Donee has the complete freedom to choose the beneficiaries (creditors can reach)
i. Donee can appoint anyone, including himself or his estate.
ii. Included in donee’s taxable estate.
iii. Because of this, donor’s will sometimes find it useful to create a power that will not be construed
as general but that nevertheless gives the donee broad powers.
2. Special Power/Non-General Powers: Restricts the class of potential appointees (creditors CANNOT
reach).
i. When the donor places a restriction such as “among my children” or “among my descendants” or
“among my relatives.”
ii. Donee CANNOT appoint themselves.
3. Restatement: General and Specific
i. (a) a power of appointment is general to the extent that the power is exercisable in favor of the
donee, the donee's estate, or the creditors of either, regardless of whether the power is also
exercisable in favor of others.
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ii. (2) A power of appointment that is not general is a non-general power.
4. Exclusive and Non-Exclusive Powers
i. Exclusive: Donee is free to exclude one or many members of the class of permissible appointees
(Courts presume exclusive power)
ii. Non-exclusionary: Donor explicitly requires the donee to appoint some assets to each member of
the class; the donee may not exclude any object of the class.
a. A problem with the non-exclusive power is how much is the minimum amount that must be
left to any member of the class in order for the appointment to be valid.
D. Time of Appointment
1. Presently Exercisable: Donor gives the donee a power of appointment that the donee is free to exercise
immediately.
2. Postponed Power: A power exercisable by the donee only after the expiration of a stated time or
after the occurrence or nonoccurrence of a specified event.
i. If the donor wants the donee to have as full a picture as possible when deciding how to distribute
trust property, donor will specify that donee may only exercise the power by will.
3. Testamentary: When the donor requires that the power be exercised by will.
E. Powers of Appointment and the Internal Revenue Code
1. The code also defines general powers differently than state law does:
i. Under state law, if a donee can appoint to herself, she has a general power.
ii. Under the code, if the donee's power to appoint principal to herself is limited by an ascertainable
standard, the power is non-general for tax purposes.
a. Ascertainable under the code is "health, education, support, or maintenance" or some
combination of those terms.
iii. When it is a special power it is not included for tax purposes.
iv. When it is exercisable by a donee in conjunction with another donee then it is not within the estate
for tax purposes.
II.
Creation and Exercise: The donor generally creates a power of appointment in
conjunction with creation of a trust.
A. UPC § 2-704. Power of Appointment; Meaning of Specific Reference Requirement
1. "If a governing instrument creating a power of appointment expressly requires that the power be
exercised by a reference, an express reference, or a specific reference, to the power or its source, it is
presumed that the donor's intention in requiring that the donee exercise the power by making
reference to the particular power or to the creating instrument, was to prevent an inadvertent
exercise of this power.
B. UPC § 2-608. Exercise of Power of Appointment
1. In the absence of a requirement that a power of appointment be exercised by a reference, or by an
express or specific reference, to the power, a general residuary clause in a will, or a will making a
general disposition of all of the testator's property, expresses an intention to exercise a power of
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appointment held by the testator only if (i) the power is not exercised or (ii) the testator's will manifests
an intention to include the property subject to the power.
III. Scope of the Power
A. Exercising a Power by Creating Another Trust: A donee is free to exercise the appointment by
creating another trust or by appointing the property to an existing trust that benefits only
permissible appointees beneficiaries as long as the trust only benefits permissible appointees
(objects of power) and so long as the donor has not manifested a contrary intent.
1. With general powers, we do not even have to worry about this.
i. Restatement § 19.14 Nongeneral Power-Permissible Appointments: Except to the extent that
the donor has manifested a contrary intention, the donee of a non-general power is authorized
to make an appointment, including one in trust and on that creates a power of appointment in
another, that solely benefits permissible appointees of the power.
2. The donee’s lawyer must ensure that when the donee appoints to a trust, the trust cannot benefit anyone
who is not an object of the power.
B. Exercising a Power by Creating Another Power
1. Suppose now that the donee of a power not only wants to use the appointive assets to create another
trust, but also wants to give one of the trust beneficiaries a further power to appoint the trust property.
i. If a general one, creating a new power presents no difficulties.
a. Again, since the donee could have appointed in favor of herself or her estate, and then
created a new trust and a new power, there would be little reason to prevent her from doing
directly—creating a power while exercising donor’s power—what she could have done
indirectly by first appointing in favor of her own estate. See Restatement (Third) of
Property: Wills and Other Donative Transfers, § 19.13, cmt. a.
ii. For a special power, it is allowed when the donee appoints by giving a general power of
appointment to a person who is within the class of permissible appointees, or the donee appoints
by giving a non-object of the power a special power to appoint among people who are within
the class of permissible appointees.
C. Exceeding the Power's Scope
1. Limits on the Holder of a Special Power
2. Consequences of Ineffective Appointments
i. General Powers: The Capture Doctrine
a. A donee's appointment can be ineffective; however, if the appointee is dead, or if the
appointment violates RAP.
b. A donee's ineffective appointment captures the appointive property for donee's estate.
c. CA says it goes to donee's estate if the donee has manifested an intent that the appointive
property be disposed of as property of the donee rather than as in default of appointment.
d. In restatement jurisdictions, if the power is general, the property will pass through the
donee's estate whether or not the donee takes actions that capture the power, capture is
therefore irrelevant.
ii. Special Power
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a. When there is a special power, the capture doctrine does not apply, otherwise the donee
would be able to turn it into a power for himself, and goes to the permissible class.
b. Special and General Powers: Allocation of Assets
1. If the donee has blended appointive assets with donee's own assets, the assets should be
allocated to maximize the effectiveness of donee's intended dispositions.
D. Contracts to Appoint and Releases
1. Contracts to Appoint: If the contract is enforceable, the donee—who was not entitled to appoint in
favor of himself—has now arranged to benefit from his status as donee of the special power.
i. Courts typically hold when a power is special, a donee's contract to appoint is unenforceable, at
least so long as the contract benefits a person outside the class of permissible appointees.
ii. A general power can have an enforceable contract when the power is presently exercisable.
a. Problem - Threat of restitution may encourage donee to comply w/ terms of unenforceable
K undermining goal of assuring B exercises his judgment free of constraints b/c K still
counts for something b/c B subject to liability out of his estate.
2. Releases
i. Generally, a release assures that the appointive property will pass to the takers in default
(general power), if however, the power is a special power limited in favor of a defined class, a
release assures that the property will pass to members of the defined class.
ii. There can be a partial release, which means the donee binds herself not to exercise the power
in favor of particular people.
iii. Thus, donee can diminish the class in a special power or make a general power special.
iv.
A release from a general to a special power does not avoid tax consequences.
IV.
Rights of Creditors
A. When donor creates a SPECIAL POWER of appointment, there is general agreement that the appointive
property should not be subject to claims by the donee's creditors.
B. When donor creates a GENERAL POWER of appointment, the agency theory is considerably less
persuasive: Donor has given donee the power to appoint in favor of himself, his estate, or his creditors,
and it is far less clear why donee, who has the power to use the appointive property to pay his debts, should
not be compelled to do so.
C. EQUITABLE ASSETS DOCTRINE – Reflects the common law position and holds that the appointive
property is subject to claims by donee's creditors but only if the donee actually exercises the power.
1. If the donee chooses not to exercise the power, permitting the appointive property to pass to the takers
in default, then the creditors may not reach the appointive property.
2. The EAD then, effectively permits the insolvent donee to choose between having the appointee assets
pass to his creditors, or to the takers in default.
i. If it is presently exercisable, creditors can reach it.
D. Restatement: Treats property subject to a presently exercisable general power of appointment as the
property of the donee and it is available to satisfy claims (UTC as well)
1. When property is subject to a general testamentary power of appointment, it would also make the
property available to satisfy claims by the donee's creditors whether or not the power is exercised, but
creditors would not be entitled to reach the property until the donee's death.
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i.
V.
Accordance with the terms of the creating instrument, except in the case of a testamentary
general power.
Bankruptcy
A. For the benefit of an entity other than the debtor.
B. If the debtor/donee has a general, presently exercisable power, the bankruptcy code treats that power as
the equivalent of absolute ownership of the appointive property, and the appointive property becomes a
part of the bankruptcy estate.
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