Trusts and Estates Outline, Fall ’01
Professor Cooney
Chapter 1: Introduction to Family Property Law
Concept (a): Donative Freedom –
 Generally: Freedom of disposition, or donative freedom, encompasses several distinct yet related ideas
– the right to pass your property on at death, the right to choose who gets it, the right to choose the
form in which they get it, and the right to give another person the right to make those choices.
Although this freedom has a strong cultural tradition, it is not considered to be constitutionally
protected against all forms of interference or limitation.

Themes throughout the course:
1. To what extent should people be able to pass on the wealth they accumulated during life?
a) Generally: US Trust did a survey of “the most affluent 1% of the population” and determine
that 87% stated that a central advantage of wealth is the opportunity to pass it along to their
children. From a donor’s prospective, inheritance is advantageous. Similarly, from a donee’s
perspective, an inheritance can make an enormous financial difference.
b) Freedom of Disposition: The law, as a general principle, states that we must “give affect to
the donor’s intention.” On rare occasions, this intent is defeat by:
i.
Rule against perpetuities – As a general premise, a settlor cannot set up a will that
lasts forever.
ii.
Forced share for surviving spouse [Statutory] – A testator cannot leave a surviving
spouse with nothing. This statutory right gives the spouse a “forced share,” i.e. a
right to take a certain portion of the decedent’s estate.
iii.
Executing a valid will – The mechanical rules for executing a will often defeat the
testator’s intent. These requirements are:
1. The will is in writing
2. Signed by the testator
3. The witnessing requirements must be met
iv.
Lawsuits – A sibling rivalry often produces a lawsuit when one sibling is left more
than another. Thus when one sibling files suit for the purpose of attempting to obtain
more of the parent’s assets, that lawsuit serves to perpetuate the use of intent
defeating rules. The EPIC does, however, attempt to breakdown the use of intent
defeating rules.
2. How does the changing definition of “family” affect disposition? Consider:
a) Multiple marriage: Often after a divorce, each spouse remarries and thus children may end
up with multiple partners. How are the stepparents involved? By law they don’t have to leave
the stepchildren anything.
b) Adoption: To what extent do adopted children have rights against their biological parents?
c) Unmarried partners: [ex. Hawaii statute] When one of the unmarried partners dies, the other
is not considered to be an “heir” under the law. But, if available under state law, same sex
unmarried partners can enter “reciprocal beneficiary agreement” to obtain the same benefits
of a married couple.
d) Role of “family” in inheritance law: Should we stick to the notion of the “family” when
considering inheritance law or should the inheritance be considered on a case by case basis tin
order to determine who people really/actually want to give their money to.
 Prof: This idea is not likely to go very far because of the litigation that would result.
e) Multi-generation families: With the frequency of three and four generation families, how is
the wealth distributed?
3. Probate/Nonprobate dichotomy:
 Probate property: Property that the decedent owned at death that passes either by will or
intestacy.
1

Each of these can
be arranged
without the
assistance of an
attorney.
Nonprobate property: [Will substitutes] Property that does not pass under a decedent’s will
or by intestacy. Examples:
a) Joint checking account in marriage, in which there is a right of survivorship
b) Life insurance policy
c) Pension accounts (i.e. 401K)
d) Purchasing a house (right of survivorship)…as tenants by the entirety or as joint tenants
e) Revocable living trust
 Limitations on will substitutes: The Federal Estate Tax treats will substitutes the
same as wills. At the state level, will substitutes are treated as inter vivos transfers
and therefore attestation does not matter. Thus, there is seldom a question about its
validity.
Concept (b): Terminology –

Generally: Historically, different terms have been used to deal with realty and personalty, and to the
passage of property at death.
Testacy terms –
1. Generally:
a) Testate – A person who dies with a valid will is said to have died testate and is called the
testator or testatrix. Today, all persons who died with a valid will are referred to as the
testator.
2. Personal Property Terms:
a) Legacy or bequest – a disposition of personal property
b) Legatee – the recipient of a disposition of personal property
3. Real Property Terms:
a) Devise – a disposition of land by will.
b) Devisee – the one to whom land was given
Intestacy terms –
1. Generally:
a) Intestate – A person who dies without a valid will has died intestate and is referred to as the
intestate. In intestate law, there is an important distinction to remember. Title to and the right
of possession of land pass directly to heirs, where as title to and the right of possession of
personal property pass to the administrator.
 Administrator – the individual to whom title to and the right of possession of personal
property pass. This individual is a fiduciary who is often called a personal representative.
b) Partially intestate – When testators don’t dispose of all their property in their will, it’s usually
said that they have died partially intestate. Whether a person dies partially or fully intestate,
intestate property is distributed in accordance with intestate succession statutes.
c) Statutes of descent and distribution – Statutes on intestate succession
2. Personal Property Terms:
a) Distribution – intestate succession to personal property
b) Distributess or next of kin – those who take personal property by intestacy
3. Real property terminology:
a) Descent – Inheritance of land. Historically, the word inheritance itself was reserved for
intestate succession to land.
b) Inheritance –intestate succession to land
c) Heirs – those who took land by intestacy
UPC – [Originally written in 1969 to promote procedural reform. The main reform of the 1990 code
focused on substantive reform.]
1. Devise – The UPC defines this term as “a testamentary disposition of heirs real or personal
property.” Many lawyers have interpreted this statutory definition as meaning that, in UPC states,
the words “devise” and “devisee” are the proper words to use in wills for bequests of personal
property as well as for devises of land. Generally, this newer usage is appropriate and thus
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testamentary dispositions of land or personal property are referred to as “devises” and the
recipients as “devisees.”
Concept (c): The Probate/Nonprobate dichotomy –

Probate property: Items of property owned by the decedent at death. The distribution of the decedent’s
property is accomplished either by will or intestacy.
a) Will – A will is a default mechanism that controls the distribution of property that isn’t otherwise
controlled by a nonprobate instrument. A will transfers ownership in the future, i.e. at the death of
the decedent. This is the major difference between a will and an inter vivos transfer, which
transfers a remainder future interest in property now (subject to divestment). Wills are often
“kitchen table” occurrences in which people need not consult a lawyer to comply the requisite
requirements. A will has three basic clauses:
i.
Specific – A clause that disposes a specific item of property.
ii.
General – A clause that disposes of a general pecuniary (i.e. monetary) sum of money.
iii.
Residuary – A clause that disposes of any remaining “after acquired” property not
otherwise distributed by a specific or general clause to a named individual. The presence
of a residuary clause prevents any portion of a decedent’s property from passing under
intestacy.
iv.
End of the world clause – In case everyone to whom the testator has made a devise does
not survive, this clause gives the property to a certain charity or a class gift to a group of
heirs.
b) Intestacy – A statutory default mechanism that becomes operative when a property owner dies
without having executed a will or without having executed any will substitutes.

Nonprobate property: Property owned by the decedent during life, but at death it shifts to named
beneficiaries. It does not pass under a decedent’s will or by intestacy. Nonprobate property functions
like a will because the decedent who makes the beneficiary designations retains control over that
property right up until the time of death when the right of possession shifts. Generally, state law treats
these transfers as inter vivos. The best and most viable examples of nonprobate property are will
substitutes:
 Will substitutes: Property or contractual arrangments, established during life, that provide for the
right of possession to a certain amount of money or itens of property to passs to the beneficiary or
surviior at death. These satisfy the “present transfer test” because they transfer a future interest in
Each of these can
property to the beneficiaries upon their creation.
be arranged
a) Joint accounts/tenancy [in marriage or in land, in which there is a right of survivorship]
without the
b) Life insurance policy
assistance of an
attorney.
c) Pension accounts (i.e. 401K)
d) Revocable living trust
 Limitations on will substitutes: The Federal Estate Tax treats will substitutes the same as
wills. At the state level, will substitutes are treated as inter vivos transfers and therefore
attestation does not matter. Thus, there is seldom a question about its validity.
Application (c):
1.
2.
PROBLEM, PG .22  The following must pass through probate:
a) G’s car
b) The savings account
c) The mutual fund
QUESTION 1 FROM THE SYLLABUS
a) True, this is probate property because G is the surviving joint tenant.
b) True, this is probate property because this is a joint account between G and W.
c) True
d) False, this is not probate property. W cannot take because all life insurance policies require you to
survive the insured. It does pass to A and B who did survive and that passes outside of probate.
e) False, A and B survived so they take outside of probate.
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Chapter 2: Intestate Succession
Concept (a): Introduction – [UPC §§1-107, 2-104, -108; Pre-1990 §§2-104, -108]

Generally: Intestacy is a default rule that applies in the absence of a valid will or a will that was found
invalid. Intestate succession is the statutory estate plan: it is the legislature’s guess of what the average
decedent would want done with their probate property – applicable to the extent a valid will does not
apply.
 Property Subject to Intestate Succession: A decedent’s probate property passes under the
governing jurisdiction’s statute of descent and distribution by intestate succession to her heirs.
Nonprobate is not subject to intestate succession.
 Net Probate Estate: An intestate decedent’s probate property that is subject to distribution by
intestate succession is the probate estate, reduced by such items as taxes, debts, administrative
expense, funeral expenses, and the family allowances.

Partial Intestacy – The decedent has a will, but if not all of the estate passes under the will, the
remainder of the estate will pass under intestacy law. There are a number of ways in which partial
intestacy can occur:
1. No residuary clause – Individuals who have wills may fail to include a residuary clause. This is
rare occurrence, which generally cannot be corrected. Thus, the residuary must pass by intestacy.
2. Creation of trust – If a residuary clause exists, and a trust is created, but the terms of the trust don’t
dispose of the property interests in the residuary estate, then whatever is not covered by the
residuary estate is disposed of through partial intestacy.
 Example: To A for life, then to X if X survives A.  These terms do not delineate who will
take if X does not survive and therefore the laws of intestacy will. Intestacy states that the
alternative interest will go to G’s heirs (these heirs are determined at G’s death, and are not
re-determined at A’s death). Let’s say G’s heirs are M and N. They have an interest in the
property if A were to die prior to X. They are:
 Successors in interest – The class of people that receive property through either (1) a
residuary clause or (2) through intestacy.
3. Class gift – If the testator creates a class gift (gift in which the takers are determined by their
relationship to the testator), the intestacy statute determines the make-up of that class,
although those people don’t take through intestacy.
 Example: G gives to A for life, then to X if X survives A, but if not to A’s heirs. This
creates a class gift for A’s heirs. A’s heirs are determined as of A’s death. Although A’s
heirs do not take by intestacy from A (because G’s will designates the devise), the
intestacy statute determines the members of the class at A’s death.
 Prof: Here it does not matter if A left a will. The property passes to A’s heirs
regardless of whether A left a will purporting to devise that property to someone
else. The who are to take in the class gift are called A’s “heirs apparent.” These are
heirs who are certain to inherit unless he or she dies first or is excluded by a valid
will.

Requirement of Survival of the Decedent – Only persons who survive the decedent are entitled to
succeed to the decedent’s property by testate or intestate succession. This requirement was expressed
in a number of intestacy law schemes:
1. Common Law: Unless altered by statute, survival by only an instant is sufficient. Because of
certain problems when it is impossible to determine the order of deaths (i.e. automobile accident),
most states have enacted legislation.
2. Uniform Simultaneous Death Act (1953): This was a widely accepted statute titled “no sufficient
evidence of survivorship” and dealt with simultaneous death situations in which the decedents
died without children, grandchildren, and without a surviving spouse. In substance, the statute
read, “the property of each person shall be disposed of as if he had survived.” Under these
circumstances, the statute the parents of each decedent to take by intestate succession. Without this
statute, the property of each decedent would cross because intestacy schemes would purport to
give the estate of each spouse to the other spouse.
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
3.
Prof: The standard for this statute reads “no sufficient evidence that the person have died
otherwise than simultaneously.” This standard has proven problematic when two people die
leaving large estates and lawyers get involved. When the lawyers get involved, they argue that
one of the two decedent’s did not die first in order to receive a beneficial portion of the estate
for their client.
Pre-1990 UPC: The pre-1990 UPC provided that “any individual who fails to survive the decedent
by 120 hours is deemed to have predeceased the decedent.” This standard must be proven by
“clear and convincing evidence.” The 1990 UPC similarly embraces the 120-hour requirement.
General Patterns of Intestate Succession –
Concept (b): Intestate Share of the Surviving Spouse: [UPC §2-102; Pre-1990 §2-102]

Generally: The share of the surviving spouse of an intestate decedent varies significantly from state to
state. In many jurisdictions, the spouse’s share depends on who else survived the decedent. General
evolution:
1. Old Rule: The older laws stated that the surviving spouse got 1/3 of the decedent’s estate while the
children received 2/3. This pattern, however, grew unsatisfactory because the majority of people
who took advantage of the intestacy scheme had small estates.
2. Pre-1990 UPC [§2-102]: This statute was considered a major breakthrough because it shifted the
concept y giving the surviving spouse a limp sum plus a fractional sum if there is any excess. This
was considered extremely different from simply giving the spouse an automatic fractional sum.
About half of the states utilize a statute similar to this one.
3. 1990 UPC [§2-102]: The surviving spouse’s intestate share under the 1990 UPC generally is
greater than the share of a SS under most non-UPC succession statutes. As a general premise the
statute gives a SS a fixed dollar amount plus at least a fraction of any balance in the estate,
notwithstanding the existence of other potential beneficiaries (such as children) of the decedent’s
bounty. This off-the-top fixed amount effectively gives many small estates entirely to the SS,
superceding all other rules announced in the statute. Text of the Statute and Comments:
The intestate share of a decedent’s surviving spouse is:
(1) the entire estate if:
(i)
no descendent or parent of the decent survives the decedent; or: This section refers
to an older couple that did not have any children and thus the decedent is not
survived by any parent or descendent.
(ii)
all of the decedent’s surviving descendant are also descendants of the SS and there is
no other descendent of the SS who survives the decedent: Here, the concern is
whether the SS has an descendent from a prior marriage.
(2) the first 200K plus three fourths of any balance of the intestate estate, if no descendent of the
decedent survives the decedent, but a parent of the decedent survives the decedent: This is a
relatively rare situation because most estates are not big enough to come within this category.
Thus, if an estate were not large enough, the SS would simply take 100% of the estate under
these circumstances.
(3) the first 150K plus one half of an balance of the intestate estate, if all of the decedent’s
In the presence
surviving descendents are also descendents of the SS and the SS has one or more surviving
of any
descendents who are not descendents of the decedent: This provision is concerned with the
descendents, the
multiple marriage scenario. This provision specifically applies when the couple has joint
spouse takes half
children, but the SS also had children from a prior marriage. Here, the decedent had children
of the estate and
the descendents
only with the SS.
take the other
(4) The first 100K plus one-half of any balance of the intestate estate, if one or more the
half.
decedent’s surviving descendents are not descendents of the SS: This section is also concerned
with multiple marriage scenarios but it does not provide much financial security.
Concept (c): Descendents [1990 UPC §§2-103, -106, -708, -709, 5-202, -423; Pre-1990 UPC
§§2-103, -106]

Descendents (or “issue”): One who follows in lineage, such as a child or grandchild, but not a
collateral relative.
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1.
2.
Descendents Share: A descendent can take a portion of the intestate’s estate in either of the
following two scenarios –
a) No surviving spouse: In the absence of a SS, the law of all states, including UPC and nonUPC, gives the entire estate to the decedent’s descendants, i.e. to the decedent’s children and
descendants of deceased children to the exclusion of other relatives such as parents and
siblings.
b) Presence of a SS: When a decedent dies leaving a SS as well as descendents, the
descendant’s share is determined in accordance with §2-102. As a general rule when the
decedent dies leaving descendents, however, half of an intestate decedent’s estate is given to
the surviving spouse and the other half to the decedent’s descendants [See §2-102(3-4)].
Representation among Descendents – Any share that goes to the decedent’s descendents is divided
among them by representation. Representation is system by which an heir assumes the rights and
obligations of his or her predecessor. The term “descendants” (or “issue”) denotes a multigeneration class, which includes not only children, but also grandchildren, great-grandchildren,
and so on through the descending line. As a general rule, the first living person descendent takes
a portion of the intestate estate. A system of representation need only be employed when there is
an unusual order of deaths. Consider a few examples:
Example 1
[D] ------------ SS (½ intestate estate)

[C-1]

GC-1 (½ intestate estate)
This example illustrates the “right of representation”
by which C-1’s descendents stand in C-1’s shoes by
representing C-1 to take what C-1 would have
received if living.
Example 2
[D] ------------ SS (½ intestate estate)

[C-1]

GC-1
(1/8)
3.
C-2 (¼ intestate estate)
Different here is the combination of
equality at the child level, division occurs
as if both children were alive, with the
concept of representation among the
children of C-1 (with equality among them
as well).
GC-2
(1/8)
Systems of representation for descendents: There are several systems of representation that all
have at least a few states that have adopted them. These systems can be used within wills or trusts.
If so, the grantor must specify the type of system and then define it to avoid litigation over
potentially ambiguous terms. For example, G could not say “to my nieces and nephews per
stirpes” because it would be a single generation class gift, which is a problem because per stirpes
divides at every generation. Similarly, in the Sellick case, it is impermissible for G to state: “to my
grandchildren in equal shares per stirpes.” Anyway, an explanation of the four especially popular
and basic systems follows:
a) Per-stirpes: Proportionally divided between beneficiaries according to their deceased
ancestor's share. This system is faithful to the idea of representation. There are three steps to
utilizing this system:
i.
Determine primary shares: Divide the estate into primary shares at the generation
nearest to the decedent. The number of primary shares is equal to the number of
children alive at the decedent’s death plus the number of children who predeceased
the decedent leaving descendents who survived the decedent. The number of primary
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shares is determined at the children generation even if no children survive the
decedent.
ii.
Allocate the primary shares: On share goes to each living member of the children
generation, if any. One share also goes to the descendents of each deceased child
with living descendents, if any.
iii.
Divide and subdivide each primary share allocated to the living descendants of a
deceased member of the children generation: Each of the primary shares is divided
and subdivided among the deceased child’s descendants in the same manner as if the
deceased child and other younger generation descendants who have died were
decedents.
 Prof: Of the four systems, per stirpes is as close as you get to a pure system
because it follows a theory. The theory is “vertical equality” which means the
intestate has a certain number of families at his death and they are all entitled to
an equal share.
b) Per capita with representation (modified per stirpes): With the exception of the first step,
this system is identical to the per stirpes system. In this system’s first step, divide the estate
into primary shares at the generation nearest to the decedent that contains at least one living
member. Thus…
i.
Determine primary shares: if all of the decedent’s children are dead, but at least one
grandchild is alive, the primary shares are determined at the grandchildren
generation rather than at the children generation in a strict sense, then, the
grandchildren take in their own right, per capita, and not as representatives of the
decedent’s deceased children.
ii.
Allocate the primary shares: On share goes to each living member of the children
generation, if any. One share also goes to the descendents of each deceased child
with living descendents, if any.
iii.
Divide and subdivide each primary share allocated to the living descendants of a
deceased member of the children generation: Each of the primary shares is divided
and subdivided among the deceased child’s descendants in the same manner as if the
deceased child and other younger generation descendants who have died were
decedents.

The modified per stirpes and the pre-1990 UPC do not work out to have a consistently applicable system.
Sometimes the two systems will work out to give you a horizontal result and other times it will be vertical
equality. These two are not pure systems because they swing and sway between the two theories without
always giving the same result.

c) Pre-1990 UPC [§2-106]: The statute here was designed to codify step one of per capita with
representation so as to fix the primary share generation at the nearest generation to the
decedent containing at least one living member. This system, however, departed from the per
capita with representation system at step three by dividing at every subsequent generation.
i.
Determine primary shares: if all of the decedent’s children are dead, but at least one
grandchild is alive, the primary shares are determined at the grandchildren
generation rather than at the children generation in a strict sense, then, the
grandchildren take in their own right, per capita, and not as representatives of the
decedent’s deceased children.
ii.
Allocate the primary shares: On share goes to each living member of the children
generation, if any. One share also goes to the descendents of each deceased child
with living descendents, if any.
iii.
Divide “in the same manner”: Each share allocated to the descendents of a deceased
member of the primary-share generation was divided and sub-divided “in the same
manner.” The same manner meant as if deceased members of the primary share
generation were decedents with respect to their primary shares. The same manner,
therefore, required that a primary share be subdivided at the nearest generation to the
deceased descendent containing at least one living member.
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4.
d) 1990 UPC: [§2-106]  “Per capita at each generation”  The set up provision for this
system is §2-103, which states that any part of the intestate estate not passing to the
decedent’s surviving spouse under §2-102, or the entire intestate estate if there is no surviving
spouse, passes: “(1) to the decedent’s (lineal or direct) descendents by representation.” §2106 adds onto §2-103 provision by stating, “the remaining shares, if any, are combined and
then divided in the same manner among the surviving descendents of the deceased
descendents as if the surviving descendents who were (already) allocated a share and their
surviving descendents had predeceased the decedent.” This system was designed to assure
equality among members of the same generation whose parents predeceased them. This
system can likewise be divided into three steps:
i.
Divide the estate: Divide the estate into primary shares at the nearest generation to
the decedent that contains at least one living member. The number of primary shares
is the number of living persons in that generation plus the number of deceased
person in that generation who have living descendents.
ii.
Allocate the shares: Allocate one primary share to each living member of the
primary share generation.
iii.
Single share combo: Combine the remaining primary shares, if any, in to a single
share and assume that the descendants already allocated a share and their
descendants had predeceased the decedent. Then distribute that single share among
the decedent’s descendants in accordance with step one.
 Prof: The 1990 UPC follows “horizontal equality,” which believes that people in
the same generation ought to get a same-size share. The 1990 UPC favors
families with more children, while per stirpes favors families with fewer
children.
Summary of the systems:
a) Identify the primary share generation  identify what is called the “primary share
generation” (“PSG”).
i.
Under the per-stirpes system, the primary share generation is the decedent’s children.
ii.
Under the other three systems, the primary share generation is the oldest generation
that has at least one living member.
b) Determine how many primary shares there are. To do so, count the number of living
people in the PSG plus the number of deceased people in that generation that has living
descendants. So if you have one person in the PSG that is deceased that did not leave any
descendents, they don’t count because there is no one to give anything to. ALL SYSTEMS
ARE THE SAME HERE.
c) What do you do with the primary shares of living people in the PSG? Give one primary
share to each living person in the primary share generation. This is true for ALL four systems.
d) What do you do the primary shares of the deceased people in the PSG? For the deceased
people in the PSG, we have differences…
i.
Per-capita at each generation (the system employed by §2-106 of the 1990 UPC) 
Combine all of the remaining shares and then distribute them equally among the next
generation. Essentially, this system combines each of the decedent’s descendents and
distributes the remainder of the estate among all of them.
ii.
Other systems (per-stirpes, per capita with representation, and pre-1990 UPC system)
 They distribute the primary shares of the deceased members among that decedents
descendants.
Application (c): Representation to Descendents
1. Chart #1True for every system
G



C-1
C-2
C-3
(1/3)
(1/3)
(1/3)
8
2.
Chart #2True for every system
G



[C-1] C-2
C-3


(1/3)
(1/3)
GC-1 GC-2
(1/6)
(1/6)
3.
Chart #3Per stirpes

[C-1]

GC-1,GC-2
(1/6)
(1/6)
4.

[C-3] This is the PSG, divide initially so each has 1/3

GC-4,GC-5,GC-6
(1/9),(1/9),(1/9)
Chart #3 (comparison)All other systems
G



[C-1] [C-2] [C-3]



GC-1,GC-2
GC-3 GC-4,GC-5,GC-6
(1/6), (1/6)
(1/6)
(1/6), (1/6), (1/6)

5.
G

[C-2]

GC-3
(1/3)
Comments on Chart #3 – Under per-stirpes, the primary share generation is still the children.
Under the per stirpes system, we don’t care if someone is alive or not. In this case, all three
children are dead. But, under the other three systems, we begin by giving to the grandchildren
because the primary share generation begins there because they have living members.
Chart #4
Primary share generation
Per capita with representation
G



[C-1] C-2
C-3
(1/3)
(1/3)
[GC-1]
GGC-1
(1/12)
GGC-2
(1/12)
GGC-1
(1/9)
Comments – In this case, we have per capita with
representation (also called modified per stirpes). It is
similar to per stirpes, but the primary share generation
could start lower. In this case, the result is the same as it
would be using per stirpes, but it could change by if the
first generation had no living members b/c the PSG would
start lower. The point is the per capita with representation
also divides at every generation.
[GC-2]

GGC-3
(1/6)
The pre-1990 Code [§2-106]
G



[C-1] C-2
C-3
(1/3)
(1/3)
[GC-1]
[GC-2]
6.
This is the PSG, and it is divided equally
Primary share generation
GGC-2 GGC-3
(1/9)
(1/9)
Chart #5
Per stirpes and Per capita with representation and pre-1990 UPC
G
9
Under all these
systems, the
primary share of
the deceased
person drops
down to the
living members
of that decedent.

C-1
1/3

[C-2]

GC-3
1/3

[C-3]

GC-4
1/9
GC-5
1/9
GC-6
1/9
1990 UPC: Per capita at each generation
G



C-1
[C-2] [C-3]
1/3


GC-3 GC-4 GC-5 GC-6
1/6
1/6
1/6
1/6
7.
Comments: Once c-1 gets his share, we
take him out as if he did not exist. Then
we look for the PSG, which contains
GC-3 (he represents the first generation
with a living member). Then we divide
up the remaining estate among the four
GCs. There is two-thirds left so we
divide it by four. That’s how they each
get 1/6.
More examples of the systems (not in book):
a) Per stirpes:
G



C-1
[C-2] [C-3]
1/3


GC-3 GC-4 [GC-5] [GC-6]
1/3
1/9
GGC-1 GGC2
GGC-3
1/18
1/18
1/9
Note: Here the PSG is the first
group, even though C-1 is
dead. So, we drop down the
portions and divide and redivide at every generation.
b) Pre 1990 UPC  This system keeps the shares of deceased members separate except in the
case where everybody in that generation has predeceased the intestate. This gives the same
result as per stirpes.
G



C-1
[C-2] [C-3]
1/3


GC-3 GC-4 [GC-5] [GC-6]
1/3
1/9
GGC-1 GGC2
GGC-3
1/18
1/18
1/9
c)
Per capita with representation (modified per stirpes)  This system is just like per stirpes
except that this system determines that the PSG is the first generation with a living member.
This gives the same result here as per stirpes.
G



C-1
[C-2] [C-3]
1/3


GC-3 GC-4 [GC-5] [GC-6]
1/3
1/9
GGC-1 GGC2
GGC-3
1/18
1/18
1/9
d) 1990 UPC:

G


10
Note: There are 3 primary
shares. Allocate 1 primary
share to each living person.
Now, pretend C-1 is gone.
Combine the two shares into
2/3. Now divide that 2/3 as if
C-1 did not exist. So, redetermine the PSG. Here, there
are four primary shares. We
now give a primary share to
each living member. Now,
pretend as if GC-3 and GC-4
did not exist. Again, redetermine the PSG, which are
C-1
1/3
[C-2]

GC-3
1/6
[C-3]

GC-4 [GC-5] [GC-6] Primary share generation for the 2/3
1/6
GGC-1 GGC2
GGC-3 PSG for the remaining 1/3
1/9
1/9
1/9
Concept (d): Ancestors and Collaterals –

Background: Apart from the decedent’s own descendents, blood relatives include either ancestors or
collaterals. A collateral relative is descended from an ancestor of the decedent. The category of
collateral relative is narrower than that, however, because a descendant of an ancestor may be a
descendant or an ancestor of the decedent. Thus, a collateral relative is a descendent of an ancestor,
excluding however, the decedent’s own descendents and ancestors. Examples of collateral relatives
are: brothers, sisters, nephews, and nieces (descended from the decedent’s parents); aunts, uncles, and
cousins (descended from the decedent’s maternal or paternal grandparents), and so on.
1. Parents and their Descendents – The decedent’s parents and their descendents inherit to the
exclusion of more remote ancestors and their descendents. The decedent’s parents and their
descendents inherit, however, only if the decedent leaves no surviving descendents.
a) Parents: Under the UPC, §§2-102 and -103, parents of decedents with large estate inherit if
the decedent leaves a SS but no descendents. If the decedent leaves neither a SS nor surviving
descendents, the decedent’s parents inherit to the exclusion of the decedent’s surviving
siblings or their descendents under UPC §2-103 and most other intestacy schemes.
b) Descendents of Parents: If neither of the decedent’s parents survives, the descendants of the
decedent’s parents inherit by representation. The UPC §2-106 (1990) applies the per capita at
each generation system.
*Other Notes:
i.
Ancestral Property: At CL, land returned to the branch of the family from which the
decedent inherited it. This rule persists in a few states, but it is generally limited to
land. Neither the pre-1990 nor the 1990 UPC contains an ancestral property statute.
ii.
Relatives of the Half Blood: Generally, relatives of the half blood are treated the
same as relatives of the whole blood.
iii.
Relatives by Affinity: Blood or adopted relatives of the decedent’s spouse such as the
spouse’s parents, siblings, or descendants of siblings, and spouses of the decedent’s
blood or adopted relatives, such as daughters- and sons-in-law, are relatives by
affinity. Almost all jurisdictions exclude them from inheriting under intestacy
statutes.
2. More Remote Ancestors and Collaterals:
a) UPC Parentelic System: [UPC §2-103] “Share of Heirs Other Than Surviving Spouse” 
This statute employs the “parentelic” system and is comes into play if there is no descendent,
and no parent or descendent of a parent alive to take. A parentela consists of an ancestor and
that ancestor’s surviving descendants. The parentelic system of inheritance is based on a
preference for persons who are in the nearest parentela to the decedent, who receive a portion
of the estate by representation (§2-106). The statute says, in general, that any part of the
estate not passing first to the SS or the decedent’s descendents passes in the following order:
(1) to the decedent’s(lineal) descendents by representation (§2-106): The decedent’s own
surviving descendents are the first parentelic and they are the first in line to take. If no
one is alive in this group, then go to #2.
(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to
the surviving parent: The decedent’s parents are called the second parentelic and they
are second in line to take. If no one is alive in this group, then go to #3.
11
(3) if there is no surviving descendant or parents, to the descendents of the decedent’s
parents or either of them by representation: If the decedent’s descendents and the
decedent’s parents are all dead, then the descendents of the decedent’s parents are the
third parentelic and are next in line to take.
(4) If there is no surviving descendent, parent, or descendent of parent, but the decedent is
survived by one or more grandparents or descendents of grandparents…Degree of
Consanguinity: Consanguinity is the relationship of persons of the same blood or origin.
This section of the UPC first divides the estate into paternal and maternal halves,
assuming there is at least one grandparent of descendent of a grandparent in each half. If
both of the grandparents on one side predeceased the decedent, that half is a separate
parentela for the purposes of representation among the descendents of the predeceased
grandparents.
 Standard: Look for the nearest lineal ancestor of the decedent of whom any
descendant is alive and distribute the property per stirpes to that ancestor’s
descendents.
b) Nearest Kindred – Determining Degrees of Kinship: [Parents-grandparents-etc] Many
American statutes, but not the UPC, provide that if no member of any of the specifically
designated parentela survives the intestate, the estate passes to the intestate’s “nearest
kindred,” or “next of kin” generally without representation. Under this system, the relatives in
the lowest degree of kinship, being the intestate’s nearing living relatives share the estate
equally. Each heir takes an equal share, because all the relatives who are entitled to participate
in the estate will be in the same degree. In its primary sense, each degree reflects a difference
of one generation. Two systems, other than the UPC, are employed:
 Civil Law System: To determine which collateral relatives will take, we must count:
(1) Find a common ancestor: A “common ancestor” is one that the decedent has in
common with a potential taker. For example, the common ancestor of the decedent
and his brother are their parents. So, to begin, count the number of generations up
from the intestate to the intestate’s ancestor who is also an ancestor of the collateral
relative and
(2) Count down to the collateral: Count down from that common ancestor to the
collateral relative.
Under this system, a sister or bother is related to the decedent in the second degree, a
niece or nephew is related in third degree, and an aunt or unless is also related in the
third degree. This system is not representational.
 Modified Civil Law System: When there are two or more collateral relatives in equal
degree who claim through different common ancestors, those claiming through the
ancestor nearest to the decedent take to the exclusion of the others.
Application (d): Examples of Ancestors and Collaterals –
1.
U-1
Example 1
MGP
U-2
M
S-1
S-2
N-1
N-2
GN
2.
PGP
F
D
S-3
1C
Under every system: The parents would under the parentelic system pursuant to
§2-103(2). Under the civil law and modified civil law systems, the parents also
take to the exclusion of everyone else because they are the “lowest degree” and
we give to the people who are of the lowest degree.
Example 2:
[MGP]
U-1
A
U-2
[M]
[PGP]
[F]
12
A
Parentelic system: [§2-103] N-1, S-2, S-3 would
each take 1/3.
Civil law system: First, consider who has the
lowest degree of relationship. In this case, the
sisters are related to the decedent in the second
degree and of the survivors, they are most closely
related because they have the lowest numbers. And
remember that the civil law system is not
representational so N-1 would NOT take.
Therefore, S-2 and S-3 would each take 50%.
[S-1]
S-2
N-1
N-2
D
S-3
1C
GN
Modified civil law system: This system would
yield the same result in which S-2 and S-3 each
take half.
3.
Example 3:
[MGP]
U-1
U-2
[M]
[S-1]
[S-2]
N-1
[PGP]
[F]
D
[S-3]
A
1C
Parentelic System: N-1 and N-2 would each take half
because this system is representational and goes to
the nearest descendents. It would be different if S-2
had another child because under per stirpes it would
be N-1 would be 50%, N-2 would be 25% and
hypothetical N-3 would be 25%.
N-2
GN
Parentelic System: This would yield 50% to
GN-1 and 50% to N-2.
4.
Example 4:
Civil Law System: It goes to the survivors
[MGP]
U-1
U-2
[M]
[S-1]
[S-2]
[N-1]
N-2
[PGP] with the lowest degree of relationship
[F]
D
[S-3]
A
1C
Modified Civil Law System: When there are
two or more collateral relatives in equal
degree who claim through different
common ancestors, those claiming through
the ancestor nearest to the decedent take to
the exclusion of the others. Therefore, in
this case it would go exclusively to N-2.
GN
5.
Example 5:
[MGP]
U-1
because they are nearest. Here, the Aunt,
Uncle, other Uncle, and Nephew-2 are all
third degree relatives. Therefore, they would
all receive ¼. It is not a representational
system so GN receives nothing.
U-2
[M]
[S-1]
[S-2]
[N-1]
[N-2]
[PGP]
[F]
D
[S-3]
A
1C
[GN]
Parentelic System: [2-103(4)] §4 says
that the estate should be split into
halves up the paternal line and then
another half up the maternal line.
Following this pattern, the Uncles
would split it on one side and the
Aunt receives half on the other side.
Civil Law System: The
Uncles and Aunt are all third
degrees so they split it into
thirds.
Rearranging Intestate Succession:
13
Concept (e): Generally & Agreement among the heirs – [1990 UPC §§1-403, 3-912]

Generally: If an intestate’s heirs aren’t satisfied with the distribution under the intestacy statute, they
normally can divide up the decedent’s assets in a different way.
 Problem of Unascertained Successor or Successors who Lack Capacity: [§1-403] If all the
successor are competent adults, any agreement among the successor will be enforced. In many
situations, however, successors include minors or persons who lack capacity to enter into
agreements. Thus, §1-403 provides, in the absence of a conflict of interest, for conservators to
represent the protected persons whose estates they control, for trustees to represent trust
beneficiaries, for parents to represent their minor children under certain conditions, and for the
appointment of guardians ad litem to represent the interests of unborn and unascertained parties. It
only applies, however, to “formal proceedings [and] judicially supervised settlements,” which is a
major limitation because judicial supervision is often financially inconvenient.
 Potential Adverse Tax Consequences: [§3-912] Agreements can have adverse tax consequences to
the parties. To the extent the agreed upon distribution differs from that which the intestacy laws
would have directed, federal gift tax laws may be incurred. In this sense, an agreement under §3912 is the substantive equivalent of the heirs having received their inherited portions under the
intestacy laws and then having made gifts of part or all of those assets to one or more of the parties
to the agreement.
 Qualified Disclaimers as An Alternative Course of Action: If the heirs want to rearrange the
intestacy pattern of distribution, a qualified disclaimer could avoid federal gift tax liability. For
example, if a Decedent dies, leaving both a child and a SS, the child could file a disclaimer, which
would allow the surviving spouse to take what the child would have taken and thus avoid the gift
tax. But, the child cannot choose who he wants to give the property to because once he files a
disclaimer, he is treated like he pre-deceased the decedent. Thus, the intestacy statute returns to redistribute what the child would have taken. [See also Concept (f)].
Concept (f): Disclaimers – [§1990 UPC §2-801; Pre-1990 UPC §2-801]

Disclaimers at CL: A disclaimer, sometimes called a renunciation, is the refusal to accept gratuitously
transferred property (i.e. inheritance or other property interest). The common law broadly protected a
transferee’s right to refuse acceptance. The courts applied a relation-back doctrine, under which a
disclaimer was considered to relate back the date of the transfer and operate as a nonacceptance. Under
this doctrine, all claims of creditors and governmental taxing authorities seeking to attribute ownership
rights to the disclaimant were ineffective. Attempts to unify the area of disclaimers have largely been
ineffective.
 Partial Disclaimers: Statutes generally recognize partial disclaimers whereby courts have
permitted the disclaimer of a gift once they assure themselves that the testator did not consider
separate gifts to be interrelated.
Application (f):
1.
Per stirpes: Under this system, it does not matter that A
is treated as if he pre-deceased G because the PSG is
the first generation below G, regardless of whether it
has a living member. Thus, under per stirpes Z takes ½
while X and Y each take ¼.
Example 1: B predeceases and A disclaims.
G
X
A
[B]
Y
Z
Per capita with representation/pre-1990 UPC systems: Here, the PSG is
the first one with a living member. Thus, under the per capita with
representation and the pre-1990 UPC systems, the PSG would begin
with X, Y, and Z. Thus, they would each take 1/3.
UPC §2-801(d): Like the per capita with representation and the pre-1990 UPC systems, the PSG begins at the first living member. But, in
this case, the statutory language “but if…descendents of the disclaimant would share in the disclaimed interest by representation or otherwise
were the disclaimant to predecease the decedent, then the disclaimed interest passes by representation…to the descendents of the disclaimant
who survive the decedent.” The Comment to this section states that A’s disclaimed interest “passes [exclusively] to A’s descendents, if A left
any descendents.” Unlike the per capita with representation and the pre-1990 UPC systems, a disclaimer under the UPC does not allow
people to change the size of their shares Thus, A’s because disclaimed interest is ½, §2-801(d) says the interest is split between X and Y, to
the exclusion of Z.
14
General rule: If A disclaims, he is treated as if he predeceased the decedent. The estate is then distributed as
if the disclaimant predeceased the decedent.
2.
Example 2: A predeceases and B disclaims.
Per stirpes: Under this system, it does not matter that B is treated as if he
pre-deceased G because the PSG is the first generation below G,
regardless of whether it has a living member. Thus, under per stirpes Z
takes ½ while X and Y each take ¼.
G
[A]
X
B
Y
Z
Per capita with representation/pre-1990 UPC systems: Here, the PSG is
the first one with a living member. Thus, under the per capita with
representation and the pre-1990 UPC systems, the PSG would begin with
X, Y, and Z. Thus, they would each take 1/3.
UPC §2-801(d): Here A predeceases and B disclaims. The result under the UPC would allow X and Y to each take ¼, while
Z takes ½. This falls under the above-discussed “exception” to the representation system of the 1990 UPC.
Concept (g): Formality versus Discretion in Intestate Succession –

Generally: Traditional legislation does not authorize a court to inquire into the harmony or disharmony
in the marital relationship. It does not allow for inquiry into the SS’s contribution to the decedent’s
wealth. Mechanical rules may seem problematic if one child helped to care for an aging parent, while
another child did not because intestacy lets them take an equal share. But, giving probate judges
discretion is also problematic because the capability of judges may very. Thus, all these issues are
deemed irrelevant. Thus, the current American law of intestate succession can be characterized as
having a high degree of formality.
Altering Intestate Succession by Means Other than Testamentary:
Concept (h): Advancements and Related Doctrines – [1990 UPC §§2-101(a), -109; Pre-1990
UPC §§2-101, -110]

Advancement: An advancement is a gift made by a decedent during life to a family member. It is a
gift, however, that has the effect of reducing the share of the probate estate that the family member
receives under the intestate statute upon the decedent’s death. BY taking into account lifetime parental
gifts to children, the advancement doctrine achieves more equal sharing by the children of their
parent’s wealth when the parent dies without a will.
 Common Law Standard: All gifts made during the life of the decedent were treated as
advancements, except gifts of small sums or gifts made for the purpose of maintenance or in
satisfaction of the decedent’s support obligation. Proof of whether a gift fell within one of the
exceptions to the rule rested on objective evidence of the nature or purpose of the gift.
 UPC §2-109: The statute merely requires a contemporaneous writing by either the decedent
indicating an intent to make an advancement or by the donee acknowledging the gift is an
advancement. The statute expands the class of eligible advancees beyond the decedent’s children
to include all of the decedent’s heirs. Under §(c), an advancee’s descendents are not chargeable
with the advancement if the advancee predeceases the intestate decedent unless the decedent’s
declaration provides otherwise. How are advancements calculated from a decedent’s estate?
Utilize the CL Hotchpot Method:
 Hotchpot Method: This is the mechanism by which advancements are charged against the
advancee’s ultimate distributive share. The process requires a contemporaneous writing and is
calculated by…
1. Total Probate Estate: Add advancements plus decedent’s probate estate at death.
2. Calculate the §2-102 share
3. Subtract the surviving spouse’s share from the total probate estate
4. Divide:
Remaining probate estate
--------------------------------------------= initial heir’s monetary share
Number of heirs
5. If any heir received an advancement greater than the potential intestate share, then throw
that heir out of the hotchpot.
15
6.
7.

Repeat 1-4 for each heir always doing the spouse first. When repeating, add only the
advancements of the remaining heirs in the hotchpot.
Resulting heir share – advancement heir received (if any) = Intestate share for heirs.
To illustrate, assume that:
(1) decedent’s probate estate is $100K;
(2) inter vivos advancements (all declared properly by a contemporaneous writing by
decedent) included an outright transfer of $40K to Child A,
(3) placement of $60K in joint tenancy with Child B, and
(4) an $80K insurance beneficiary designation of Child C (note that if a life insurance policy
may or may not be treated as an advancement); and
(5) Child D received nothing. The chart:
G
A
40K advance
B
joint account w/B for $60
C
80K life insurance beneficiary
D
nothing
Now add the probate estate plus the advancements, divide by four and reduce
accordingly:
Probate Estate at death – 100K
Add advancements:
To child A –
40K
To child B –
60K
To child C –
80K
To child D –
00k
$280K/4 = $70K
Child C has already received more than his portion, so we “throw C out of the hotchpot”
and recalculate…Now, only B, C, and D are considered:
Probate Estate at death – 100K
Add advancements:
To child A –
40K
To child B –
60K
To child D –
00k
$200K/3 = $66.6K
Now, we reduce and finalize the figures. Thus,
A will receive 26.6K
B will receive 6.6K
D will receive 66.6K
 NOTE: If a surviving spouse is involved in the “hotchpot,” then calculate the
surviving spouse’s intestate share before calculating the amount each descendent will
receive.
Concept (i): Negative Wills – [UPC §2-101(b)]

Question: G makes a will and excludes one relative from receiving property. But, then G dies partially
intestate and the excluded relative is determined to be an “heir” for intestacy purposes at G’s death.
Can the excluded relative take?
 Common Law: The CL stated that G could not disinherit an heir who would take by intestacy.
 UPC §2-101(b): “A decedent by will may expressly exclude or limit the right of an individual or
class to succeed to property of the decedent passing by intestate succession. If that individual or a
member of that class survives the decedent, the share of the decedent’s intestate estate to which
that individual or class would have succeeded passes as if that individual or each member of that
16
class had disclaimed his or her intestate share.” Thus, the UPC states that you can disinherit heirs
through intestacy by creating a “negative will.”
Chapter 3: The Changing American Family
Concept (a): Who is a “Surviving Spouse”? –

Background: Spousal rights are available only to a survivor who was a spouse at the decedent’s death.
Thus, the rights accruing to a SS in probate law are based on status. These rights include the right to a
share of the estate if the decedent dies intestate.
1. Formal Marriage – a spouse formally married to the decedent at the time of the decedent’s death
is universally recognized as sufficient to be called a “surviving spouse” and thus be entitled to
statutory rights. In most states, the only way to obtain statutory rights as a surviving spouse is to
be lawfully married to the decedent when the decedent died. Under the UPC, a marriage
certificate is a bright line rule entitling the holding SS to statutory rights.
2. Divorce, Separation, Misconduct (did not really cover) – If divorce or annulment dissolved the
decedent’s marriage, the decedent’s former spouse loses the status of surviving spouse.
3. Putative Spouses – A putative spouse is one who enters into a marriage believing in good faith
that it is a valid marriage, but it turns out later that the decedent was not available to marry
because of his involvement in a prior marriage, from which he was not divorced. This “putative
spouse” doctrine is designed to protect the financial interests of these “good faith” spouses. This
problem was initially controlled by the CL, but is now largely controlled by statute:
a) Uniform Marriage and Divorce Act §209: Under this statute, a putative spouse acquires the
“rights conferred upon a legal spouse.” A putative spouse is defined in this statute as , “any
person who has cohabited with another to whom he is not legally married in the good faith
belief that he was married to that person.” Courts have generally used this putative spouse
doctrine to recognize a claim for an intestacy share by an unmarried co-habitor.
b) Pre-1990/1990 UPC: Neither version of the UPC explicitly confers rights upon or denies
rights to putative spouses. Thus, the UPC does not define “spouse” and UPC states are free to
adopt the putative spouse doctrine.
4. Common-law Marriage – To be in CL marriage, a couple must presently agree to enter into the
relationship of husband and wife, co-habit (or actually and openly living together as husband and
wife), and sometimes they must hold themselves out to the world as husband and wife so as to
acquire a reputation as a married couple. Generally, CL marriage is insufficient to confer spousal
rights. Thus, most states have abolished CL marriages, but some states that abolished CL marriage
will apply a de facto CL marriage doctrine to couples who lived together (or stayed overnight) in a
CL marriage state.
 Minority Exception [Kellard v. Kellard] – A couple who registered as H and W when staying
overnight in a hotel in a CL marriage state, had sex that night, and had lengthy relationship
history, were sufficient factors for a non-CL marriage state to confer spousal rights in a
subsequent divorce suit.
5. Domestic Partnerships – This is a relationship between partners who are sexually intimate and
financially interdependent. The issue in this area is what rights does each party to the partnership
have upon dissolution:
a) Are contracts between the parties enforceable? [NOTE: These contractual agreements are
different from a traditional pre-marital agreements, which must be in writing, and serve to
reduce the rights of one married partner against another.]
 P contributes $ for property: [Estate of Eriksen] P’s state a COA when they allege that
they made a monetary contribution toward the purchase of specific property on the
understanding that they would be the owner or part owner. The fact that the property isn’t
titled in the name of the O is not a defense.
 P contributes services: [Marvin v. Marvin] Express and Inseparable Standard – A
contract between non-marital partners will be enforced unless expressly and inseparably
based upon an illicit consideration of sexual services.
 Limitation: [Meretricious consideration] If the consideration of sexual services was
express in the alleged (oral) K and inseparable, then there is no cause of action
17
because this is a K for prostitution. If it was not express or was express but is
separable, then there is a COA.
b) Are there any statutory rights arising out of the K for the surviving domestic partner?
Generally, rights do not arise for the surviving domestic partner. Only three states give rights
to a surviving domestic partner (Hawaii, Vermont, and NH).

Minority [Hawaii/Vermont]: Hawaii enacted a Reciprocal beneficiary statute, which
gives elective share rights to same sex couples. Vermont enacted a Civil Union statute,
which allows same sex couples entering into a civil union to have the same rights as a SS.
The concern of both legislatures was that if they allowed same sex marriages, then the
entire gay community would move to their states to get married. Often within these
limited statutes, they require the couple to register and satisfy certain statutory factors.

Proposed Alternative: A project called “Principles,” which is a little like the Restatement
takes the view that domestic partners do have rights to property settlements and all other
rights a divorced couple would have. Under this standard, there must be a minimum time
before rights accrue and it makes no difference if you are same sex partners or not.
Application (a):
1.
2.
ORAL AGREEMENTP STATES A COA WHEN P CONTRACTS WITH D IN A DOMESTIC
PARTNERSHIP FOR SERVICES THAT ARE NOT BASED ON SEX: Marvin v. Marvin (1976) – P
and D entered into an oral agreement whereby while the parties lived together, they would combine
their efforts and earnings and would share equally any and all property accumulated as a result of their
efforts whether individual or combined. Further, they agreed to hold themselves out to the public as
husband and wife and P would render her services as companion, homemaker, housekeeper and cook
to D. At the outset, the court noted that the fact that a man and woman live together without marriage,
and engage in sexual relationship, does not in itself invalidate agreements between them relating to
their earnings, property, or expenses. Rather, agreements between non-marital partners fail only to the
extent that they rest upon a consideration of meretricious sexual services. In this case, the contract
between P and D made no express mention of sexual services and was thus not based upon sexual
services, leaving the agreement enforceable.
 Prof: Ask (1) were sexual services expressed; and (2) if the expressed sexual services are
separable. The court in Goode (see pg. 92) also recognized that such agreements can be based on
the expectations of the parties.
ORAL AGREEMENTWHEN THE SEXUAL SERVICES WITHIN A NONMARITAL
DOMESTIC PARTNERSHIP AGREEMENT ARE INSEPARABLE FROM THE AGREEMENT AS
A WHOLE, P DOES NOT STATE A COA:
a) Jones v. Daly (1981) – P and D, a homosexual couple, orally agreed that P would move into D’s
condominium with D, quit his job, go travelling with D, and cohabit with D as if they were
married. They also entered into an oral agreement whereby each agreed, during the time they
cohabited together, they would combine their efforts and earnings. And, they would share equally
any and all property accumulated as a result of their efforts, whether individual or combined,
except that D would give P a monthly allowance for his personal use. They also agreed that they
would hold themselves out as cohabiting mates, and P would render his services as a lover,
companion, homemaker, traveling companion, housekeeper and cook t D. The agreement also
provided that in order that P would be able to devote a substantial portion of his time to D’s
benefit as his lover, companion, homemaker, etc., P would quit his job and D would furnish
financial support to P for the rest of his life. When D died, P claimed that all of the property in D’s
estate, according to their agreement, was to be shared and divided equally between P and D. The
court referred to the Marvin rule in which an agreement between nonmarital partners is invalid
only if sexual acts form an inseparable part of the consideration for the agreement. Applying this
standard, the court held that P’s rendition of sexual services to D was an inseparable part of the
consideration for the co-habitation agreement and was the predominant consideration. The court
reasoned that the agreement that property was to be shared between P and D did not rest upon P’s
acting as D’s traveling companion, housekeeper, or cook as distinguished from acting as his lover.
b) Whorton v. Dillingham (1988) – P and D, two homosexuals, began living together and orally
agreed that P’s full time occupation was to be D’s chauffeur, bodyguard, social and business
18
3.
secretary, partner and counselor in real estate investments, and to appear on his behalf when
requested. P was to render labor, skills and personal services for the benefit of D’s business and
investment endeavors. Also, P was to be D’s constant companion, confidant, traveling and social
companion, and lover, to terminate his schooling after college, and to make no investment without
first consulting with D. In consideration for P’s promises, D was to give P a one-half equity
interest in all real estate acquired in their joint names, and in all property thereafter acquired by D.
D also agreed to financially support P for life. D was also to engage in a homosexual relationship
with P. The parties also specifically agreed that any portion of the agreement found to be legally
unenforceable was severable and the balance of the provision would remain in force and effect. P
complied with the agreement for many years until D barred P from D’s premises and refused to
perform his part of the K by giving P the promised consideration. The court, after quoting the
Marvin rule, held that unlike Marvin in which the sexual services were implied, they are express in
this case and therefore the K cannot be enforced to the extent that it is dependent on sexual
services for consideration. Because the consideration for sex was sex, that portion is severable.
Unlike Jones in which the agreement was not on both sides, the parties in this case agreed to be
one another’s lover.
SUBSEQUENT STATUTORY LEGISLATIONTHE PARTIES TO AN ORAL AGREEMENT
FOR SERVICES IN A DOMESTIC PARTNERSHIP MUST ADHERE TO THE CHANGES OF
SUBSEQUENT STATUTORY LEGISLATION IN ORDER TO RETAIN CERTAIN RIGHTS
UNDER THEIR AGREEMENT: Zaremba case – A relationship between P and D began in mid-1966
and in 1977, the couple started to live together. The relationship dissolved in 1994. During the time of
their relationship, P orally promised to shop, pay bills, and deal with accountants, etc. while D was
supposed to provide a share of his income. Although they had a sexual relationship, it was not part of
their promises to one another in the oral contract. A Texas statute, enacted in 1987 (in the middle of
their relationship), required such agreements to be in writing. The court noted that the legislature did
not expressly make the new statute retroactive and thus presumed that the statute applied prospectively
only. But, the court noted that the relationship continued to exist after the effective date of the statute
and because the couple did not reduce their agreement to writing, the statute applies and P therefore
does not state a cause of action.
Who is a “descendent”?
Concept (b): Intestate succession – [UPC §§1-201(5), 2-107, -113, -114; Pre-1990 UPC §§2107, -109, -114]

Who is a “descendent” generally: The question of who qualifies as a descendent is treated as a status
question in the sense that the inheritance rights of the decedent’s descendents are linked to the
identification of a legally recognized parent-child relationship. For example, a decedent’s grandchild is
a grandchild because a legally recognized parent-child relationship exists between the decedent and a
parent of the grandchild. But, the issue arises as to what extent does or should the law recognize a
parent-child relationship.
1.
Adopted children: In all states, either by statute or decision, adopted children inherit form their
adoptive parents. But, there is less agreement on inheritance by adopted children from their
biological parents and from ancestors and collateral relatives of their biological and adoptive
parents.
a) Stranger to the adoption rule: [Common law] If the person who died intestate was not the
adopting parent, then the adopted child was not treated as part of the person’s estate. Under
this rule, adopted persons inherited from both their natural and adoptive parents, but only
inherited through their natural parents. Adopted persons, thus, did not inherit through their
adoptive parents.
b) UPC §2-114(b): Adopted persons are treated as children of their adoptive parents for all
inheritance purposes. In other words the UPC abrogates the common law stranger to the
adoption rule and allows a child not only to inherit from but also through the adoptive parent
and allow adoptive family members to inherit from or through the adopted child. The UPC
also states generally that an adopted individual is the child of his or her adopted parents and
not of his biological parents, but:
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
2.
Exception: [Stepparent adoption] If the spouse of either natural parent adopts the child,
then the relationship between the child and that natural parent continues. If this applies,
the child and his/her descendents retain the right of inheritance “from and through” the
non-custodial natural parent, but that non-custodial parent does not have the right to
inherit through the child. The terminology “from and through” means by representation,
which is also sometimes called “upstream and downstream” inheritance.
Children of parents not married to each other:
a) The Evolving Legal Status of Nonmarital Children: Nonmarital (out of wedlock, illegitimate,
or bastard) children were, at CL, filuis nullius (the child of nobody). They simply did not exist
and had no inheritance rights or other status under the law. Subsequently, some common law
courts enforced a father’s duty to support his children born out of wedlock, indicating some
willingness to recognize the parent-child relationship between nonmarital children and their
biological parents.
b) Inheritance Rights of Nonmarital Children:
i.
UPC §2-114(a): Individuals inherit from and through their biological parents
regardless of their parents’ marital status.
ii.
Non-UPC: The statutes uniformly entitle nonmarital children to inherit form their
mothers, but difference exist concerning the children’s right to inherit from their
fathers. [See Trimble v. Gordon; Lalli v. Lalli].
Application (b):
1.
2.
ADOPTED CHILDREN (NON-UPC DECISION)AN ADOPTED CHILD IS THE CHILD OF
HIS ADOPTING PARENTS RATHER THAN HIS BIOLOGICAL PARENTS: Estate of Donnelly
(1973): W died in 1964. H died in 1970 leaving a will that gave everything to W if she survived.
Because she did not, this is an intestacy case and the issue was whether a natural child adopted by her
stepfather could inherit by intestacy as an “heir.” The trial court considered the child an “heir” for
intestacy purposes. But, the reviewing court disagreed by stating that the broad legislative intent was to
remove an adopted child form his natural bloodline for purposes of intestate succession. The court
reasoned that the new family of the adopted child is to be treated as his natural family. Thus, the
intention was to transfer all rights of inheritance out of the natural family upon adoption and place
them entirely within the adopted family. As to this case, if the adopted child cannot take from her
natural father, she should not represent him and take from his father.
 Note: Both the pre-1990 and 1990 UPC adopt the general principle that adopted persons are
placed exclusively in their adopting families for inheritance purposes. But, the UPC anticipated
cases like Donnelly by providing the exception for stepparent adoptions. Thus, under the abovediscussed exception, the grandchild would have inherited half of her biological grandfather’s
estate and would not have been forced to litigate to gain her inheritance.
SYLLABUS PROBLEMS (a-c):
a) F and M, a married couple with one child, X, were killed in an airplane crash. After the deaths of F
and M, M’s sister, A, and A’s husband, B, adopted X. F’s father, PGF, a widower, then died
intestate. The Rest. 3d of Property provides that unless precluded by statutory language, X should
be treated as PGF’s grandchild (F’s child). Would the Rest. Solution be possible under the UPC
§2-114?
 Answer: The general rule is that an adopted child is the child of the adopting parents, not the
biological parents. Based on this situation, the facts do not fit the exception and thus X cannot
inherit from the paternal grandfather. Although X probably should be allowed inherit, the
statutory language of §2-114 does not allow it.
b) F and M, a married couple with a 4-year-old child, X, were involved in an automobile accident
that killed F and severely injured M. M’s injuries were permanent and caused her to be bedridden
and under constant care for the rest of her life. Neither M’s parents nor F’s father (F’s mother had
died before the accident) nor any other relative was in a position to take custody of X. M
consented to X being adopted by her close friends, A and B, a married couple approximately of
the same ages as M. After the adoption became final, F’s father and M’s parents continued to have
close contact with X, often visiting each other and sharing some holidays together. A and B often
brought X to M’s bedside for visits. F’s father, PGF, a widower, then died intestate. The
20
3.
4.
5.
Restatement 3d of Property provides, that unless precluded by clear statutory language, X should
be treated as PGF’s grandchild (F’s child). It also provides that the result would e the same if both
F and M were killed in the accident, their wills appointed A and B the guardians of the person of
X, and A and B subsequently successfully petitioned to adopt X. Would the Restatement’s
solution be possible under the revised UPC §2-114?
 Answer: The general rule applies again here to disallow X from inheriting from the
grandfather. What criteria do you use to show that X is severed from his natural family? A
CA statute does not try to distinguish between whether the parent and child maintain a
relationship. Rather, if a child is adopted after the death of either parent, the child continues
to have inheritance rights via biological parents and ancestors.
c) M and F, a married couple, had two children, X and Y. M died, and F married M’s sister, A. A
adopted Y because Y was still a minor, but A did not adopt X because X was a self-supporting
adult living in another city. M’s mother, MGM died intestate. Who are MGM’s heirs if A survived
MGM? If A predeceased MGM? See UPC §2-113 and 2-114.
 Answer:
*If A survived MGM: A takes half of the estate and under §2-114’s language “by from or
through.” Y and X represent M and inherit through M to take the other half of the estate.
*If A predeceased MGM: If A died, 2-114(b) would apply. Y is treated as a child of M and a
child of A. Thus, it’s almost as if there are three grandchildren (Y twice and X) because Y
takes from A and from M. But, §2-113 limits this Y’s portion because it states that if an
individual is related in two different capacities, he takes only the larger of the two portions
rather than taking twice.
CASEBOOK PROBLEM, pg. 124: A and B were married and had two children, X and Y. A and B got
divorced and B was awarded custody of X and Y. B married C. A married D. B and C had a child, Z. A
and D had a child, V.
a) C died intestate, survived by A, B, D, V, X, Y, and Z. Under the UPC §§2-102. –103, and –114
(1990), who are C’s heirs and what shares do they take?
 Answer: B is a surviving spouse (§2-102) and Z is a lineal descendent for intestacy purposes
(§2-103(1)).
b) X died intestate, survived by V, Y, and Z. A, B, C, and D predeceased X. Under UPC §§2-103 and
–107 (1990), who are X’s heirs?
 Answer: X died without a surviving spouse and with no children. Thus, the only remaining
candidates are Y, V, and Z. Z and V are half blood relatives because X only shares one parent
with them. The code says them is no distinction between full and half blood relatives. So, Y,
V, and Z would split equally,
c) How, if at all, would your answer in Problem 1 differ if C had adopted X and Y?
 Answer: [§2-114(b)] Under these circumstances, V loses out because X’s relationship through
A and along down is severed.
NONMARITAL CHILDREN UNDER INTESTATE SUCCESSION STATUTES (father and
child)ABSENT A LEGITIMATE STATE INTEREST, A STATE MAY NOT TOTALLY
STATUTORILY DISINHERIT ILLEGITIMATE CHILDREN WHOSE FATHERS DIE
INTESTATE: Trimble v. Gordon (1977): An Illinois statute had two requirements for inheritance.
First, the father had to acknowledge the child as his own. Second, the parents had to marry after the
child was born. In addition to the unclear “acknowledge” standard, the issue was whether such a statute
discriminated against nonmarital children. The Supreme Court held the statute unconstitutional under
the EP clause of the 14th Amendment because none of the state’s interests justified the statutory
discrimination against nonmarital children. Specifically, the Court held that the state cannot influence
the conduct of parents by burdening their child.
NONMARITAL CHILDREN UNDER INTESTATE SUCCESSION STATUTES (Permissible
disparate treatment) ONLY LEGITIMATE STATE INTERESTS MAY BE EFFECTED BY
STATUTES THAT LIMIT THE RIGHTS OF NONMARITAL CHILDREN AND, IN THE
PROCESS, DISCRIMINATE AGAINST THOSE CHILDREN: Lalli v. Lalli (1978): The court
considered a NY statute that precluded a nonmarital child from inheriting from an intestate father
unless the father had married the mother or his paternity had been established in a proceeding during
21
his life. The Court concluded that the paternity adjudication requirement was tied to the state interest in
an orderly process for wealth succession and found that the statute did not violate the EP clause.
 Prof: This is a bad result because the father held himself out “openly and notoriously” as the fatehr
to the two children throughout his life.
 UPC: The UPC draws no distinctions between out of wedlock and in wedlock. The UPC merely
requires a showing of paternity (i.e. the state or condition of being a father, especially a biological
one), which can be established before or after the father’s death. Thus, because the father held
himself out to be the father, the UPC would treat the kids as the intestate’s children.
Concept (c): Rules of Construction for Class Gifts – [UPC §§2-701, -705, 8-101(b)(5); Pre-1990
UPC §§2-603, -611]

Rules of construction
come up most
frequently in order to
determine whether
adopted or nonmarital
children are included in
language of class gifts.
Background: The focus now shifts from intestacy to the construction and interpretation of private
documents in which there are many ambiguities. To aid in the interpretation of these documents, the
law has adopted rules of construction to provide a presumptive meaning to ambiguous terms. These
rules are not rules of law. Rules of construction are rebuttable presumptions that apply only if there is
no showing of contrary intent (i.e. these rules yield to contrary intet). Rules of construction are
established both by statutes and by judge-made law and there is a difference between rules of
construction established by case law and those established by statute:
 Case law: Rules of construction established by judge-made law almost always yield to a contrary
intention in the presence of extrinsic evidence.
 Statutory rules of construction: Statutes, however, often state that a rule of construction yields to a
contrary intention only if expressed in a document. This is an enormous difference from case law
because plenty of evidence could exist to contrary intent, but unless a contrary intent is expressed
in a document, extrinsic evidence is unhelpful no matter how plentiful.
1.
Adopted Children: [Generally] Wills, trusts, and other donative documents commonly include gifts to
classes of persons, such as “to A’s children” or “to A’s descendents.” Whether adopted children are
included within these classes gifts depends in the first instance upon the intention of the donor. The
drafter should expressly address this matter in the instrument. If the instrument fails to indicate the
donor’s intent one way or the other, the law must provide an answer. Intestacy statutes aren’t
controlling in these circumstances, but they are often used as guides to what the donor likely intended
and to public policy.
 Common Law “stranger to the adoption rule”: The donor is presumed not to have intended to
include adopted children in the donative document. The rationale behind the rule is that the
adopting parent should not be permitted to determine the beneficiaries of a gift made by a person
who did not participate in the adoption. Note, however, that if the circumstances indicate that the
donor would likely have intended to include the adopted person, then the presumption is rebutted.
 UPC §2-705: This statute abrogates the “stranger to the adoption rule” –
§a – An adopted child is treated as a member of the class if the donor of the class gift adotped that
child.
§c – If someone other than the donor adopted the child, that child is entitled to inherit if the
adopted child (1) lived while a minor, either before or after the adoption as (2) a “regular member
of the household of the adopting parent.”
2.
Children of Parents Not Married to Each Other: [Traditional rule] Traditionally, children of unmarried
parents are presumptively excluded from membership under class-gift terminology.
 Restatement 2d of Property/Hoffman: [Modern rule] Hoffman and the Restatement promulgate a
rule of construction stating that nonmarital children are presumptively included in class gift
terminology.
 Children of unmarried parents presumptively included under an agency concept: [UPC §2-705(b)]
This competing approach utilizes an agency concept for documents of a transferor who is not the
parent of the nonmarital child. Under this view, §2-705(b) states that in construing a dispositive
provision by a transferor who is not the natural parent, an individual born to the natural parent is
not considered the child of that parent unless the individual lived while a minor as a regular
member of that natural parent or of that natural parent’s parent, brother, sister, spouse, or SS.
22
Essentially, if the adopted children are treated as part of the family, then they are also treated as
part of the trust or other donative instrument.
 Note: The design of the test is to be based on objective facts as opposed to subjective facts.
Despite its objective foundation, there is some “wiggle room” to evaluate the facts
subjectively. Thus, this requirement becomes almost subjective because either the trial judge
or the jury can evaluate the extent to which the children lived with or were treated like the
children of the parent/surviving spouse.
Application (c):
1.
2.
ADOPTED CHILDREN (non-UPC decision)ABSENT A CONTRARY LEGISLATIVE INTENT,
A STATUTE ABROGATING THE “STRANGER TO THE ADOPTION RULE” APPLIES
PROSPECTIVELY ONLY: Ohio Citizens Bank v. Mills (1989) – Charles had a grandson named
Robert. Robert adopted the two children from his wife’s previous marriage after she died. Charles had
a trust in which the income went to his daughter for life, but the daughter was given the power to
extend the trust to the lifetime of the her children, i.e. Robert, and then to the “living children of each
deceased grandchild.” The issue was whether the two children Robert adopted fit the terms of the trust.
At the time the trust was created in 1944, a statute was in place that was interpreted to include a
stranger to the adoption doctrine (b/c a statute in derogation of the CL is construed narrowly). In 1977,
however, that statute was repealed. In determining which statute applied, the court held that the 1944
statute applied because it was consistent with the grantor’s intent and the 1977 statute was applied
prospectively only. That intent was to include only natural children in the distribution of assets of his
trust estate and therefore the adopted children of Robert cannot inherit under the trust.
 UPC: Had the 1990 UPC governed in Mills, the outcome would have been different. §8-101(b)(5)
provides that “any rule of construction or presumption provided in the Code applies to instruments
executed … before the Code’s effective date unless there is a clear indication of a contrary intent.”
Thus, §2-705 (rules of construction), which abrogates the stranger to the adoption doctrine rule for
all governing instruments, not merely for wills, applies to documents executed before the Code’s
effective date. Thus, if the children in Mills had lived with Robert as minors as regular members of
his household, they would have been included in the class gift and each would have taken a 1/3
share.
 Prof 1: When you codify a rule of construction, is it permissible to have that new rule apply to
pre-effective date doctrines? The argument that it should not apply is that the document was
executed at a time of different law and people should have a right to rely on the law that was
in effect when the document was executed. On the other hand, the reasonably intelligent
donor likely intended that class gift terminology should be interpreted in light of modern
evolution of the law. Another argument is that if you don’t apply it retroactively, it will take
decades for the new rule to have any affect or “bite.”
 Prof 2: [See also note 4, pg. 155] When statutes are overturned or repealed, ask whether there
is clear enough language by the legislature to indicate intent to have it apply to pre-effective
date doctrine. Note that when you repeal a statute and the new one does not apply to preeffective date doctrines, the repealed statute’s force continues to apply to the time period
during which it was enacted.
CHILDREN OF PARENTS NOT MARRIED TO EACH OTHER (nonmarital
children)NONMARITAL CHILDREN ARE PRESUMPTIVELY INCLUDED IN CLASS GIFTS:
Will of Hoffman (1976) – Hoffman, the testator, died in 1951. Her will established a trust for the
benefit of her two cousins and provided that when the first of the two should die, his one-half share of
the income should be paid for the remainder of the trust term “to his issue.” One cousin was still living
at the time of litigation, and the other cousin died in 1965 leaving 2 children, a daughter and a son. The
son was named Stephen and he died in 1972 leaving two non-marital children. The issue was what
whether Stephen’s ½ share of the income would be distributed to the nonmarital children. The court
was faced with determining the intention of the testator at the time she executed the will by using “to
his issue.” The court, in resolving the issue, held that nonmarital children are presumptively included
in gifts because social attitudes have changed. The court reasoned that the old rule of construction
presumptively excluding nonmarital children from class gifts did not reflect society’s changing
attitudes and views to adopted children.
23

Prof: Today, documents will define whether adopted children or non-marital children are included
in class gifts. It is borderline malpractice to fail to adequately define terms. Therefore, rules of
construction only apply when terms are not adequately defined and litigation arises as a result.
Chapter 4: Execution of Wills
Concept (a): Introduction –

Background: Intestacy is a default mechanism used in place of a valid will. When a will is in place,
however, intestacy is inoperative and cannot be used to destroy the testator’s intent. The right to make
a will is wholly statutory and there is no CL right to make a will. Will statutes are derived from either
the English Statute of Wills (1540) or the Statute of Frauds (1676). Because of the strict requirements
of the SOF and Wills Act, the requirements for a valid will have been substantially relaxed (see UPC
§2-503). Generally, statutes require that for a decedent-testator to leave a valid will, he must (1) leave
the will in writing; (2) sign it; (3) and have the will attested to by credible witnesses. Adhering to these
three requirements serves several functions:
1. Evidentiary function: We require solid evidence of the existence and content of the decedent’s
directions. Thus, a will executed in accordance with the formalities provides pretty good evidence
that the will is what the testator really intended.
2. Cautionary function: some indication that the directions were not arrived at casually, i.e. the
formalities emphasize the importance of the document and require that the testator is serious.
3. Channeling function: These requirements try to make the probate process routine by having
everyone adhere to the same requirements.
4. Protective function: There must be reason to think that the directions were the product of the
decedent’s free choice and that the decedent had the mental capacity to comprehend what property
was owned and who were the so-called natural objects of the decedent’s bounty at the time the
dispository decisions were made. This is designed to protect the testator against fraud or undue
influence.
 Note: These formalities really don’t help much in the realm of wrongdoing.
Concept (b): Formalities of Execution: The Proponent’s Case – [1990 UPC §§2-502, -503, -506;
Pre-1990 UPC §§2-502, -506]
1.
Attested Wills: [§2-502] An attested will is one that was executed in accordance with the requisite
formalities. Recall that a will generally requires:
a) The writing requirement: All statutes, including the pre-1990 UPC and 1990 UPC require a will
to be in “writing.” A “writing” must be some fairly permanent record. Thus, a will scratched onto
a cake of ice or molded in the sand will probably not suffice. Although a video is fairly permanent,
most jurisdictions have disallowed the use of videotapes to satisfy the writing requirement.
Videotapes have been admitted into evidence, however, for the purpose of proving a testator’s
testamentary capacity.
b) The signature requirement: [In re Estate of McKellar] All statutes, including §2-502 of the pre1990 and 1990 UPC require the testator to sign the will. The UPC §2-502 allows a third party can
sign the testator’s name if it is done in the presence and at the direction of the testator. A further
requirement, sometimes imposed by non-UPC statutes, is that persons who sign for testators must
also sign their own names and sometimes give their addresses. Potential problems/solutions for the
signature requirement:
i.
Placement: The UPC and the Wills Act (more formalities than SOF) requires the testator
to sign “at the foot or the end” of the will.
ii.
Timing: Although statutes do not impose this, most courts require that the testator must
sign the will before the witnesses sign. The Wills Act further imposes the requirement
that the signature be “made or acknowledged by the testator in the presence of” the
witnesses.
iii.
Crossed wills: Sometimes the lawyer setting up the will for a family “crosses” the wills
such that the husband signs the wife’s while the wife signs the husband’s. In this case,
most courts find the wills invalid.
iv.
The views/solutions: Potential “harmless error rules”…
24
UPC §2-503: “Dispensing Power Approach” – Under this provision, a court has the
power to dispense with strict compliance with the formalities in cases in which it can
be established by “clear and convincing evidence” that the underlying purpose of the
statutory formalities have been met.
2. Restatement 2d. of Property: “Substantial Compliance Doctrine” – Under this
approach, courts can accept substantial compliance with the formalities when strict
compliance is absent. This doctrine is often applied restrictively.
c) The Attestation requirement: The attestation requirement generally requires (1) witnesses to be
“in the presence of” the testator when he signs the will and (2) credible/competent witnesses:
1. “In the presence of”: Non-UPC statutes commonly prescribe that the witnesses must sign the
will “in the presence of” the testator. Statutes modeled on the Wills Act commonly impose
additional requirements such as the testator must sign “in the presence of” the witnesses and
the witnesses must sign “in the presence of” each other. A number of tests have been
developed to determine what “presence” is:
i.
Line of Vision Test: This test, as the majority view, requires that the witness must
have been within the testator’s “line of vision.” This test requires, at a minimum, that
the testator, without changing his position, could have seen the will being attested,
but it is not necessary that he actually saw the attestation.
 Limitation: Some courts have held that presence means “within view” and
therefore witnesses with their backs turned to the testator failed this requirement.
Similarly, courts hold that a witness on the telephone across town signing a will
is insufficient.
ii.
Conscious Presence Test: A minority of courts have interpreted “presence” more
liberally by recognizing that a person can sense the presence of another without
seeing him or her. Thus, if the witnesses are so near at hand that they are within the
range of any of the testator’s senses, so that he knows what is going on, the presence
requirement is met.
iii.
UPC §2-502: The UPC disposes of the need for a testator to sign in the “presence” of
the witnesses. Rather, the witnesses can either witness the testator sign the will or
witness the testator acknowledge his signature. The only place the “presence”
requirement is retained is where testators direct someone else to sign for them, in
which case that 3rd party must do so “in the testator’s conscious presence.”
 Note: When the witnesses choose to witness the signature, the UPC is
considered to be liberal because it allows a court to interpret the witness
requirement in a number of ways.
2. Competency/credibility of witnesses: The English SOF required witnesses to be “credible.”
Today most UPC states require a witness to be either “credible” or “competent.” Regardless,
the issue is always how to define “credible/competent.” Views:
i.
Common Law: Early, at CL, a witness who was a devisee under the will was
disqualified as a witness as presumable interested in sustaining the will. Thus, a will
failed if one of the necessary attesting witnesses was also a devisee.
ii.
Purging Statutes: In a shift toward validity, a purging statute held that a disposition
to an attesting witness was void, but the witness was permitted to execute the will.
Thus, the theory was the elimination of the witness’s interest saved the will as
“credible.”
iii.
1990 UPC §2-505: Interested witnesses are not disqualified as attesting witnesses
and they do not forfeit any portion of their devises.
d) Self-Proved Wills: [§2-504] A self-proved will is a will for which the testator and the witnesses
have executed an affidavit before a notary public or similar officer detailing the procedures
followed in the execution of the testator’s will. The UPC conclusively presumes that all the
signature requirements imposed by its wills statute have been met and create a rebuttable
presumption that all other requirements for a valid will have been met.
 Problem: On some occasions, testators or witnesses have signed only the self-proving
affidavits and not the wills themselves. Most courts uphold such wills on the basis of the selfproving affidavits. Under §2-504(c), a signature affixed to a self-proving affidavit will be
considered to be a signature affixed to the will.
1.
25
e)
2.
Statutory Wills: Statutory wills offer a state sponsored pattern or patterns of property distribution
that differs from the state directed pattern of property distribution under the intestacy laws. There
are generally two types:
i.
CA Statutory Will: The CA statutory will is a state sponsored and distributed will form in
which the testator simply fills in the blanks.
ii.
Uniform Statutory Will Act: Rather than offering a will form, this Act follows
“incorporation by reference.” Here, the testator executes a will in which he adopts, i.e.
incorporates by reference, the statutory pattern of distribution for all or a specified
portion of his estate.
Unattested Wills: [§2-502(b-c), -503; Pre 1990 §2-503] Unattested wills, i.e. those not in compliance
with the statutory formalities, fall into two categories:
a) Holographic wills: A holographic will is one that is written entirely or materially in the
handwriting of the testator. A holographic need only be signed by the testator, and does not have
to be witnessed. A few states, however, contain a provision concerning the number of witnesses
needed to prove the testator’s handwriting. A number of jurisdictions also require the will to be
dated and a few require the testator’s signature to be at the end of the document. There are usually
three versions of holographic will statutes:
i.
First generation holographic will statute: [Estate of Black] These types of statutes
require the will to be entirely in writing, dated, and signed by the hand of the testator. To
be upheld, the will is subject to no other form and need not be witnessed. As an
extremely strict statute, courts sometimes try to get around it when there is printed
material on the paper from, say, a piece of stationary. Rather than invalidating the entire
will, courts utilize an intent/surplus theory whereby if the printed matter was not intended
to be part of the will or is merely surplus, i.e. immaterial, language, then it can be
ignored.
ii.
Second generation holographic will statute: [Pre-1990 UPC §2-503Estate of Johnson]
This statute retains the signature requirement, deleted the requirement that the will be
dated, and replaced the requirement that the will be “entirely” in the handwriting of the
testator with the requirement that the “material provisions” be in the testator’s
handwriting.
iii.
Third generation holographic will statute: [1990 UPC §2-502] Under this statute, only the
“material portions of the document” need be in the testator’s handwriting and portions of
the document that are not in the testator’s handwriting, along with other extrinsic
evidence, can be used to establish testamentary intent.
b) Nuncupative wills: A substantial minority of states, by statute, allows personal property (often
with a maximum limit on value), and in a few instances real property, to pass under nuncupative
or oral wills. Soldiers, those in active military service, and those who are in their “last illness” are
generally allowed to make wills in this manner if: (1) the testator is dying and knows it; (2)
expresses orally the intent to make an oral will; and (3) he calls upon “competent” witnesses,
usually at least two, to witness the spoken words as his last will and testament.
Application (b):
1.
THE SIGNATURE REQUIREMENT (attested wills)IN SOME COURTS, STRICT
ADHERENCE TO THE WILLS FORMALITIES IS NECESSARY IN ORDER TO AVOID GIVING
AFFECT TO DRAFTS: In re Estate of McKellar – The testator made a will in which her name only
appeared on the top of the first page. She execute the will in the hospital because she was nervous
about death, but she survived for 2 years after the hospital. She wrote the will out on five pages of
notebook paper and she got three witnesses. It was subsequently challenged. The three witnesses
testified. The first witness, Watkins, said that he had no knowledge of the document and just signed it.
The second witness, Brewer, knew of the contents of the document. The third witness, Jay, was told
that the document was a will. The statute in place, similar to an SOF type statute, did not specify a
place for the testator to sign but required “moreover…it shall be attested by two (2) or more credible
witnesses in the presence of the testator or testatrix.” The court invalidated the will because the
witnesses did not sign the document on each page. They further stated that the testator did not declare
to the witnesses that this was her signature.
26

2.
3.
4.
Prof: It looks like at least two people knew that they were signing a will. So, what is the problem
with these witnesses? The statute only requires two witnesses. Also, the statute does NOT require
that the witnesses know what the contents of the will are.
 2-502 analysis: This would likely satisfy §2-502(a)(3) because the witnesses knew that it was her
will. The problem becomes whether Greta actually signed the will because there is no freestanding
signature in the will. Although the court accepted this as a signature, they were wrong because
there was no place on the document where she wrote her name out other than as part of a sentence.
 Harmless error? In the abstract, it does appear that this document was intended to be her will
because she sealed it in an envelope and gave custody over it to Watkins. This demonstrates
clear action on the part of Greta to show she intended this to be her will. This should be
additional evidence to show she adopted it and should therefore be given affect as her will.
THE SIGNATURE REQUIREMENT (attested wills)Problems, pg. 189 –
a) No, not under even under a harmless rule because the letter, although signed, is not intended to be
a will. So, you can't say by clear and convincing evidence that the decedent intended the letter to
be his or her will. The lawyer’s draft also cannot be adopted as a will because the client never saw
the draft or signed it.
 Prof: People change their minds too much to allow such a will to stand. The courts are simply
not prepared to go this far in terms of leniency. The testator would have to look at it, read it
over, and then express his satisfaction.
b) Guy was writing out his signature when he died…This was held an invalid signature because the
decedent intended to write out his full name, but failed to do so. This signature would, however,
be acceptable under a harmless error rule because it is clear that he intended to adopt this as his
will. Although the witnesses had not signed, they were prepared to do so had Dwight not died.
THE ATTESTATION REQUIREMENTIN A JURISDICTION REQUIRING STRICT
COMPLIANCE, A WILL THAT IS WITNESSED, BUT NOT SIGNED BY THOSE WITNESSES,
IS INVALID: In re Estate of Peters – A couple was married and the wife had an adult son from the
prior marriage. The husband had a stroke and the couple got worried. While he was in the hospital, W
got her cousin to prepare two wills. H’s will said everything to W if she survived him and if not, to the
son. W’s said the same thing, except the other way around. H tried to execute the will in the hospital.
He lived 15 months after the stroke. W, however, predeceased H by 125 hours. Conrad did survive W
by more than 120 hours and is therefore treated as a survivor. So, the property passed to H. Then, H
died and his will purported to give everything to the son. But, the will was found invalid, because
although relatives of H were witnesses to the hospital will, they did not sign the will b/c they did not
know the law and thought that by signing, they would invalidate the will because they were related to
the beneficiary.
 Prof: Interestingly, the trial court upheld the will and said that there really wasn’t anything wrong
because they got to hear from all of the witnesses. The SC, however, required strict compliance.
Also, this case preceded the adoption of a harmless error rule in NJ.
 Note: Whenever you probate a will, you notify those who would take by intestacy. Here, Conrad
and Marie had no relatives so the Attorney General was notified and the state of NJ was left to
challenge the will.
THE ATTESTATION REQUIREMENTProblems, pg. 201 –
a) Handwritten but unsigned draft of will and a signed typewritten copy of the handwritten draft.
Court either document be probated under the substantial compliance doctrine?
 Substantial Compliance Doctrine – This generally requires substantial compliance with each
one of the statutory requirements. Therefore, this would not give effect to either because the
typewritten has no witnesses and the unsigned draft is not signed. You could try to argue that
the substantial compliance does not refer to each requirement, it is a more general requirement
that requires substantial compliance with the formalities as a whole.
 Harmless Error Rule – You must prove that the decedent, by clear and convincing evidence
(you can use extrinsic evidence), intended this document to be his or her will. §2-503 of the
UPC adopts this. This rule involves putting the argument to the court in a way that they can
accept it more readily, i.e. you’re not really asking them to “excuse” compliance. The wills
would probably be given effect under the HE rule because there is evidence that the decedent
intended to adopt this will, i.e. the handwritten draft.
27
b) G gave will to nephew and asked him to get it witnessed. Nephew then took the will to two
neighbors, one after the other who signed as witnesses. The nephew then returned the will to G.
Under substantial compliance doctrine, what result? [Remember that witnesses must sign in the
presence of the testator.]
 Substantial Compliance  You could argue that the testator designated the nephew as an
agent. Therefore, when the witness signed in front of the “agent,” he really signed in front of
the testator. This shifts the focus away from the central question of “did the decedent inted
this document to be her will”? This argument probably would not work.
c) Suppose nephew took it to only one neighbor, who signed as a witness.
 This case is like Peters. You probably don’t have much of chance under SC doctrine, but you
do have a good chance under Harmless Error rule.
Concept (c): Grounds of Contest: The Contestant’s Case –

Generally: The proponent has the burden of proof to show that a will is valid and properly executed.
To do so, the proponent can call witnesses, etc. and if proper execution is shown, then the presumption
may shift the burden to the contestant. Under UPC §3-407, the contestant has the burden of proof to
show undue influence, fraud, lack of testamentary capacity, and lack of testamentary intent. To protect
the validity of a will, the testator, or testator’s lawyer, may insert a “no contest” clause, to the effect
that anyone who challenges the validity of the will is excluded from it. A “no contest” clause can be
ignored by potential beneficiary only if he has “probable cause” to challenge the will, i.e. meritorious
evidence supporting a challenge. A will may be challenged on the following grounds:
1. Lack of Testamentary Intent: [UPC §2-502(c)] A testator must have the requisite intent to make
a will in order for it to be valid. A testator cannot simply create a sham will. The UPC states,
“Intent that the document constitute the testator’s will can be established by extrinsic evidence,
including, for holographic wills, portions of the document that are not in the testator’s
handwriting.”
 “Plain Meaning” Majority Rule: [In re Kauffman’s Estate] If the nature of the document is
ambiguous, extrinsic evidence may be used to clarify the meaning. If the document is clear on
its face, then extrinsic evidence may not be used to contradict its plain meaning.
 Exception: [Fleming v. Morrison] Extrinsic evidence may be allowed to prove by “clear
and convincing evidence” that a clear and unambiguous will does not reflect testamentary
intent when the circumstances of the will’s execution are suspicious. Often times a
decision to allow extrinsic evidence will be remedy driven, i.e. the process of looking to
the consequences of validating/invalidating a will.
2.
Lack of Testamentary Capacity: [1990 and pre-1990 §2-501]
a) Age Requirement: [§2-501] The UPC sets the age of 18 as the minimum age necessary to
execute a will. This requirement may prove over/under inclusive as the will of a 54-year-old
with the mental capacity of a child, may be nonetheless upheld under this requirement.
b) Mental Requirement: [§2-501] In addition to requiring a testator to be 18, §2-501 also requires
that they be “of sound mind.”
1. “Of sound mind” Test:
i.
The nature and extent of his property
ii.
Who the natural objects of his bounty are
iii.
What the document is doing with the property
iv.
And he must be able to understand each of these in relation to one another.
 Note: [Fletcher v. DeLoach] The type of understanding required is a
“general” understanding. No one is expect to know exactly what they have.
Thus, for the “bounty” requirement, we generally require that a testator
understand how many children he has.
2. Capacity intervals: It is possible for a testator to go in and out of mental capacity. As long
as the testator executed during a period of mental capacity, then the mental requirement is
satisfied. Tests:
28
i.
ii.
Lucid Interval: [Restatement 2d of Property] Absent a contrary statute, if a
mentally incompetent testator executed his or her will during a lucid interval,
then the will is valid.
Insane Delusion: An insane delusion is a belief to which the testator adheres
against all evidence and reason. The subject matter of the delusion must have no
foundation in fact, and must spring from a diseased condition of mind. For an
insane delusion to affect the validity of a will, the evidence must establish that
the will was the product of that delusion and that the testator devised his
property in a way which, but for the delusion, he would not have done.
3.
Undue Influence/Coercion: A will is invalid to the extent that it is procured by undue influence or
coercion. Influence is said to be “undue” if it overcomes the free agency of the testator, substituting the
perpetrator’s volition for that of the testator’s. Mere advice, persuasion, or kindness are said not to
constitute undue influence. Direct evidence is rarely available on this issue and therefore, the parties
must rely on circumstantial evidence to shift the burden of proof (usually established by a
preponderance of the evidence). Generally, undue influence will invalidate all or a portion of the will:
a) Proving undue influence generally: The burden of proof starts with the contestant. In order to shift
the burden, three elements must be proven:
i.
Testator’s susceptibility: The contestant generally must show that the testator’s condition
or state of mind made the testator susceptible to undue influence; the more feeble minded
the testator, the easier will be proof of this element.
ii.
Influencer’s opportunity: There must be proof that the influencer had the opportunity to
exercise control over the testator, with special scrutiny if the alleged influence came from
the testator’s attorney or other advisor.
iii.
Influencer’s disposition; motive: The alleged influencer must have been disposed to
exercise control over the testator.
b) Presumption of undue influence: [Ramsey v. Taylor] The burden of proof will automatically shift
to the proponent if two things are shown:
i.
Confidential Relationship: Demonstrating the presence of a confidential relationship such
as a “status” confidential relationship (i.e. doctor/patient, attorney/client, other fiduciary),
reliance relationship (i.e. a relationship in which the testator becomes reliant upon the
individual for handling daily and financial affairs), and a subservience relationship (i.e.
between testator and hired caretaker).
+
ii.
Suspicious Circumstances: Demonstrating evidence that the individual in the confidential
relationship with the testator abused that relationship. Generally, this is satisfied by a
testamentary disposition to (1) a non-family member like the other individual involved in
the confidential relationship, or (2) the disinheriting of close family members under odd
circumstances.
4.
Fraud/forgery: Fraud is distinguishable from undue influence in that fraud involves an element of
deceit. Generally the remedy for such fraud is invalidation of the will. There are two types of fraud:
a) Fraud in the Execution: The testator is deceived as to the character or contents of the document he
is signing (e.g. a husband types a will in place of a note that his wife had signed).
b) Fraud in the Inducement: The testator makes the will or provision relying upon a false
representation of a material fact made to him by one who knows it to be false.
 Limitation: Innocent misrepresentations will not invalidate a will.
5.
Constructive Trust and Other Remedies: The general rule is that persons deprived of benefit under a
will because a fraud or duress can obtain relief only by invalidation of a will. But…
a) Partial invalidation: When undue influence or fraud only affects a part of a will, then only the
affected part will be invalidated.
b) Constructive trust: As a matter of equity, a court may impose a constructive trust against the
wrongdoer, or anyone else who profited from the wrongdoing even if innocent, in favor of the
person who otherwise would have benefited. In doing so, the equity court treats D as though he
were a trustee of land for the benefit of P. Although there is clearly no express trust, the equity
29
judge is giving relief to prevent unjust enrichment. This is not a money judgment rather it is a
judgment for a specific restitution.
 Limitation: Generally, such relief is available to protect “disappointed hopes and unrealized
hopes” in a property interest.
Application (c):
1.
2.
3.
4.
5.
6.
Testamentary intentIn re Kauffman’s Estate
Testamentary intentFleming v. Morrison
Testamentary capacityFletcher v. DeLoach
Insane DelusionsProblems, pg. 225
Undue InfluenceRamsey v. Taylor (supplementary materials)
Constructive TrustPope v. Garrett
Concept (d): Unattested Documents and Events – Incorporation by Reference, Independent
Significance, and Related Doctrines – [1990 UPC §§2-503, -510, -512, -513,-602; Pre-1990 §§2510, -512, -513, -604].

Generally: When can other unattested documents, outside of those executed directly by the requisite
formalities, be included as part of a testator’s will?
1. Integration: [papers present at execution] When a testator seeks to execute a multiple page will,
separate writings can be effective as parts of the single will under the SOF if some proof of the
testator’s intention is present to demonstrate that the parts should be considered together. Often,
any evidence will suffice so long as the court is satisfied that, at the time of execution, the separate
papers were present and regarded by the testator as parts of the will.
2. Incorporation by Reference: [papers not present, but in existence, at execution] In most
jurisdictions, unattested papers, i.e. papers that weren’t present when the will was executed, can be
regarded as part of the will by incorporation –
a) Common Law: At CL, courts generally require that the will refer to the extrinsic writing as
one in existence. The essential elements are:
1. The will must refer to the paper to be incorporated as…
i.
Being in existence at the time of the execution of the will
ii.
In such a way as to reasonably identify such paper in the will, and
iii.
It must show the testator’s intention to incorporate such instrument in his will
2. The document must in fact be in existence at the time (cannot incorporate a future
document) of the execution of the will and must be shown to be the instrument referred
to.
b) UPC §2-510: The UPC essentially codifies common law, but does not require the will to
reference the document as being in existence. Although the statute does not require reference
to the document, the document must nonetheless (1) be in existence at the time the will was
executed; (2) the language of the will must manifest an intent to incorporate; and (3) the will
must describe the writing sufficiently so that it can be identified.
3. Acts Having Independent Significance: [§2-512] All jurisdictions give effect to devises that
identify the property or the devise by reference to acts and facts that have independent
significance. Thus, the meaning of a testator’s will can be affected by events subsequent to its
execution, which generally would happen anyway. These types of acts can show up in either a
residuary clause or language creating a class gift. Examples:
a) “remainder of the property to the winner of the US Open”
b) “to the residuary legatees of my son’s estate”
c) “whoever shall take care of me with proper medical treatment shall receive my property”
 Limitation: The acts must have significance apart from their effect upon the dispositions
in the will.
4. Reference to Unattested Writing: [§2-513] A testator may dispose of tangible personal property
without meeting the requirements of the doctrines of incorporation by reference or independent
significance by utilizing a handwritten or signed document that states an intent to dispose of
certain property using an unattested writing. This handwritten/signed document may be executed
before or after the will was written and it can be modified at any time.
30
5.
Republication by Codicil: Re-execute the will.
Application (d):
1.
Simon v. Grayson
Chapter 5: Revocation of Wills
General Concept: Wills vs. Revocable Inter Vivos Trust –

Generally: A will is said to be “ambulatory,” meaning that it does not take effect and does not transfer
property to devisees until the testator dies. Another aspect of its ambulatory nature is that a will is
revocable throughout the testator’s lifetime. The nature of a will is in stark contrast to that of a
revocable inter vivos trust: [“RIT” = Revocable Inter Vivos Trust]
1. Nature of Revocation for Will/RIT: The CL states that the trust is not revocable unless it is
expressly made revocable in the trust, i.e. a provision is added. Most people do this because the
only reason to create an irrevocable trust is for tax purposes. CA changed the CL by statute by
saying that every trust is revocable unless stated otherwise in the trust.
2. Transferring property via Will/RIT: The will transfers property at death. In contrast, the
revocable inter vivos trust transfers a property interest to the beneficiaries of the trust at the time
of its creation. The revocable inter vivos trust transfers a remainder interest to some individual, X,
(subject to divestment) while the will does not transfer a present interest at its execution.
3. Revocation a Will/RIT: Assuming the trust is revocable, it may be revoked by any manifestation
of intent by G to revoke. But to revoke a will, G must satisfy a revocation statute. For example, the
UPC § 2-507 requires a revocation clause in the newest will to get rid of the older wills.
Concept (a): Revocation by Subsequent Instrument – [§§1-201(56), 2-507(a)(1), (b-d); Pre-1990
§2-507(a)]

Background: The UPC and all non-UPC revocation statutes authorize will revocation by valid
execution of a subsequent instrument expressly revoking the previous will.
 General Standard: [UPC §2-501/Non-UPC] A subsequent instrument can be another will,
codicil, or any other instrument executed with the formalities of a will. This may occur:
1. Express Revocation Clause: The subsequent instrument may contain a revocation clause like
“this will revokes all prior wills and codicils executed by me,” or the like. Generally, a lawyer
should draft such a clause, as boilerplate revocation clauses may sometimes leave the door
open to future litigation.
2. “Inconsistent” Subsequent Will: [Gilbert v. Gilbert] In the absence of an express revocation, a
prior will is revoked by an “inconsistent” subsequent will. Revocation by inconsistency, or
implied revocation, as it is sometimes called, typically occurs when a testator executes a will
without the aid of an attorney and fails to include an express revocation provision. For
example, when a testator dies with two or more wills and the latest one fails to expressly
revoke the earlier one, litigation may arise about whether the testator intended the subsequent
will to replace the prior wills in whole or in part or merely to supplement the prior wills.
 Note: UPC §2-507(b-d) makes it a rebuttabble presumption that the testator intended to
revoke the prior will when the subsequent will disposes of the entire estate.
Application (a):
1.
Gilbert v. Gilbert
Concept (b): Revocation by Act to the Document –

Background: Generally, a testator may revoke a will by an unattested act to the document if that act
tends to suggest that the testator intended to revoke the will or some part of it. There are three
requirements:
1. Intent: The testator must intend to revoke the documents. Intent must be proven by clear and
convincing evidence and extrinsic evidence is allowed.
2. Act under statute: The testator must have performed an act sufficient under the statute.
31
a)
3.
UPC §2-507(a)(2): The UPC provides that any of the following acts will suffice to revoke a
will:
i.
Burning – When burning the document, the testator need not burn the entire
document. It is sufficient to burn an edge of the document. The burn need not touch
the words, but plenty of intent to accompany a claim of revocation under these
circumstances.
ii.
Tearing – Like burning, a testator need not tear the entire document. He need only
rip an edge to perform a valid revocation. Again, plenty of evidence of intent must be
present.
iii.
Canceling – A cancellation under the UPC need not touch the words of the
document. Thus, one can write “void” on the margins without writing it all over the
page. The usual methods for invalidation are available as well, such as drawing Xs
through each of the pages constitutes invalidation or writing “disregard” across the
face of the will.
 Note: When adhering to the formalities, a cancellation may also be evaluated as
a revocation by subsequent instrument.
iv.
Obliterating
v.
Destroying
b) Traditional statutes: [Kronauge v. Stoecklein] Although all of the above methods are
available as means of revoking the will, revocation by “cancellation” has caused the most
litigation. When a cancellation is not a “revocation by subsequent instrument, then unlike the
UPC, most traditional statutes, including the pre-1990 UPC, take a strict compliance view by
requiring words of cancellation to touch the words of the will.
Testator/3rd party: The act must have been performed by the testator himself or by another at the
testator’s direction and in the testator’s presence. If done by a third party, then the evaluation of
whether the 3rd party’s revocation is valid is evaluated under the same standard as attestation.
a) UPC §2-507: The UPC §2-507 (and pre-1990 UPC) adopts the “conscious presence” test to
determine whether the 3rd party performed a sufficient revocatory act. Thus, the act need not
be performed in the testator’s line of sight.
b) Traditional statutes: Traditional statutes have required strict compliance when a third party
purports to revoke a will. Thus, some courts require that the 3rd party make the revocation in
the “physical and mental presence” of the testator

Ineffective attempts to revoke: If a testator intends to revoke a will by act to the document and the will
is not destroyed by physical act because another person fraudulently intervened to prevent the
destruction, the will remains effective. Without the physical act, intent to revoke is insufficient to
revoke a will. The courts, however, will provide a remedy for any wrongful interference with an
attempt to revoke and will accomplish a testator’s intent through the constructive trust remedy. In the
rare event that the testator makes a unilateral mistake in trying to revoke the document by physical act,
then the court will also impose a constructive trust.
 “Spoliate” Presumption: [Estate of May] If will contestants prove that the testator had custody of
the will, a will that is found physically mutilated is (rebuttably) presumed to be revoked.

Lost will statutes: If a decedent executed a will that remained in the decedent’s possession after
execution, but it cannot be found after death, then many decisions presume that the decedent destroyed
the will with intent to revoke. The presumption can be rebutted, however, but courts disagree as to
which standard must be met before the presumption is rebutted (clear and convincing evidence vs.
preponderance of the evidence vs. depends on the situation). To rebut the presumption, regardless of
the standard, a proponent must generally show:
1. What the document said (e.g., via photocopy)
2. That the document was properly executed.
3. (Sometimes) The will is proved to have been in existence at the time of the testator’s death.
or
4. (Sometimes) The will was fraudulently destroyed in the lifetime of the testator.
32

Fraud: If a person obtains access to a testator’s will and wrongfully destroys it, the will is not revoked.
The act to the document is ineffective because it is not accompanied by the testator’s intent to revoke.

Revoking a portion of a prior will (by cancellation): [§2-507] Initially, both the SOF and Wills Act
frowned upon revoking only a portion of a prior will. The UPC, however, allows a will “or any part
thereof” to be revoked by revocatory act. Similar provisions appear in most non-UPC statutes. By
necessity, a partial revocation by act to the document, if valid, deprives someone of property and gives
that property to someone else. Generally, the revocation is allowed but the property cannot be given to
someone else without an attested act. It will, however, be allowed to pass to the residuary clause. Note,
too, that a holographic will can be changed by revoking a portion of the will as long as the testator
resigns the will.
 Limitation: A partial revocation by act to the document cannot change the nature of the disposition
(e.g., by crossing a life estate out in an attempt to create an absolute interest). Again, this is
because the giving of property requires an attested act.
Application (b):
1.
2.
3.
4.
5.
Kronauge v. Stoecklein
In re Estate of Bancker
Estate of Tolin
In re Estate of May
REVOKING A PORTION OF A WILL BY ACT TO THE DOCUMENTProblems, pg. 284 –
a) Testator is trying to change the residuary from 5 shares to 2 shares such that they will share 50/50.
Courts would probably not allow it and just give affect to the provision as originally written.
b) The same answer as #1.
The Restatement 3d of Property has attempted to abrogate this rule, but it is yet to be seen whether this
will have any affect. There is a feeling in the judicial system that people should not be able to change
their will by unattested acts. The problem is that this attitude of carries over to partial revocation and
the corresponding statutes that allow it. Courts read these statutes narrowly and often require any
subsequent change to be attested.
Concept (c): Revocation by Changes in Circumstances – Marriage, Divorce, Remarriage – [1990
§§2-508, -804; Pre-1990 UPC §2-508]

Background: Between the time testators execute their wills and die, their family circumstances change
dramatically. These certain changes in a testator’s circumstances can result in a revocation of the
testator’s will by operation of law. In most states, only divorce (with or without a property settlement)
or annulment still operates to revoke a will (in whole or in part) by operation of law.
1. Revocation upon Marriage:
a) Common Law: Premarital wills of women were revoked upon marriage and premarital wills of
men were revoked upon marriage and birth of issue. The wills were revoked as soon as the
operative event or events occurred. The fact that the spouse or the spouse and the couple’s
issue predeceased the testator did not matter.
b) Statutory Law: Only a few states presently have marriage revocation statutes.
2. Revocation upon Divorce:
a) State Statutory Law: Many states had laws in place that provided for revocation by operation
of law in cases of “subsequent changes in the conditions or circumstances of the testator.”
Many cases held that divorce coupled with a property settlement constituted a subsequent
change in the circumstances of the testator sufficient to revoke provisions in a pre-divorce
will in favor of the decedent’s former spouse.
b) Pre-1990 UPC §2-508: In a more specific statutory effort, the pre-1990 UPC provides that
divorce or annulment alone revokes any disposition of property made by the will to the former
spouse. This statute goes on to provide that the revoked devise passes as if the former souse
failed to survive the decedent.
 Note: In a change, the 1990 UPC §2-508 provides that the revoked provisions are given
effect as if the former spouse disclaimed.
33
Application (c):
1.
In re Estate of Spencer
Concept (d): Revival of a Revoked Will – [1990 UPC §§1-201, 2-509; Pre-1990 UPC §§1-201, 2509]

Background: A will that is revoked may be made valid again without a new execution. Consider G, a
testator who had previously executed two wills. Will #2 expressly revoked W1. Shortly before his
death, G revoked W2 by drawing a large “X” across each its pages. Has G died intestate, or is W1 his
valid will, i.e. has W1 been “revived”? Diagram:
G
X
W1
W2
Various views:
1. Ecclesiastical Rule: Under this rule, whether G’s W1 would be revived depends on G’s intent.
The burden to establish a testator’s “intent” to revive rests on the individual arguing revival. Intent
to revive can be established by extrinsic evidence.
2. Common Law Rule: “Automatic revival” ruleThe Common law would treat a testator’s prior
will as a valid will, regardless of the testator’s actual intention.
3. Wills Act of 1837: “Antirevival” ruleThe testator’s W1 would be revived only if the testator
either re-execute that will or execute a codicil showing an intention to revive that will (i.e. an
attested act is required). This is alive in 14 states.
4. Relaxed Wills Act Statute: Revival of W1 occurs if it “appears by the terms of” the revocation of
W2 that it was G’s intention to revive and give effect to W1 or if W1 was “republished” (i.e. oral
declaration of intent). This is alive in 5 states.
5. Pre-1990 §2-509(a): W1 is revoked in whole or in part unless it is evident from the circumstances
of the revocation of the second will or form testator’s contemporary or subsequent declaration that
he intended the first will to take effect as executed. The Boyson court interpreted this statute to
include three requirements:
a) The testator must know that the will was in existence.
b) The testator must know the nature and extent of his property an the dispositions.
c) The testator by act, or non-act, must disclose an intent to make the disposition which the
earlier will directs.
6. 1990 UPC §2-509: As the most liberal statute of all, W1 is revived if it is evident from the
circumstances or the testator’s declarations that the testator intended to revive W1. This standard
does not require specific “proof” of informed intent. Further, this statute expressly rejected the
Boysen requirements.
Application (d):
1.
PRE-1990 UPC §2-509AN AMBIGUOUS INTENT TO REINSTATE A PRIOR WILL IS AN
INSUFFICIENT ACT TO ACTUALLY REINSTATE SUCH WILL: In re Estate of Boysen – Boysen
made a 1964 will, but the court lost it. He then made a 1975 will. Although Boysen thought each will
pretty much distributed things equally, the ’75 will actually gave a tremendous amount more to one
woman than the ’64. He revoked his 1975 will in the car going home after he was told that the 1964
will was found. In doing so, he gave the pieces to Raymond and said “this will give you some idea of
my likes, you take care of it.” This statement was meant to mean “you take care of this in case they
lose my first will again.” The court considered whether Boysen’s actions were sufficient to revive the
1964 will. They held “no,” stating that Boysen’s tearing of W2 was not sufficient to revive his prior
will. The court established a three-question test and remanded to the trial court to determine whether
each of the three questions could be answered in the affirmative.
 Prof: The decision is wrong, but the court’s instincts were correct. The court did not handle the
situation properly. The way to handle this case is to invoke a well-accepted law doctrine called
mistake in the inducement. The court could simply say that they could not give effect to the
intent because Boysen was mistaken about the contents of each of his wills. But, because they did
not, Boysen was deemed to have died intestate (later will destroyed and prior will left unrevived).
34
Concept (e): Dependent Relative Revocation (Ineffective Revocation) –

Dependent Relative Revocation: [Rest. 3d] A partial or complete revocation of a will is presumptively
ineffective if the testator made the revocation in connection with an attempt to achieve a dispositive
objective that fails under applicable law. There are two situations in which this may arise:
1. Anti-Revival Statute: The testator makes W1, then W2. Then, the testator revokes W2 and an
anti-revival Wills Act statute is in place. Without dependent relative revocation (“DRR”), the
testator would die intestate. However, the doctrine of DRR applies to nullify the revocation of W2
and treat it as invalid. Although W1 remains unrevived, DRR allows effect to be given to W2 thus
making it a valid will.
G
X
W1
W2
Anti-Revival Statute
2.
3.

W2 defective: W1 is made, then revoked. Then W2 is made but it is not a valid will because it
was not validly executed. In this case, T revoked W1 in connection with a failed dispositive
replacement. Thus, DRR functions to nullify the revocation of W1 and give effect to W1. This is
somewhat of a tougher case, because of the requirements:
a) Nearly contemporaneous execution: [Patten v. Patten] To apply DRR, courts generally require
proof that the testator revoked W1 and instituted W2 at about the same time. This is a difficult
requirement to satisfy because people will rarely witness a testator’s declaration that he is
instituting W2 to replace W1.
 Relaxation of requirement: Some courts institute a presumption that W2 replaced W1 at
about the same time. Some courts even apply the harmless error rule to dodge DRR
altogether.
b) “Complete plan”: [Ausley/Dougan] When a testator tells an attorney to draft W2 after
subsequently revoking W1, but dies before signing W2, a complete plan of W2 will be
required to utilize the “comparison” aspect of DRR (i.e. comparing the plan of W2 to
intestacy and W1).
Mistake of Fact/Law: If a mistake of fact/law is made by the testator, and in reliance on that
mistake, T executes an express or partial revocation by subsequent instrument, DRR may apply to,
in part, correct that mistake by returning to W1. Thus, if T relied on a particular that is invalidated
or the will is contingent upon a law, thereby invalidating W2, DRR can apply. Similarly, if T was
mistaken in reliance upon a particular fact, DRR can apply.
 General Limitation: DRR will not be applied partially to allow a court to selectively choose
some clauses and not others from a testator’s prior wills.
Analyzing DRR:
Is it possible to revive W1 under any of the six standards in Concept (d)? (or apply §2-503 to set aside
the revocation of W2)
If yes, revive W1
If no, can DRR apply?
Situations
1.
2.
3.
4.
5.
6.
Mistake of fact/law
-orExpress (partial) revocation by subsequent instrument
-orAnti-revival situation
Ecclesiastical Rule
Common Law “Automatic revival”
Wills Act of 1837 “Antirevival” rule
Relaxed Wills Act Statute
Pre-1990 §2-509(a) + Boysen
requirements
1990 UPC §2-509
35
W2 defective
Usually b/c of
unattested
language
What was the Testator’s
“probable intention”?
Ask: Was W2 going to
replace W1 almost
simultaneously? If yes…
Question: Given the possibilities, would the
testator prefer an intestacy scheme over the
utilization of the recently revoked W2?
Analyze: Consider the pattern of distribution in
W1 as compared to those set out in W2
and the intestacy scheme.
Testator’s “probable intention”
Question: Given the possibilities, would the
testator prefer an intestacy scheme over the
utilization of the recently revoked W1?
Analyze: Consider the pattern of distribution in
W2 (or complete plan) as compared to those set out
in W1 and the intestacy scheme.
Increased amount given to a devisee
This is an easy case…apply DRR, don’t
Give affect to unattested language and
return to W1. Note, if there are purported
changes to multiple devisees, then evaluate
them one by one rather than an all or nothing
analysis.
Decreased
amount given to devisee
this is a tougher case.
Based on the facts, would
T rather give the devisee
nothing or go back to the
original devise?
Application (e):
1.
INEFFECTIVE ALTERATIONSAPPLY DRR TO ONE PURPORTED DEVISE AT A TIME
TO TRY TO GIVE EFFECT TO THE TESTATOR’S INTENTION: Schneider v. Harrington –
Testator initially gave 1/3 to P, 1/3 to M, and 1/3 to A. Then, she struck out certain provisions
purportedly to give ½ to P and ½ to M and remove A. The Court determined that because this was
unattested language, affect could not be given to the testator’s decision to change the devise. Each of
the revocations are each either all had to be rendered ineffective or none. There were, however, other
ways to accomplish the testator’s intent:
a) Another way testator might have accomplished this is just by striking out M and then struck out
the 1/3 to the others. This would mean that she intended to have the estate split between P and M.
Thus, they would have gotten half each. This is partial revocation by act to the document. Many
courts take the view that marking up the document to change the devise is not valid. Thus, it
would have been given effect as originally written. Here, DRR is not even applied.
36
Did T die before
signing W2? If
yes, does the
attorney have a
“complete plan”
of T’s new
intentions? If
yes, consider…
2.
3.
b) Or, she could have crossed out the 1/3 to A and written on the bottom “P and M to share A’s 1/3.”
This is the easiest DRR case. This is unattested language and must be ignored. But, the striking
out is an effective means of partial revocation by act to the document. Here, we could use DRR.
We know what the testator wanted, but we cannot fulfill the true intent. So, is the partial
revocation effective or ineffective under DRR? Under this analysis, we allow the revocation of the
1/3 to stand because it comes closer to the testator’s intention. That 1/3 would then drop into
intestacy such that P and M would receive as heirs. Although A is also an heir, it is a minimal
taking.
c) UPC: A negative will argument could be made, but it is a stretch to argue this.
 Prof 1: The court should have treated it as three separate revocations. If you take them
individually, then it is possible to apply DRR to come closer to the testator’s intent.
 Prof 2: People mark up their wills. Suppose the original will said 10K to X. Then, T crossed it
out and put 12K. Well, we can't give affect to the 12 and it would be silly to say that it is a
revocation of the 10 too. Here, apply DRR to ignore the potential revocation and allow the
10K to stand. Whenever you see a case that purports to increase the devise, always apply
DRR. The harder case is when it is a decrease. For example, 10K to X goes to 3K to X. Here,
you could apply DRR and ask whether the testator would have rather given X 10K or nothing.
It is a hard case when T reduces, but easy when T increases.
MISTAKE OF FACT/LAWProblems, pg. 313 –
a) The revocation here is presumptively ineffective because N turned up alive. We want to correct
mistakes in the inducement and N recovers the devise.
b) Courts have said we cannot correct this because the mistake in the inducement did not appear from
the face of the will. Extrinsic evidence is not allowed to show otherwise. Case law says that if you
revoke based on the inducement, the mistake can be corrected only if it was written on the face of
the instrument. Extrinsic evidence is not allowed to come in to correct the situation.
 Prof: Restatement of Property (pg. 300) treats all of these the same and allows extrinsic
evidence.
MINORITY RULEUNATTESTED LANGUAGE IN A 2ND WILL RENDERS THAT WILL
INVALID, REGARDLESS OF DRR: Crosby v. Alston – T made 2 wills and in both wills was a
charitable bequest, which was nearly identical or similar in each will. A Mortbane statute, which was
in place, said that if T execute a charitable bequest in a will days before death, it is presumptively
invalid because it looks like T is trying to buy his way into heaven. [This are generally not followed
anymore.] T moved to CA and already had W1, which was executed well before death, but W2 was
executed 90 days before death when T moved to CA. W1 and W2 were substantially similar, but W2
had a revocation clause. Under CA Mortbane statute, the bequest was invalid. This court declined to
apply DRR because they did not want to insert unattested language.
 Prof: Most courts would say allow DRR by stating that the revocation clause was contingent upon
the validity of the charitable bequest in W2. Thus, although we cannot give affect to the unattested
language in W2, we can come close to satisfying T’s intent by reinstating W1. T’s intent should
dictate a court’s decisions. Always ask what comes closer to T’s intent?
Chapter 6: Problems Created by the Time Gap in Wills [1990 UPC §§2-601,
-603, -604, -702; Pre-1990 §§2-601, -603, -605, -606]
Concept: Post-Execution Changes Relating to Persons – Lapse and Anti-lapse –

Background: What happens to a devise if the devisee predeceases the testator? Essentially, the devise
“lapses,” i.e. fails. This is because a will transfers property when the testator dies, not when the will
was executed, and because property can only be transferred to a living person. All devises, then, are
automatically and by law conditioned on “survival” or the testator. A devise fails, i.e. lapses, if the
devisee predeceases the testator and does not “survive.” But, what does “survive” mean?
1. Common Law: At common law, survival of the testator by an instant is sufficient to constitute
“survival,” thus allowing a devisee to take.
2. UPC “120 Hour Requirement”: [pre-1990 §2-6011990 §2-702] Under the UPC, a devisee
must survive the testator by 120 hours in order to take under the decedent’s will. The UPC’s 120hour requirement, under the 1990 UPC extends the requirement to “all governing instruments.”
37

Limitation: [Estate of Kerlee] The survival requirement is displaced by language in a will (or
other governing instrument) “requiring that the devisee survive the testator.” Thus, language
stating “if she does not survive me” in a will displaces the UPC 120-hour requirement.

Devolution of a Lapsed Devise: If a devise lapses, what happens to it? In the absence of an applicable
antilapse statute and in the absence of an expressly designated alternative taker, the lapsed devise
devolves in the following manner:
1. Lapse of a nonresiduary devise: Where lapse occurs in some part of the will other than the
residuary clause…
a) Judicial/State Rules: Lapsed devises of personal and often real property pass to the decedent’s
residuary devisees.
b) Common Law: Lapsed devises of personal property only pass to the decedent’s residuary
devisees. Lapses in real property pass to the decedent’s heirs.
2. Lapse in the residuary: When the residuary devisee predeceases the testator, the residue becomes
intestate property. If the residuary clause is in favor of more than one person, and if that clause
does not create a class gift, then:
a) Traditional Rule: The death of one or more, but not all, of the residuary devisees before the
death of the testator causes an intestacy as to the share intended for the deceased devisee.
b) Modern Rule: [pre-1990 UPC §2-606(b); 1990 UPC §2-604(b)] A lapsed share goes to the
other residuary devisees if there are any.

Antilapse statutes: [§2-603] Almost all jurisdictions have antilapse statutes. Antilapse statutes do not
abrogate the law-imposed condition of survival so that devised property passes to the estate of
predeceasing devisees. Antilapse statutes leave the law-imposed condition of survival intact, but
modify the devolution of lapsed devises by providing a statutory substitute gift. The statutory
substitute gift is usually to the devisee’s descendents who survive the testator. These statutes are
remedial in nature, tending to preserve equality of treatment among different lines of succession. As
statutory rules of construction, these statutes are therefore designed to produce a result closer to the
testator’s probable intention than the disposition that results under CL lapse. But, they will yield to a
showing of contrary intent.
Application:
1.
2.
Devolution of lapsed devise (minority view)Estate of Griffen
ANTILAPSE STATUTE §2-603: Problems, pg. 355 –
a) S predeceases G, but leaves N as her child. X charity is still in existence at the time of G’s death.
The charity takes the residue, but who takes the 10k? It does not go to S because she did not
“survive” within the meaning of the statute. Under any anti-lapse statute, it would go to N (thus, it
is not unique to 2-603). Focus on sub-section (b) for this problem.
Subsection (b): Has five paragraphs—
 Paragraphs 1 (non-class gifts) and 2 (class gifts) are entry points into the statute. In this case,
we start at (b)(1)…if the devisee predeceases the testator, then the devise goes to the devisee’s
descendents. Thus, N would take here.
 Paragraphs 3 and 4: Consider (b)(4), which says, if the will creates an alternative devise in the
will itself, then that prevails over the substituted gift provision in (b)(1). That alternative gift
prevails only if the alternative taker can take. Thus, the question in the problem becomes “is
the residuary clause in favor of the charity an alternative ‘take’ within the meaning of the
statute?” An alternative devise is defined at (a)(1) to mean that a residuary clause is not
treated as an alternative devise. So, the 10K goes to S’s child, N.
 Prof: Only Arizona says that a residuary clause does create an alternative devise.
Everywhere else…N would take.
b) Same facts, but now the residuary clause says, “the residue of my estate including any lapsed
devises goes to X.” This language is much more explicit showing T’s intention to have any lapsed
property drop into the residuary.
 UPC 2-603: Now, it would go to X charity because of the strong language. The statute
provides that the residuary clause becomes an alternative devise when the will’s language
38
provides that it should. The case law is consistent with this statutory provision. Again, this is
an example of how the UPC result is the same as any other anti-lapse statute.
c) 10K to my surviving children – Two children, A and B…A predeceased T, but left a child X who
survived the T. B survived T as well. This is a class gift because of the language “to my children.”
If you describe the takers solely in terms of their relationship to you, then the presumption is that it
is a class gift. But, if you said “to my three children” this would not be a class gift because it is
descriptive. In this case, the entry point into the statute is (b)(2). It says that if you have a class
gift, and one of the class members predeceases leaving a surviving a child, then divide it up into
the number of class members who survived plus the number who predeceased leaving
descendents. Then, divided it up…here, we divide into two shares such that B takes ½ and X takes
½. If there were a sibling of X, “y” then they would split the one half. If there was a “C” who left
no descendents, then C’s estate would take nothing and it would be as if C never existed. Prof:
a) Do anti-lapse statutes usually apply to class gifts? For a time, this had to be litigated. But, all
new anti-lapse statutes expressly state that they apply to class gifts.
b) Consider (b)(4) – There is an extrinsic or explicit “gift-over” to the other members of the class
in a class gift. This provision says that the only alternative devises are those that are expressly
created within the devise. There are no implicit alternative devises. The one difference in the
UPC…should the word “surviving” mean that the T intended to defeat the anti-lapse statute?
 Case law [Majority Rule]: Survival language is an expression of contrary intention that T
intended to defeat the anti-lapse statute. An example is the Detzel. This is problematic
and the question “did the will express a contrary intention?” comes up frequently.
 UPC [2-603]: Only anti-lapse statute that addresses this problem. UPC states that
survival language without more does not express a contrary intention. (b)(3) takes
the position that the survival language does not defeat the anti lapse statute unless
there is “additional evidence” that the survival language was supposed to defeat the
statute. A lawyer can obtain additional evidence when explaining the language of a
will to a client.
 Prof: This statute is designed to encourage lawyers not to rely solely on
language of survival. We want to encourage lawyers to say what they are doing
in the document rather than relying on the law (the law can change).
d) Conflicting substitute gifts: There are two different devises. 5K to son A and 7500 to daughter B.
Both A and B predeceased T and both left issue who survived the testator. Consider first the 5K
devise…it says “5K to A if he survives me, if not to B.” The other is a reversal of the names.
5K Devise:
1. Non-class gift: Is it a class gift? No, it is a named person. So, the entry point is (b)(1).
2. Substitute gift: That portion says that if the devisee predeceases, then a substitute gift is
created if the devisee left issue. Under (b)(1) then, there would be a substitute gift created in
favor of A’s issue. But, this is not the end because there was an alternative devise to “B.”
3. Alternative devise: Provision (b)(4) provides that the alternative devise supercedes the
substitute gift, but only if the alternative devisee survives. Here, B cannot take because he
also predeceased and thus (b)(4) does not apply. There is still more…(b)(4) fails to supercede
either substitute gift because neither A nor B survived T. Thus…
4. We return to the entry point and read the word “devise” as including the alternative devise.
Thus, (b)(1) applies to the person “B” and could give the substitute gift to B’s issue. Now,
there are conflicting substitute gifts because both left issue…how can we resolve it?
5. Subsection (c): General Rule is that the substitute gift that prevails is the one that substitutes
for the primary devisee rather than the secondary devisee. The primary devisee is A because
he would have taken the 5K had he survived (B takes only if A dies and thus B is the
secondary devisee). So, the issue of A take the gift of 5K.
7.5K Devise:
1. B’s issue takes here because in this second devise, B is the primary devisee.
 Prof: Why does the statute do all of this? Because we want to be sure that there is a “tiebreaker” in the case of conflicting single devise’s.
2. 5K to A if he is living at T’s death, if not to A’s children. A predeceases and leaves two
children X and Y. Y survives T, but X does not. X leaves two children that survive G, M and
N. The statute created a substitute gift via (b)(1), i.e. A’s descendents. Is this superceded by
39
e)

(b)(4)? (b)(4) gives the gift to an expressly designated alternative devisee who can take. Is
there one? Yes, child Y can take and is one of A’s children who survived the testator and can
take. The alternative devise thus superecedes the substituted gift. But, what about (b)(2)? This
is a class gift situation, so we now need to apply this provision too. Thus, Y would take ½ and
M & N would each take ¼.
Class gift section: M and N each take ¼ while Y takes ½.
Alternative devise section: In this case, M and N take ½ each to the exclusion of Y under the
“younger share generation” exception of §2-106.
Summary chart: Devisee under a will has predeceased the testator. What happens…
Two major prefacing notes:
1. “Survival”: For purposes of this section, the UPC provides that the 120-hour requirement of
survival is not defeated by survival language in a devise, absent additional evidence.
2. Alternative devise: A residuary clause under §2-603 is not an alternative devise, unless the
language of the will provides that it should be.
Is there an anti-lapse statute?
If no, then
where is the
lapse?
Nonresiduary
lapse. What
rule governs?
State law: Real and
personal property go
to the decedent’s
residuary clause.
Individual Devise
A substitute gift is created
for the devisee’s surviving
descendants, who take by
representation
Note: A residuary devise is not
an “alternative devise” for purposes
of §2-603.
Lapse in the
residuary.
What rule
governs?
CL: Personal
property goes to the
residuary clause,
but real property
goes to the
decedent’s heirs.
-or-
UPC: Share goes
to the other
residuary
devisees
Traditional
Rule: Share
passes by
intestacy
If yes, apply
UPC §2-603.
Does the will
provide for an
alternative
devise?
No, then the following
analysis applies only to the
“protected class,” i.e.
grandparents, descendants of
grandparents or the
stepchildren of T. Ask,
what type of devise was it?
Yes, conflicting gifts. So,
determine the primary
devise by asking who
would take if all the
devisees had survived T?
Class gift
A substitute gift is
created for any of
the surviving
descendants of the
deceased devisee
Give the devise to the
descendents of the primary
devisee via “primary substitute
gift,” unless they’ve
predeceased and have a
younger generation.
40
Yes, then is there
more than one
alternate devises?
No, then give it
to the alternative
devisee if he is
entitled to take
under the will,
i.e. if he survived
by 120 hours
Chapter 8: Revocable Trusts and Other Will Substitutes
Concept (a): Validity of Will Substitutes – Form Over Substance –

Generally: Will substitutes have come to equal and perhaps dominate deathtime transmission of
wealth. The ideal will substitute allows the donor to retain lifetime enjoyment and control over the
asset, while purporting presently to transfer to another person a property interest in (or a contract right
to) future possession of that asset. Life insurance, pension accounts, joint accounts, joint tenancies (if
severable), and revocable trusts fit this mold and are widely used.
1. Revocable (inter-vivos) Trusts: [The Present Transfer Test] A revocable trust is a trust in which
the settlor (i.e., the person who sets up the trust) reserves the right to terminate the trust and
recover the corpus. They are created only when the settlor places property in the trust. Often, such
trusts are called a will in substance, but not in form because a trust creates a present transfer of
interest while a will transfers ownership at death. Correspondingly, property law recognizes the
validity of such a trust, even one in which the settlor retains the right to income for life, based on
the “present transfer test”:
a) Present Transfer Test: Upon creation, the trust transfers an equitable remainder interest in
the trust corpus to the remainder beneficiary while the trustee retains legal title. This
fragmented ownership could be fragmented further if there were another beneficiary. If so, the
settlor retains right to terminate, the trustee retains legal title; the first beneficiary retains an
equitable interest, while the second beneficiary retains a remainder interest. Each of these
interests are subject to divestment.
 NOTE: The fact that the remainder interest is subject to divestment does not jeopardize
the validity of the trust. A present transfer of a remainder interest, even one that is subject
to divestment by the settlor’s power to revoke, satisfies the present-transfer test and
obviates the necessity of memorializing the trust in a document that is executed in
accordance with the formalities of a valid will. The transfer is treated as inter vivos, not
testamentary. Thus, a trust transferring the interests that the settlor owns at death does not
satisfy the present transfer test because the settlor does not yet have the property that he
intends to transfer.
b) Property requirement: As noted, the settlor must place some property into the trust for the
trust to begin. However, he can put as little as a penny into the trust with the presumption that
he will have tangible assets at a later date. If such an option is chosen, the settlor can
correspondingly execute a “durable power of attorney,” which allows an agent to transfer the
settlor’s financial assets into the trust, should the settlor become incapacitated.
2.
Other Will Substitutes: [The Present Transfer Test] The present transfer test is widely used to
validate many will substitutes, not only revocable trusts. For example:
Valid Will Substitutes:
1. Life Insurance: Compliance with the statutory formalities for wills is not required of
beneficiary designations of life-insurance policies. Although life insurance contracts pay out
at death, the beneficiary designation, when made, is treated as conferring a present contract
right on the beneficiary despite being subject to divestment.
 UPC Note: [§2-706] The UPC adopted an anti-lapse statute for life insurance.
2. Life Insurance Trusts: The proceeds of life insurance policies are generally either wholly or
partly exempt from the claims of the insured’s creditors. Thus it has become a popular form of
estate planning to establish a life-insurance trust. There are generally two types—
a) Tax motivated trust: An irrevocable life insurance trust created by transferring the full
ownership of the policy from the insured (i.e. settlor) to the trustee. In this manner, legal
title is given to the trustee while equitable title is given to the beneficiary. The
arrangement is designed to avoid the inclusion of the value of the proceeds of the policy
in the insured’s gross estate. Trusts of this sort can be funded, i.e. other assets can be
irrevocably transferred to the trustee, in addition to the life insurance policy.
41

Prof: Because you cannot start a trust without putting some property into the trust,
the K to form the tax motivated trust is considered to be the “res” or trust property.
b) Non tax motivated trust: A revocable life insurance trust created by naming the trustee as
the beneficiary of the life-insurance policy, with directions to the trustee to collect the
proceeds on the insured’s death and carry out the terms of the trust. The motive for this
trust is usually the administrative convenience of having insurance proceeds added at
death to an existing inter vivos trust. Also, it allows the insured to revoke the trust or the
designation of the trustee as the beneficiary of the policy. In the Gurnett case, the court
held that this type of trust passed the present transfer test because “the continuing
contract right to receive the proceeds of an insurance policy is not impaired by the
unexercised right or privilege of the insured to designate another beneficiary.
 Prof: There is no doubt about the validity of revocable life insurance trusts anymore.
They are valid without being executed in accordance with the requirements of a will.
The reason why this would be a question is because the right to receive the interest in
property occurs at death. It is a will in form, but not in substance.
3. Joint Tenancies: This form of ownership satisfies the “present transfer” test because it
creates a right of survivorship upon creation. Like the non-tax motivated trust, the present
transfer is not disturbed by the unilateral a right to sever. This applies to:\
a) J/T in land: Each J/T individually or together has the right to sever the J/T and turn it into
a tenancy in common in land. For tax purposes, each joint tenant is treated as owning a
fractional interest.
b) J/T Bank Account: The ownership here for each J/T is treated as a proportional interest in
terms of what that T put into the account. But, each J/T has the power to write a check for
the full amount of money from the account. This is not an ownership statute, it is only in
place to protect the bank. If X withdrew more than he contributed, G can go after X for
that amount subject to a 3 year SOL.
 Prof: There is a federal gift tax, and doesn’t the J/T bank account look like a nice
way to make a gift? The IRS says no because if G lets the SOL run, it is considered
to be a gift. The IRS says that G is presumed to know the law and to have allowed it
to expire, which represents donative intent.
4. Pension Account: There is a death benefit. Examples are 401Ks, Roth IRAs. This gives a
beneficiary designation.
Invalid:
1. POD “Payable on Death”: [For bank accounts] These accounts are created when a depositor
registers the account in his or her name “payable on death” to another person. Unlike J/T
accounts, the form of POD accounts discloses the intention to transfer benefits only at the
depositor’s death. This difference in form has led most courts to treat joint and POD accounts
differently. Thus, in the absence of validating legislation, POD accounts are generally held to
be testamentary.
 Note: The same logic applies to “TOD” (i.e. transfer on death), which is used for
securities.
2. Agency account: This is for a checking account in which an adult child is put on the account
as the parent’s agent, but there is not right of survivorship. So, upon death the excess money
simply becomes part of your probate. This is a way for elderly to allow children to pay their
bills and help manage their money.
Application (a):
1.
TRUSTS ARE VALID WILL SUBSTITUTES AND WILL PRINCIPLES GENERALLY DO NOT
APPLY TO TRUSTS: In re Estate and Trust of Pilafas – Three children were cut out of the trust. In the
trust, it authorized the settlor, who also served as trustee, to revoke the trust by a written instrument
delivered to the trustee. The original trust was in the settlor’s possession but was not found following
the settlor’s death. The court refused to apply the presumption of revocation by destruction that would
apply to a will in such circumstances. The trust specified the means of revoking the trust and it could
not be revoked by physical destruction of the trust instrument, even if the settlor was presumed to have
performed that act. Thus, the court held that when a settlor expresses a method of revocation, then that
is the exclusive method and any other method is ineffective.
42

Prof: This idea is not clearly stated in the Rest. 2d of Trusts. The new Uniform Trust Code takes
the view that if the trust document expresses a method of revoking, it is not the exclusive method
unless the document says it is. The new Rest. 3d also adopts this view. Thus, the new views run
contrary to this court’s holding.
Concept (b): Will Substitutes and the Subsidiary Law of Wills –

Generally: When the beneficiary-devisee under a trust pre-deceases the settlor, what happens? Thus the
question in this area is to what extent should the intent-effectuating rues in the wills realm apply to will
substitutes, i.e., to what extent should will substitutes be allowed to benefit from such things like an
anti-lapse statute or the statutes providing for revocation upon changed circumstances?
1. Revocation Upon Divorce: [1990 UPC §2-804; Pre-1990 §2-508; Clymer v. Mayo] A trust
allowing no investable assets during the life of the settlor comes so close to the form of a will that
subsidiary law of wills’ statutes may revoke such trusts to adhere to the intent of the settlor.
2. Antilapse Statutes: [1990 UPC §§2-702, -706; Pre-1990 §§2-601, -605; 1st National Bank v.
Anthony; In re Estate of Button] By their terms, antilapse statutes apply only to wills. Thus:
 No anti-lapse statute general rule: [Common Law] The remainder beneficiary does not have to
survive the settlor of a revocable inter vivos trust when a condition of survivorship is not
attached or expressed to retain his interest. Thus, when the settlor dies, the beneficiary’s
interest in the trust still passes into the beneficiary’s estate for distribution via will/intestacy.
These trusts pass the present transfer test creating a remainder interest in the beneficiary upon
creation of the trust and should therefore not be treated like a will not matter how close they
come. Thus, the trust does not retain the benefit of an anti-lapse statute under this rule.
 Minority Rule: [Button CaseUPC §2-707] A condition of survivorship is built into the
terms of a trust. Thus, if the devisee-beneficiary does not survive, then the interest goes
directly to the beneficiary’s issue (via substitute gift) rather than first passing to the
beneficiary’s estate.
Application (b):
1.
2.
REVOCATION UPON DIVORCE (Pre-1990 Code)A WILL SUBSTITUTE THAT LOOKS
LIKE A WILL IN FORM, BUT NOT IN SUBSTANCE, CAN BENEFIT FROM THE SAME RULES
OF CONSTRUCTION AS AN ACTUAL WILL: Clymer v. Mayo – A decedent’s revocable trust
named a spouse as beneficiary. Then, the spouses divorced, the trust was not amended after divorce,
and the state divorce revocation statutes applied only to wills. The court held that the divorce
terminated the ex-spouse’s interest in the trust, because the statute was deemed to reflect or presume
the settlor’s intent to revoke. The court reasoned that the wills divorce statute was indicative of the
intent of the average citizen with respect to this kind of trust as well as a will. This reasoning is
justified by how close a trust of this nature comes to being a will because the assets are paid out upon
death.
NO ANTILAPSE STATUTE (common law)THE INTEREST OF A BENEFICIARY IN A
TRUST DOES NOT LAPSE IF HE PRE-DECEASED THE SETTLOR WHEN NO CONDITION OF
SURVIVORSHIP IS EXPRESSED: First National Bank of Bar Harbor v. Anthony – The settlor of a
revocable inter vivos trust retained a life estate in the trust corpus, with 1/3 of the remainder to a son
who predeceased the settlor. Had the gift been made by will, it would have lapsed unless saved for the
son’s descendents by an antilapse statute. But, because the son received a future interest upon creation
of the trust, and because no condition of survivorship was expressed, the son’s remainder interest
belonged to his estate for distribution to his heirs (if he died intestate) or devisees (if he died testate).
Concept (c): Coordinating the Parts into a Coherent Estate Planning Whole –

Generally: What means, other than will or trust/will substitute, can be used to implement an effective
estate plan? As discussed, the revocable inter vivos trust is certainly a “staple” of the estate planners
inventory. But, what other lesser tools are available?
1. Pour-over devises: [UPC §2-511; Pre-1990 UPC §2-511] A pour over devise allows the residue
of a decedent’s estate to be placed into a trust in existence at the testator’s death.
a) Common Law: At CL there was concern for the validity of a revocable/amenable inter vivos
pour over devise because the Wills Statute requires that the ultimate beneficiaries be
43
described in the will. Although courts agreed that an irrevocable inter vivos trust was valid,
courts disagreed on the methods available to get the problems of revocable inter vivos trusts.
Courts utilized two theories:
i.
Incorporation by reference: If the trust was in existence at the time the will was
executed, then it would be held valid. However, if an amendment was made to the
trust, then such an amendment failed the “in-existence” requirement.
ii.
Independent facts of significance: Some courts tried to use this doctrine to validate
amendments to the trust by stating that an amendment had independent significance
because it controls the assets in the trust. However, this did not work well for such
things like life insurance policies, which have no assets in trust.
b) Uniform Testamentary Additions to Trusts Act (1960): [incorporated at pre-1990 UPC §2511] This permits wills to pour probate assets into revocable or irrevocable inter vivos trusts.
Under this act, pour-over devises are valid even if the trust is amended after the execution of
the will. The act requires the testator to identify the trust in his or her will and to state the
terms of the trust in a writing executed before or concurrently with execution of his or her
final will or the valid final will of another person who predeceased the testator.
c) 1990 UPC §2-511: The 1990 UPC substantively changed the above act by discarding the
requirement for the existence of the trust when the will is executed. Also, it stated that the
trust could be funded exclusively by the pour-over device rather than having to be funded
during the testator’s lifetime. Finally, the 1990 UPC provided that a testator can create a trust
before or after the creation of a will.
2.
Durable Powers of Attorney: [UPC §§5-501, to -505] A power of attorney creates an agency
relationship between the maker of the power (the principle) and the attorney-in-fact (the agent).
a) Common law: This power terminated if the principle became mentally incompetent.
b) Pre-1990 UPC: This changed the CL by making the power of attorney “durable.” As opposed
to an ordinary power of attorney, a durable power of attorney continues to be valid after the
principle has become mentally incapacitated. Additionally, written powers of attorney
continue to be valid after the principle’s death; actions taken by the attorney in fact in good
faith under the power are authorized until the attorney in fact gains actual knowledge of the
principle’s death.
 Note: Other power of attorney statutes exist, such as the UPC §§5-501 to 5-505. But there
is nothing in the law that requires financial institutions to honor such relationships. Thus,
when an attorney-in-fact tries to make a deposit or some other transaction for the benefit
of the principle, a financial institution is not bound to honor the transaction. Many
institutions will, however, authorize transactions in the presence of a notarized deposit
form, but these can prove troublesome. For this reason, this relationship is said to have
“no teeth.”
Chapter 10: Protection of the Family: Limitations on the Freedom of
Disposition
Concept (a): The Spouse’s Elective Share –

Generally: Freedom of disposition is the hallmark of the American law of succession. Thus, it is only
abridged in limited circumstances and in limited ways. How and when do these circumstances arise?
1. The Partnership Theory of Marriage: Disinheritance of a surviving spouse brings into question
the fundamental nature of the economic rights of the parties to a marital relationship, of how the
institution of marriage is viewed in society. The contemporary view is that it is an economic
partnership, but there are various ways this is expressed:
a) Community Property and Marital Property Systems: Under this system, the husband and wife
own all assets acquired by either of them during the marriage in equal undivided shares. This
theory is based in the idea that each spouse owns a half interest in the earnings of the other
acquired during the marriage, in effect as a tenant in common.
 Limitation: Property acquired prior to the marriage and property acquired during
marriage by gift, bequest, or inheritance are not counted in the community, and so remain
separate property.
44
b) Equitable Distribution Upon Divorce: Under these statutes, equitable distribution views
marriage as essentially a shared enterprise or joint undertaking in the nature of a partnership
to which both spouses contribute directly and indirectly, financially and non-financially, the
fruits of which are distributable at divorce. Thus, the regime presumes that all assets acquired
by either spouse during marriage are marital thereby giving the divorcing spouse a
presumptive 50% interest in the “marital assets,” regardless of how they were titled.
c) Conventional Elective-Share Law: [Dower] All states agree that disinheritance of the
surviving spouse at death is one of the few instances in which the decedent’s freedom is
limited. Such systems provide a surviving spouse a “forced share.” The UPC uses the term
“elective” share. Under traditional elective share law, including the pre-1990 UPC, a SS is
granted a personal non-transferable right to claim a one-third share of the decedent’s estate,
not a transmissible right to claim the fifty percent share a partnership theory would allow
[letter (a) above].
d) 1990 UPC’s Redesigned Elective Share: The statute sought to move elective share law into
the financial partnership style. The system breaks down…
[(Elective share %) x (Augmented Estate)] – (Voluntary transfers) = Supplemental Elective Share
I.
2-204 Net probate
+
2-205 Non probate transfers
to others beside SS
+
2-206 Non probate transfers
to SS
+
2-207 SS Assets
Voluntary probate/nonprobate transfers to SS
+
[(SS assets) x (2 x Elective Share %)]
Now…
a) Calculate the supplemental amount to determine how to charge the other heirs:
II.
Supplemental Elective Share for SS
------------------------------------------(2-204 + 2-205) – Probate gifts to SS
= % to deduct from everyone else
b) If the supplemental amount is less than 50K, then further calculations are necessary:
2.
i.
2-207 (SS assets)
+
2-209(a)(1)(voluntary non-probate/probate transfers to SS)
+
2-209(b)(Supplemental Elective Share)
--------------Answer
ii.
50K – Answer = Supplemental Amount
Protection Against Will Substitutes: One of the most troublesome issues regarding elective
share law is the extent to which the surviving spouse’s rights extend to will substitutes. An
elective share may be of little value to a SS if it applies only to a fraction of the decedent’s probate
estate. The decedent could use one or more will substitute to implement an estate plan that
effectively disinherits his or her spouse.
a) CL Theories: The courts have adopted one or the other of two approaches:
i.
Fraudulent-intent test: Under this test, the trier of fact must determine what the
decedent’s motives were in moving his assets around. If he intended to defeat the
spouse’s elective share, then the court would bring those assets back into the probate
45
3.
4.
estate. Most jurisdictions rejected this test because of how difficult it is to determine
a decedent’s subjective motives.
ii.
Illusory-transfer test: [Majority Rule] – This is an objective test which asks whether
the spouse in good faith divested himself of ownership of this property or has made
an illusory transfer. For example, if a decedent not only retained the income for life
and power to revoke the trust and the right to control the trustees. Under this test, it
would seem that a garden-variety revocable trust is not illusory because it seems a
settlor must retain more power over the trust than just the power to amend/revoke.
b) The Decedent’s Nonprobate-transfers-to-others Component for the UPC’s Augmented Estate
System: [§2-205] To determine what will substitutes and other property the elective share
might reach under the UPC, consider §2-205:
i.
Property owned in substance before death: Included in this standard are assets that
the decedent had the power to become owner of. Thus, any assets that the decedent
had substantial control over are included in the augmented estate. Included:
1. “Garden-variety” revocable trust
2. Fractional interests in J/T
3. Ownership of mobile accounts
4. Life insurance policies
ii.
Transfers that took place during marriage: Any transfers that the decedent did not
own all of the interest in at death is included.
iii.
Property set up by the decedent in the two years preceding his death: Any property
set up or relinquished during the two years preceding the decedent’s death is
included in the elective share. This provision is designed to catch all maneuvers the
decedent might make in order to dodge the elective share.
The incapacitated Surviving Spouse: Should the elective share be available to a mentally
incapacitate SS? If so, who should have the power to make the election and by what standard
should that power be exercised?
a) “Best interest” Statute: [Clarkson v. First National Bank] A personal representative of an
incapacitated spouse may make an election for the surviving spouse if is in the spouse’s “best
interests.” This generally has been interpreted to mean that the election should be made if the
monetary value of what the spouse receives is greater under the elective share than under the
will.
b) Pre-1990 §2-203: The right of election can be exercised on behalf of a protected person (i.e.,
and incapacitated spouse) only after a finding that “exercise is necessary to provide adequate
support for the protected person during his probable life expectancy.”
c) 1990 UPC §2-212(a): An election made on behalf of a spouse who is an “incapacitated
person” requires that the portion of the elective share and supplemental elective share
amounts that are payable from the decedent’s probate estate and nonprobate transfers to others
under §2-209(b)(c) goes into a custodial trust.
Premarital and Postmarital Agreements: The right to an elective share (and other death
benefits) may be waived by premarital or post-marital agreement. In the absence of a statute, the
validity of these agreements depends upon general principles of K law. However, because of the
confidential relationship between the parties, the law has moved toward a closer standard of
scrutiny to analyze the potential for overreaching by either party:
a) Modern Rule: In judging the validity of pre/post marital agreements, a court must consider:
i.
Fair/reasonable provision: whether it contains a fair and reasonable provision as
measured at the time of its execution for the party contesting the agreement;
ii.
Disclosure of finances: the contesting party was fully informed of the other party’s
worth prior to the agreement’s execution, or had, or should have had, independent
knowledge of the other party’s worth; and
iii.
Waiver: a waiver by the contesting party is set forth.
b) Uniform Acts: Three uniform acts contain provision governing the validity of premarital
agreements:
i.
Pre-1990 UPC §2-204: This provision requires a standard of “fair disclosure” to
pre/post marital agreements.
ii.
Uniform PreMarital Agreement Act (1983): This standard requires a showing that:
46
1.
5.
The agreement was executed involuntarily, or was unconscionable when made,
and
2. Before the agreement, there was no fair/full disclosure of the assets and
3. The contestant did not waive the right to disclosure and
4. The contestant did not have or could not reasonably have had adequate
knowledge of the property.
iii.
1990 UPC §2-302: adopts the Uniform PreMarital Agreement Act
Tax Implications of an Election: [§2-204] By electing, the spouse receives absolute ownership of
all property the spouse is entitled to. The elective share is applied to the estate before it is reduced
by taxes and the elective share, itself, is not a taxable transfer. It is subject only to funeral and
administrative expenses, family allowances, etc.
Application (a):
1.
1990 UPC ELECTIVE SHARE SCHEMEProblems, pg. 534 –
a) [PROBLEM 1(A)]:
2-204  The number is $500,000.
2-205 does not apply in this problem
2-206 does not apply in this problem either
2-207  The number is $100,000.
---------Adding these together = augmented estate, which = 600K. Now, how long were they married?
Look at the schedule in 2-201. The number is 50% because the marriage is greater than 15 years,
so the forced share is 300K. Now, we must go to 2-209…What involuntary transfers must take
place? Did the decedent make any voluntary transfers to the surviving spouse (2-209(a))? No, the
decedent died with a will that disinherited the surviving spouse. Had the decedent died intestate,
the intestate share would count as a voluntary transfer. Thus, the elective share can apply to an
intestate situation because otherwise, people could shift everything to will substitutes. Anyway,
the 2-209(a)(1) amount is zero because there were no voluntary transfers. But, in 2-209(a)(2)
would be minus 100K. Now 2-209(b) need not apply because we have already equalized their
assets. Thus, the final number that would go to the surviving spouse is 200K.
b) [PROBLEM 1(B)]:
2-204  The number is $500,000.
2-205 does not apply in this problem
2-206 does not apply in this problem either
2-207  The number is $100,000.
---------------------------------Again we get 600K and then take 50%. This is 300 K, but now we must subtract 500K and we see
that the surviving spouse gets nothing because S has already received more interest that S is
entitled to.
c) [PROBLEM 2(A)]:
Approximations
2-204  The number is $500,000.
150K is marital and 350K is non-marital
2-205 does not apply in this problem
2-206 does not apply in this problem either
2-207  The number is $100,000.
30K is marital and 70K is non-marital.
=180K of marital assets
---------------------------------Again we get 600K, but they were only married for 5 years. Both spouses had kids from previous
marriages. This is a “late in life” marriage. The elective share percentage from 2-201 is 15%.
Therefore, we are working with 90K. Although there were no voluntary transfers, we must
consider the spouses assets under 2-209(a)(2). What we count here is not 100% of the surviving
spouses assets, but rather double the elective share of those assets. So, we only count 30% of those
assets which = 30K and thus 90-30 = 60K as the final number.
 Prof: Go back to the schedule of 2-202, which is designed to approximate the marital assets at
each step. So, at a five-year marriage…we are saying that the elective share is 15%, which is
47
supposed to equal 50% of the marital assets. The idea is that 30% was marital assets while
70% was property. And, as you move down the schedule and as the length of the marriage
increases, it is presumed that the marital assets increases while the non-marital assets
decreases. The marital portion of the assets is twice each one of the percentages.
 Prof 2: The purpose of these statutes is to equalize the marital assets, but not the non-marital.
d) [PROBLEM 2(B)]:
2-204  The number is $100,000.
2-205 does not apply in this problem
2-206 does not apply in this problem either
2-207  The number is $500,000.
--------------Again it is 600K times 15%, which equals 90K. Then, subtract 150K which would give the
surviving spouse zero because it would over-compensate the surviving spouse.
e) [PROBLEM 2(C)]:
The value of D’s estate totals 90K; S’s assets total 10K. Consider 2-202(b).
2-204 amount is 90K
2-207 amount is 10K
-------------------------Augmented estate = 100K
Elective share % = .15
----------------------------Elective share amount = 15K
2-209(a)(1) = 0 [voluntary transfers to the surviving spouse]
2-209(a)(2) = 3K
---------------------------Forced share = 12K [2-209(b)]  regular elective share that the spouse is entitled to.
2.
3.
2-209(b)  Is the surviving spouse entitled to a supplemental amount? Consider this only when
the forced share is low, as it is here. The statute says we take the 2-207 number + the amount in 2209(a)(1) + the amount in 2-209(b). Then, is that number less than 50K? If so, determine the
supplemental amount:
2-207 = 10K
50
2-209(a)(1) = 0

-22

22K+28K=50K
2-209(b) = 12K
------------------------------------------------------28K = supplemental amount
22K
Supplemental amount is the right of the SS to have the total share add up to 50K. It is not a right to
take 50K from the decedent’s estate, it is a right to have your assets add up to 50K. If the SS
already has 50K in their own assets, then forget about the supplemental amount. If the spouse has
less than 50, then you work through the elective share. Then, if that amount, plus their own assets
is still less than 50K, the supplemental analysis kicks in. Thus, it is only when the assets are below
50K do we do the supplemental analysis.
REVOCABLE TRUSTSA REVOCABLE TRUST, IF ESTABLISHED DURING THE
MARRIAGE, IS SUBJECT TO THE ELECTIVE SHARE IN THE FUTURE: Sullivan v. Burkin –
The court, in their holding, subjected trust assets to the spouse’s elective share if the settlor alone had a
general power of appointment, exercisable during life or at death, over the trust (i.e., a power to direct
the assets for her own benefit). Because the power to revoke a trust is such a general power of
appointment, this test results in all revocable trusts being subjected to spousal elections.
 Prof: It is a big deal to say that the regular garden-variety revocable trust is subject to the elective
share. Although the trend is for courts to subject will substitutes to the elective share, this may be
a stretch.
REVOCABLE TRUSTSDEPENDING ON THE JURISDICTION, A PERSON MAY BE ABLE
TO TRANSFER ASSETS TO A TRUST FOR HIS OWN BENEFIT AND DISINHERIT THE SS:
Seifert v. Southern National Bank – This court disregarded a change in South Carolina’s elective share
statute that expressly limited the forced share to the decedent’s probate estate, which was specifically
48
4.
defined as property passing under the will (or by intestacy), and allowed a surviving spouse’s elective
share claim to reach assets held in the decedent’s revocable inter vivos trust. The decision illustrates
the strength of the elective share policy in some states, protecting a surviving spouse from inheritance.
 Prof: This case creates uncertainty. If they had enacted the augmented estate, at least the law
would be clear. Now, in SC, people don’t know what the law is.
SCOPE OF §2-205Problem, pg. 548 –
a) Figure out the augmented estate:
2-204: 2.5 million
2-205: Did she make any non-probate transfers to others that would be included in the augmented
estate? Yes, the 200K revocable trust (valued at death), the summer home (110K), Totten trust
(100K) and a life insurance policy that benefited C for 90k. This totaled 500K.
2-206: Did she make any non-probate transfers to the surviving spouse? Yes, she had a life
insurance policy for 200K in which Fred was the beneficiary
2-207: H’s (Hector, but prof calls him Fred) assets are 800K
---------------------------------------Total augmented estate: 4 million
b) Elective share percentage [total years of marriage  over ten but less than 11 (add all years of
marriage)]: 30% …
c) Elective share amount = 1.2 million
d) 2-209(a): Here we must consider the voluntary transfers left to Fred. Here, she left him 100K in
the will along with a 200K life insurance policy. So, this totals 300K
e) 2-209(a)(2): 480K
1.2 million
-300K
-420K
------2-209(b) = 420K [This is the amount of assets Fred is entitled to]  These assets are “equitably
apportioned.” Thus, every one of the decedent’s transferees must bear the burden of this and
therefore all of them must bear the burden of a reduced share. How do you do that? Divide (create
a fraction):
420
------ = 14.48%
Total the 2-204 and 2-205 numbers (minus the transfer to Hector)

2.9 million
Concept (b): Other Restrictions on Freedom of Disposition –

Protection Against Unintentional Disinheritance:
1. “Pretermitted” children: Children may be intentionally disinherited in every American state
except Louisiana. Unintentional disinheritance, however, is another matter. Nearly all states have
statutes, called “pretermitted-heir” statutes, which grant children a measure of protection from
being unintentionally disinherited. Types:
a) Pre-1990 §2-302: If the decedent’s will left all or substantially all of his or her estate to the
SS, then the child does not receive an intestate share on the assumption that the spouse will
take care of the child, especially when the child is a minor.
b) 1990 UPC §2-302: The 1990 Codes adds the idea that if the couple had 1 child when the
decedent died, and another child later, then the two children split equally the devise left to the
first child. This makes the first child’s bequest take the form of a class gift.
 Side note: [Azcunce v. Estate of Azcunce] Do not use the doctrine of “republication by
codicil” to defeat the intention of the testator.
2. Unintentionally Omitted Spouse: The UPC, in section §2-301 in the pre-1990 code, statutorily
protects a surviving spouse from unintentional disinheritance by a pre-marital will. As elective
share statutes came to replace dower and curtesy, the elective share was thought to provide
sufficient protection in the situation of a premarital will. The function of the pre-1990 code was to
reduce the frequency of elective shares, and provide a share for the SS more related to the amount
49
the decedent would probably have wanted to give, had he gotten around to revising the premarital
will. The statute, however, had two problems:
a) Vague “fail” standard: §2-301(a) allowed election only “if a will is executed before the
marriage and it ‘fails’ to provide for the surviving spouse.” It grew difficult to determine on
what basis a pre-marital bequest “fails” to provide for the surviving spouse.
b) Bequest order: §2-301(b) said that in satisfying that share, the other devises in the will abate
according to the ordinary rules of abatement. The rules of abatement take money (1) in
accordance with the law of intestacy, (2) a will’s residuary clause, (3) general bequests, and
(4) specific bequests. The theory is that you want to protect the specific bequests. This grew
problematic when distributing bequests.
Application (b):
1.
PROTECTION AGAINST UNINTENTIONAL DISINHERITANCE Problems, pg. 584 –
a) Widower A who, after his wife’s death, marries B who was a friend beforehand. A executed a premarital will, which gave 50K to B. A then dies. Has this pre-marital will “failed” to provide for the
SS? On the one hand, there is a devise so the answer might be no. On the other hand, the devise
may not provide for B in her new role as SS. Courts have said that the will can fail to provide for
the SS even though it has a bequest in there for the person who turns out to be the SS. The theory
is that it fails to provide for the individual in the capacity of SS. If the will, however, was executed
in contemplation of marriage, then you would 2-301 pre-1990 will give nothing new because we
are trying to protect against unintentional disinheritances.
 Prof: This is a close call as to whether the 50K is regarded as a satisfactory amount. Now,
consider a scenario in which the 50K is considered not to be enough. Then, the rules of
abatement come in…50K to B, 100K to S, residuary 350K to X and Y. In the pre-1990 code,
we are told to look to intestacy law in which the SS would take 50% of the estate. To fulfill
this, we take from the residuary clause, which means that 500K/2 = 250K. Then 250K + 50K
= 300K for SS and the kids are left with little.
 If this were a 1990 Code case: It says that any bequest in the will that goes to the person who
turns out to be SS satisfies the total SS amount. Also, the 1990 UPC does not have the “fails
to provide” language. The 1990 UPC says simply that the SS is entitled to the intestate share
(it must come from the part of the estate that is not bequeathed to children from a prior
marriage). This provision flips around the protection by putting the kids first. Now, in this
scenario, the 100K bequeath to S would have to bear the burden of satisfying the SS amount
because the SS gets the intestate share for the portion of the estate that does not go to the
children from the prior marriage. This is 100K plus ½ of whatever is left over. So, she has
50K so take another 50K from S. Then, one half of what is left over is ½ of S’s 50K which =
25K. So, SS takes a total of 125K, while leaving S with 25K.
 Bottom line for 1990 Code: B gets 125K, but that is made up of (1) the 50K and (2) 75K out
of S’s bequeath. B gets 125K, S gets 25K, and X and Y are protected.
b) This problem represents a more frequent occurrence than problem 1. Here, we are talking about
two people who get together later in life and both had children from a prior marriage. The husband
executed a will during his previous marriage. Under the 1990 UPC, W-2 is only entitled to the
portion of the estate that is not given to the children from the prior marriage. She could also take
the elective share, but it probably won't be much because they have not been married for very
long.
 Why is the 1990 UPC set up this way to really diminish what the SS would take? It is targeted
toward the late in life marriage. One of the purposes of the elective share schedule is to reduce
the amount of the elective share for late in life marriages.
Chapter 13: Trusts – Formation and Formality
Concept (a): Introduction –

Background: A trust is an arrangement by which a fiduciary, the trustee(s), holds legal title to property
for the benefit of one or more others, the beneficiaries, who hold the beneficial title to the trust
property. For example, a parent might provide by will for her estate to pass in trust for the benefit of a
50
child until the child reaches a specific age, meanwhile managing the trust property for the child’s
benefit.

Distinguishing Trusts: Although trusts exhibit characteristics of contracts, agencies, deeds, wills, coownership (such as J/T or a life estate followed by a remainder interest), and life insurance, they are
unlike all other legal entities in three essential respects:
1. Bifurcation of Title: The trustee holds legal title; the beneficiaries hold equitable title or the
beneficial interest.
2. Fiduciary Duty: Imposed on the trustee is the fiduciary duty of undivided loyalty to the
beneficiaries, which ensures the protection of the beneficial interest. The duty of a fiduciary is the
highest recognized at CL. The trustee is barred from acting for his own benefit or from engaging
in any activity that is not for the exclusive benefit of the trust and its beneficiaries. Even the
appearance of impropriety, such as self-dealing (even if at terms that are entirely fair), may result
in discharge, surcharge, or other liability to the trustee. A trust could not exist in the absence of
this fiduciary relation.
3. Enforceability: Unlike other relations in which any party may sue for enforcement, only the
beneficiaries of a trust may engage the trustee in litigation to enforce the trust. Except to challenge
its validity, or perhaps on contract grounds, no person who is not a beneficiary (not even the
settlor) may enforce a trust. As a result, trust litigation, which most often involves either drafting
glitches or the allegation of breach, falls into three categories:
a) Beneficiaries sue: Beneficiaries sue to enforce, to rectify any breach of fiduciary duty, or for
accountings to assess whether there has been any breach.
b) Trustees sue: Trustees may sue to have accounts approved (protecting them from liability for
any act revealed therein), to have the document construed when unclear or subject to
conflicting claims (often due to deficiencies that may generate malpractice exposure to the
drafting attorney), or to resign (a right that does not exist unless granted by the trust
document).
c) Outsiders sue: Outsiders may sue to invalidate the trust, asserting defects in creation or
continued existence (such as a creditor who wants to reach the trust corpus to satisfy its claim)
or on policy grounds (such as a SS who seeks to reach trust assets for elective share
purposes).

Historical Development of Trusts: The trust had its origins in the 1400s when it was known as a “use.”
Active uses, as to which the trustee had no management responsibilities, were used to avoid feudal
duties, circumvent property ownership and transfer limits, evade creditors, or minimize dower rights.

Estate-planning uses of trusts: Trusts allow imposition of dead hand controls over future use of
property, allowing the settlor, for example, to defer beneficiaries’ enjoyment of property, to establish
transmission that ensures accomplishment (or avoidance) of certain uses, or to regard or punish certain
conduct. This trust use is a non-tax objective.
 Note: [Self-declared trust] Settlors can, and usually do, create revocable trusts for their own
benefit. The settlor is often the sole beneficiary during his life. After the settlor’s death, the trust
property is administered for, and sooner or later distributed to, beneficiaries named by the settlor
in the trust instrument.

Basic Definitions: What terminology must you know?
1. Settlor – the person who creates the trust
2. Trustee – the individual who manages the assets of the trust. This individual takes legal title.
3. Beneficiaries – these are the individuals who take the assets of the trust and they have equitable
trust. Typically, there are multiple beneficiaries such as the “income beneficiary” or the
“remainder beneficiary.”
4. Testamentary Trust – A trust created in a will that is typically given via residuary clause. In
order for this type of trust to be valid, the will must have been executed in accordance with the
requisite formalities and the testator must have had capacity.
51
Concept (b): Formation of a trust –

Requirements for creating a trust: [Remember the trust relationship satisfies the present transfer test
through the “bifurcation” of title] –
1. The trust must contain property: The law requires that there be an identifiable trust property, or
res, as it is sometimes called to create a “corpus.” A “corpus” is the trust principle for which a
trustee is responsible. Any legally recognized property interest that is transferable can be the
subject matter of a trust. Note that the settlor need not place much property in the trust. For
instance, pinning a $20 bill on the trust document satisfies this requirement (settlor can deposit
more property later). Generally, this requirement does not pose any problems.
 Limitation: [Brainard v. Commissioner] An interest that has not come into existence cannot be
held in trust.
2. Intent to create a trust: A trust cannot be created unless there is a proper manifestation of intent by
a competent settlor.
a) How must this intent be manifested:
i.
Testamentary trust: The manifestation of intent must appear in a valid will.
ii.
Inter vivos trust of land: The Statute of Frauds usually requires a written instrument.
iii.
Other inter vivos trusts: The settlor’s intent to create a trust relationship may be
manifested orally, in writing, or by conduct.
 Note: [Matter of Brown] In order to create the trust, the settlor need not notify
the beneficiary of the creation or deliver anything to him. Thus, the beneficiaries
may be unaware of the fact that there has been a trust created in their name.
b) Questions of Intent:
i.
Incomplete gift vs. Declaration of Trust – [Farmer’s LoanRichards v. Delbridge]
An imperfect gift will not be salvaged by attributing to the would-be donor a
fictitious intent to create a self-declared trust.
ii.
Precatory Language: [Colton v. Colton] These are words requesting, recommending,
or expressing a desire for action, but usually in a non-binding way. An example
might be “it is my wish and desire to…” The question is whether such language is
properly interpreted as satisfying the element of intent necessary to create a trust.
The Restatement 3rd provides, “unless a testator …manifests an intention to impose
enforceable duties on the transferee, the intention to create a trust is lacking and no
trust is created.”
 Standard: If the court finds that the imposition of legally enforceable duties was
intended, the trust is sometimes called a “precatory trust.” The distinction,
therefore, lies between imposing legally enforceable duties on the devisee and
merely seeking to impose a moral obligation on the devisee. When making this
determination, consider:
1. specific terms and the overall tenor of the words used
2. definiteness/indefiniteness of the property involved
3. ease/difficulty in ascertaining the possible beneficiaries and their interests
4. interest/motives and the nature/degree of concerns that may reasonably be
supposed to have influenced the transferor
5. financial situation, dependencies, and expectations of the parties
6. transferor’s prior conduct, statements, and relationships with respect to
possible trust beneficiaries
7. the personal and any fiduciary relationships between the
transferor/transferee
8. other dispositions the transferor is making or has made of his wealth
9. whether the result of construing the disposition as involving a trust or not
would be such as a person in the situation of the transferor would be likely
to desire.
 Summary: Although express language of duty is not always required
to create a valid trust, the more specific the language, the more likely it
is that a trust is imposed. Evaluate the whole instrument and the
situation of the testator at the time he framed the provisions.
52

Parties to a trust:
1. The trustee: [Adams v. Adams] An owner of property can create a trust either by declaring
himself or herself trustee for designated beneficiaries or by selecting another person as trustee and
transferring title to the property to that person. The requisite capacity to act as a trustee is that
capacity required to hold legal title to property. Generally, anyone who can hold legal title may be
a trustee. Once established, the principle relation with respect to the property is between the
trustee and the beneficiary, although the settlor may retain interest not only as beneficiary but also
through retention of various sorts of powers. The most common retention being a power to amend
or a power to revoke or both.
 Note: A trustee can always disclaim (refuse to accept) a trust, but once accepted, the trustee
can resign only with the permission of the appropriate court, or in accordance with the terms
of the trust, or with the consent of the beneficiaries if they are competent to give such consent.
2. The beneficiaries: The beneficiaries are the persons or entities for whose benefit property is held
in trust by the trustee(s). Although a trust may have as few as one beneficiary (as long as that
beneficiary is not the sole trustee), the great majority of trusts have multiple beneficiaries. A
beneficiary may have a present interest in a trust (e.g., “income toA for life”) or a future interest
(e.g., “remainder to B”); the interest may be vested or contingent (e.g., “but if B does not survive
A, remainder to C).
a) Unborn and unascertained beneficiaries: [Morsman v. Commissioner] A valid trust can be
created that includes unborn and unascertained persons among its beneficiaries. However,
without at least one beneficiary there can be no bifurcation of title and no one to whom the
trustee’s duties run. Thus, for a trust to be valid, there must be at least one living beneficiary
other than the trustee.
b) Merger: Beneficiary as trustee: A transfer of legal title to a person to hold in trust for himself
or herself, as sole beneficiary, doesn’t create a trust b/c it merges the legal and equitable titles.
Hence, the sole beneficiary cannot also be the trustee and therefore, to reiterate, a valid trust
must have at least one living beneficiary other than the trustee.
c) Indefinite beneficiaries: How is a beneficiary determined to be “definite”? Who is a definite
class of beneficiaries?
i.
Friends: The word “friends” generally creates an indefinite class because it would be
difficult, at the settlor’s death, to determine exactly how many and who are the
settlor’s friends.
ii.
Relatives: Under non-UPC systems, relatives are generally considered to be an
indefinite class. Under the UPC, however, it is presumed that your relatives are only
those close enough to you to be your heirs.
iii.
Neighbors: Because this does not impose any limit, this is likely an indefinite class.
iv.
Cousins: In some cases, this too under non-UPC systems, has been held invalid.
Listing “first cousins,” however, would be sufficiently definite.
 Note: This is an area where most often the terms describing the beneficiaries are
ambiguous. Thus, extrinsic evidence is allowed to clarify the ambiguity.
d) Third party selection of beneficiaries and powers of appointment:
i.
Settlor chooses beneficiaries: Often, the settlor will provide the language indicating
who he desires the beneficiaries of the trust to be. If so, the settlor must define the
beneficiaries under the trust “sufficient to enable the court to execute the trust.”
Beneficiaries are sufficiently “definite” when a list can be made of the people named
by the settlor.
ii.
Settlor allows the trustee to select beneficiaries: [Clark v. Campbell] A settlor can
provide that a trustee or other individual shall select certain beneficiaries. When the
settlor appoints such a third person to select the beneficiaries, the issue is what power
of appointment they received and whether that power is valid and exercisable:
1. Bank/Corporation/other lending institution Fiduciary: [Mandatory Power]
When a fiduciary is under a duty to select the beneficiaries of a trust form
amongst a class, the entire membership of the class must be definite and
ascertainable. Most often, when a bank or corporation is given the power to
appoint a class, this creates a mandatory power. This power imposes a duty on
53
2.
3.
the fiduciary to exercise the power in favor of the beneficiaries only when you
can list everyone who fits the terms of the trust. Thus, the standard for validity of
a mandatory power is relatively high.
Individual Fiduciary: [Mandatory/Discretionary Powertoughest case] Most
often, the fiduciary will be an individual and that individual will receive a
mandatory power. However, in rare circumstances the power given the fiduciary
is discretionary. Thus it is important to determine which power he was given.
Looking to the language of duty may resolve this. If present, language of duty
such as “I direct/I order/etc.” will instill in the fiduciary a mandatory power.
Individual Friend: [Discretionary Power] When the power of appointment is
given to an individual friend of the settlor, then the power will be a discretionary
one. To determine the validity of such a power, determine whether at least one
portion who fits the description of the terms of the trust can be listed. If so, the
power is valid and exercisable. However, the individual is not under a duty to
exercise the power. If he chooses to do so, he must act in a manner that benefits
the class.
Application (b):
1.
2.
3.
4.
5.
6.
7.
Property RequirementBrainard v. Commissioner –
Intent requirementFarmers’ Loan & Trust Co v. Winthrop
Precatory LanguageColton v. Colton
The trusteeAdams v. Adams
Unborn and unascertained beneficiariesMorsman v. Commissioner
Unborn and unascertained beneficiariesFolk v. Hughes
 Prof: It is much easier to meet the formalities of a trust than it is for a will. You only need to say
that there is a transfer of equitable title to a living beneficiary. If you have no trustee, the court will
appoint one.
Honorary trustsEstate of Searight – This case involved two gifts by a testator: (1) to his dog, Trixie,
to Florence, and (2) 1K in trust, from which Florence was to be paid $.75 per day for Trixie’s care. The
court upheld this trust. This was not held to be an honorary tryst because Trixie was given to a person
who was made the trust beneficiary and who therefore could sue to enforce the trust.
Concept (c): Formalities in the Creation of a Trust: The Unjust Enrichment Dilemma –

Background: There are two situations in which certain statutory formalities have created problems in
proving either trust intent or the substantive terms of the trust. One situation is where the subject matter
of the trust is land. If the trust is intended to become effective during the settlor’s lifetime, the SOF
requires a signed writing. The other situation involves trusts created at the settlor’s death through a
will. Testamentary trusts are subject to the requirements of the Statute of Wills. Although these
requirements are in place for evidentiary purposes, some situations may raise the issue of whether such
requirements should be overridden to avoid unjust enrichment.
1. Inter Vivos Trusts of Land: Statute of Frauds: [inter vivos transfers] To create a valid inter
vivos trust for land, the SOF requires a signed writing by settlor and beneficiary (or just settlor in
the case of a self-declared trust) identifying the property, the purposes, and the beneficiaries.
When a beneficiary claims an oral trust of land exists, the trustee can raise the SOF as means of
not enforcing the trust. He can, however, waive the SOF defense by enforcing the trust. The role
of extrinsic evidence:
a) Extrinsic evidence to prove settlor’s intent to create the trust: Absent fraud, duress, undue
influence, mistake, etc., extrinsic evidence is admissible only to the extent it does not
contradict any express terms of a trust; otherwise it cannot be used to vary the expressly stated
intent. If a signed writing was obtained by way of fraud, duress, undue influence, confidential
relationship + suspicious circumstances thereby unjustly benefiting the trustee, the court will
impose a constructive trust on the trustee in favor of the intended beneficiary (to whom an
oral promise was made) as a matter of equity.
 Note: [Person v. Pagnotta] A confidential relationship may be difficult to define because
it is an elastic concept. Generally, a confidential relationship is one involving the special
54
Note that an inter
vivos trust of
personalty may
be created orally.
2.
trust and confidence of the transferee, which may include a relative handling business
affairs, an attorney, or a financial advisor.
b) Extrinsic evidence regarding the terms of the writing: Extrinsic evidence is admissible to
resolve ambiguities in trust instruments.
Testamentary Trusts: Statute of Wills: [wills only] Generally, the Statute of Wills prohibits
extrinsic evidence used to alter or establish a testamentary trust of either realty or personalty. As a
result, a testamentary trust may be validly created only by the terms of a validly executed will.
Situations:
a) “Secret” Testamentary Trusts: Here, a testator’s will devises property to a devisee outright.
After the testator’s death, a P alleges that the devisee had promised, express or implied, the
testator that the devisee would hold the property for the benefit of the P. In this situation,
extrinsic evidence may be allowed to prove the alleged settlor’s intent to establish a trust (thus
precluding the recipient from being unjustly enriched) and died “in peace on the promise.”
Once this is allowed, all other extrinsic evidence need to prove terms, beneficiaries, etc. may
be admitted.
 Remedy: Secret trusts are enforced by way of a constructive trust for the intended
beneficiaries.
b) “Partially” secret testamentary trusts: This is a situation where a testator’s will expressly
indicates that a devisee is to hold the devised property in trust, but neglects to state the
substantive terms of the trust, including the intended beneficiary. In this case, the intent to
create a trust is clear without the need for extrinsic evidence, thus no extrinsic is allowed to
show intent or to prevent the recipient from being unjustly enriched.
 Remedy: In this case, the residue returns to the decedent’s heirs by resulting trust.
Chapter 14: Spendthrift, Discretionary, and Support Trusts: A Question of
Control
Concept (a): Restraining Alienability of Beneficial Interest/Shielding Beneficial Interest from
Creditors –

Background: Once a trust has been formed, should the law ensure that it will endure or should the law
enable the beneficiaries undo the trust against the wishes of the settlor? Where the preferences of
present beneficiaries conflict with those expressed by the donor, the law can’t simultaneously respect
the autonomy of both and must choose between them. The conflict between the donor’s wishes and the
preferences of current trust beneficiaries arises primarily in the context of three types of trusts:
spendthrift, discretionary, and support.
1. Spendthrift Trusts: [Broadway Bank v. Adams] In the case of this type of trust, a disabling
restraint has been imposed on the alienation of the beneficiaries’ equitable interests. A disabling
restraint on alienation is one that purports to nullify any attempted assignment by a beneficiary of
his or her equitable interest and any attempted attachment of a beneficiary’s interest by the
beneficiary’s creditors. Thus, this purports to limit both voluntary and involuntary alienation. A
spendthrift may have either an involuntary limitation or a voluntary limitation or both.
 Note: [Estate of Vought] A settlor also has the power to make inalienable a principle
remainder limited on an entrusted life estate.
 Limitation: [Moffat v. Lynch] Although the beneficiary is restrained from alienating his
interest, he may nonetheless contract to give someone else the proceeds of the trust once
he receives them. The theory allowing this is that once the income or principle are
transferred to the beneficiary, the are attachable by creditors.
2. Discretionary Trusts: In the case of a discretionary trust, the trustee is granted discretion to pay
or apply for the benefit of the beneficiary only so much of the income and principle or either as the
trustee sees fit.
a) Range of the Trustee’s Discretion: By conferring discretion on a trustee, a settlor manifests an
intention to trust the trustee’s judgement. A court will not substitute its judgement for that of
the trustee, unless the trustee abuses that trust. But, what constitutes “abuse of discretion?”
55

3.
4.
5.
Standard: The trustee has the power, not only over the income of the trust, but also to
invade the corpus of the trust, and as long as he has adequate reasons for his actions, they
will not be questioned.
b) Alienability: If a trust is a true discretionary trust, as where the trust instrument gives the
trustee discretion, or “uncontrolled” or “absolute” discretion, to pay or not to pay income to
principle to the beneficiary, the beneficiary can’t compel the trustee to pay, nor can an
assignee or creditor of the beneficiary compel the trustee to pay, any part of the income or
principle to him. Thus, a true discretionary trust creates an entirely inalienable interest.
 Note: [Protective trusts] A protective trust gives the beneficiary a right to the income, but
provides that, upon attempted alienation, voluntary or involuntary, the beneficiary’s right
is forfeited and the trust becomes a discretionary trust.
 Limitation: A single beneficiary trust
Pure-support trusts/discretionary support trusts: In the case of a support trust, the trustee is
directed to pay to or apply for the benefit of the beneficiary so much of the income and principle
or either as is necessary for the education and support of the beneficiary.
a) Types of support trusts:
i.
Pure-Support Trust: A pure support trust is mandatory, not discretionary. The trustee
is required to pay out, and the beneficiary is entitled to receive (or have applied), so
much of the income and principal or either as is necessary for the beneficiary’s
support. This is measured by an ascertainable, objective standard.
ii.
Discretionary-support trusts: A discretionary-support trust is a hybrid, containing
elements of pure discretionary and pure support trusts. The trustee is authorized or
directed to pay the beneficiary so much of the income and principle, or either, as the
trustee, in his sole and absolute discretion determines is necessary for the
beneficiary’s support.
b) Range of the Trustee’s Discretion: Unlike the purely discretionary trust, which has no
ascertainable standard to measure the trustee’s discretion, the trustee in a support trust can
only disburse assets sufficient to enable the beneficiary to maintain his or her accustomed
standard of living.
c) Alienability: If the settlor is not the beneficiary, then the beneficiary’s interest in the support
trust is inalienable. Like a discretionary trust, the trustee in a support trust must have the
discretion to pay for the beneficiary’s support. Thus it would not be a support trust, under
strict trust law, to give the entire amount of money up front to the beneficiary.
Self-settled spendthrift, discretionary, and support trusts: Generally, a settlor may not create a
spendthrift, discretionary, or support trust for his own benefit. Although a such a self-settled trusts
is not void, the settlor’s interest in a spendthrift trust is alienable and can be reached by creditors
and the maximum amount that the trustee can pay the settlor for his or her own benefit in a support
or discretionary trust is alienable and can be reached by creditors. The rationale is that people
should not be able to immunize their assets for from the reach of creditors.
 Note: There are asset protection statutes available in Alaska and in Delaware. The new
uniform trust code, however, does not allow this and tries to push away from asset protection
by codifying the CL prohibition against unilateral asset protection.
Special claimants. [Hurley v. Hurley] The Restatement 2nd of Trusts, adopted in the Hurley
decision, provides that there are certain types of creditors that can attach the interests of support
trusts and spendthrift trusts. However, discretionary trusts are not included, because the theory
behind a discretionary trust is that the beneficiary is not considered to have a real property interest.
There are four “preferred creditors” under this exception:
1. Alimony
2. Necessary services rendered to the beneficiary
3. Services rendered to preserve the interest of the beneficiary
4. Services rendered by the US or a state to satisfy a claim against the beneficiary
 Note: This is a necessity based policy rule that allows involuntary creditors to reach
certain assets on the basis of necessity.
Concept (b): Termination or Modification by the Beneficiaries –
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
Background: The question in this area is, to what extent should the law enable the beneficiaries to undo
or alter the trust against he previously stated or implied wishes of the settlor?
1. English Rule: As an extremely liberal rule, the terms of a trust could be modified or the trustee
could be terminated if all of the beneficiaries consented.
2. American Rule: [Claflin v. Claflin] In order for the beneficiaries to modify/terminate the trust, the
stricter American rule requires (a) the (competent) consent of the beneficiaries, and (b) premature
termination (or modification) will not defeat a “material purpose” of the trust.
a) “Material Purpose”: Trusts that contain a “material purpose,” precluding their premature
termination r modification, are sometimes called indestructible trusts. What type of trust has a
“material purpose”? As a general rule, the following trusts are considered to contain a
“material purpose”:
i.
Postponement of Enjoyment Trusts: Under these trusts, the settlor wants the
beneficiary to have the trust property and its income, but not until the beneficiary
reaches a specified age, a certain period of time has elapsed, or a certain date.
Obviously, the settlor’s purpose (“material purpose”) would be defeated if the
beneficiary were permitted to obtain the trust property earlier.
ii.
Spendthrift Trusts: Recent case law has held that this type of trust contains a material
purpose. If this trend continues, however, then there few trusts will be without a
material purpose because 90% of all trusts in America are spendthrift trust.
 Contra: The Uniform Trust Code states that spendthrift trusts are “not presumed
to have a material purpose.” Thus, the burden of proof is shifts to determine
whether the spendthrift clause was included in the trusts purposely. In doing so,
the Restatement 3rd provides that a court should not find that a trust has a
material purpose just from the clause. Rather, it should be a case by case basis
evaluating more than just specific language.
iii.
Support Trusts
iv.
Discretionary Trusts
 Extension: [Schmucker v.Walker] Any trust allowing the trustee to sell the
property within the trust constitutes a “material” purpose, thereby making it
indestructible. This is on the fringe of defining a “material purpose.”
b) Beneficiaries’ Consent: Premature termination requires the consent of all of the beneficiaries,
none of whom is under legal incapacity. The following are the major issues raised by
beneficiary consent:
i.
Settlor’s right as sole beneficiary to terminate: When a settlor is the sole beneficiary
of a trust, he can terminate that trust, despite a trust provision indicating that the trust
is irrevocable.
ii.
Consent on behalf of minors, incapacitated persons, or persons under disability: If
one or more of the beneficiaries is under an incapacity, the others cannot compel the
termination of the trust. Some courts have held, however, that consent can be given
on the beneficiary’s behalf by the guardian of the incapacitated beneficiary’s
property or the incapacitate beneficiary’s conservator.
iii.
Unascertained beneficiaries (unborn, unadopted, etc.): [Hatch v. Riggs National
Bank] As a general rule, a guardian ad litem can not represent the unborn
beneficiary’s interest. The Hatch court, however, took the opposite position, stating
that a guardian ad litem can consent to a trust termination or modification that is in
the best interests of the beneficiary.
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