Wills
I. Introduction
A. Historical Terms
i.
ii.
iii.
iv.
v.
In many jurisdictions they have been abolished, but whatever, for testacy it is
still good so use them correctly
2 Types of Intestacy
a. Heir ---- Those who take real property under the applicable statue
b. Next of Kin/Distributee --- Those who take personal property
Testacy Terms
a. Devisee ---- Taker of real property under the will
b. Legatee ---- Taker of personal property under the will
c. Abatement ---- Personal property is consumed first to pay creditors of
state before the real property is so used.
d. Devise ---- transfer or real property under a will
e. Legacy ---- transfer of money under a will
f. Bequest --- transfer of personalty under a will.
Ancestors v/ Descendant
a. Collaterals ---- Those people related to the person in question by one
or more common ancestor.
Probate or Administration
a. Probate ---- often used interchangedly w/ administration, but
technically refers strictly to the process of determining the VALIDITY
of a will. Only occurs where there is a will. Preliminary step in
administration
b. Administration ---- Occurs even where a person dies intestate
c. Personal Representative/Executor ---- Person diesignated under the
will as the personal rep of decedent’s estate. During the process of
administration the title to the assets transfers to the administrator.
When person dies intestate the court will appoint one
B. Process of Administration
i.
ii.
iii.
iv.
Have to prove genuineness of the will
Collect assets of decedent’s estate
Pay off creditors and taxes
Ditributed balance to person’s designated under the will or to his intestate
takers
C. 3 Critical Concepts in Wills Law
i.
ii.
iii.
A will has no legal significance when executed. The mere act of a prospective
testator in executing a will does not affect her property interest
A will is revocable. Only instrument purporting to be a will of legal effect is
the last valid and unrevoked will at T’s death.
Will is prospective. This has an impact effect in the manner in which a will is
drafted. Gives rise to the needs of a residuary clause.
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D. Dispositive Terms
i.
ii.
iii.
Specific Decvise/Bequest
a. E.g., stock, jewelry, black acre
b. Specific way to provide for a person.
c. If he property isn’t around at death then clause is a nullity and courts
under the doctrine of redemption do not trace the profits
General/Pecuniary Bequest
a. Gift of specifically designated amount of money which isnot tied to
any specific property.
b. If there isn’t adequate cash in the estate to satisfy then executor must
sell other property in the estate to provide necessary funds.
Residuary Clause
a. Disposes all estate that hasn’t been disposed of otherwise.
b. Anything for which there isn’t a specific or pecuniary devise goes to
the residue.
II. Intestate Succession and Related
Doctrines
A. Who are Takers
i.
ii.
iii.
iv.
v.
vi.
Spouse ----- Codes in general give spouse a larger share than is normally the
case. Only person not related by blood who is an heir.
Issue---- Descendant’s. Whole line of vertical descent. Remember, issue, ehir,
and children are not coterminous. The whole vertical stock is what is denoted
by the term issue
CL Dower v. Intestate Statues
a. Under IS the spouse normally take a fixed amount (100 or 200k) and
then ½ or ¾ of the residue
b. Under CL dower the spouse usually received 1/3 while children
received 2/3.
Who can Take
a. In order to take he must be alive at the time of death
b. You cannot be an heir while the prospective decedent is alive.
Table of Consanguity (p. 79)
a. UPC limits collateral inheritance to first 3 vertical lines
Escheat
a. State become the ultimate heir of an intestate where the applicable
statue place a limitation on the degree of closeness or relation that a
person must bera to the decendant.
b. UPC eliminates more remote relatives, no catch all “next-of-kin”
clause.
B. Representation
i.
Which Generation is the Root generation?
a. Do you initially divide at sibling level and pass to their each respective
progeny?
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ii.
iii.
iv.
v.
vi.
vii.
viii.
b. Do you divide it at the highest surviving level?
Per Capita v. Per Stirpes
Per Capita = “By the Head”
a. All issue of T living at the time of the termination would share equally
in the estate
b. Count up every living issue and everyone receives whatever
percentage there is
Per Stirpes = “By the Root”
a. Fund is divided into as many shares as there are children living plus
children who are dead who leave issue who are living at the time set
for distribution
b. No one takes in any line of descent if his or her parent is living
General Rule
a. Where an intestacy statue simply provides that “where decedent is not
survived by a spouse, but has issue, such estate should proceed to
issue” ….
1. This statue is not construed as requiring per capita
2. Always uses per stirpes
3. ONLY use per capita under express terms of a will or trust.
Type of Per Stirpes
a. English Per stirpes (literal or strict)
1. Divides level at children, irrespective of whether of not that
generational level has any living member
2. The fund is divided into as many shares as there are
children who survived to the date of distribution and
predeceased children who leave issue who survived to that
date
b. Modern Per Stirpes
1. Initial division of shares is made at the closest level where
one or more descendant’s are alive, but the shares of
deceased persons on that level are treated as one pot and
are dropped down and divided equally among their
representative.
2. Supposed to reflect intention of average decedent.
However, this is flawed b/c you are supposed to reflect this
intention where he had no such intention. If they had
intention they probably would have left a will
3. She believes it is not clear that Modern is better than
English
c. Per Capita at Each Generation
1. Divide per capita at each generation level and then you
drop the remainder down and divide per capita again.
2. Do this until you are done
Absent Provision How is will to be construed (per capita v per stirpes)
a. Courts apply preference that T meant per stirpes.
Drafting Lesson
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a. Say per stirpes
b. Say what kind of per stirpes. MUST DO THIS
C. Negative Disinheritance
i.
ii.
iii.
General Rule ---- It is impossible to disinherit someone from one’s estate.
In order to effect his outcome the T must rid himself of all his property in the
will. If there is anything left of the intestacy statue takes, and it might go to
this person.
UPC 2-101(b) turn CL on its head and makes no sense. Acts as if heir
disclaimed his intestate share.
D. Next of Kin: Methods for Computing Kinship Among
Collaterals
i.
ii.
iii.
Majority/Civil Law System
a. Degree of relationship of claimant to decedent is determined by the
sum of the following 2 figures
1. Number of steps from claimant to CLOSEST COMMON
ancestor of the claimant and the testator.
2. Number of steps from this common ancestor to T
b. Look at Table of Consanguinity
Parentelic System
a. Degree of closeness of claimant to decedent is not controlling
b. Intestate passes to Grandparents and their descendants, and if none
then to GGP, and if none to GGGP and so on and so forth
c. Closest stock has to be exhausted before you move to next stop
d. Issue of GGP however remote has priority over anyone in the line of
GGGP.
This only arises when ther is no claimant in a clas specifically provided for in
intestacy laws, then the property must pass to next of kin.
E. Advancement and Satisfaction
i.
Advancement
a. Overview
1. Typically one has to comply w/ will formalities, but the
doctrine of advancement allows to drastically change the
make-up of her will by oral statements repeated by
someone after death
2. Testamentary disposition w/o procedural requirements
necessary for most testamentary transfers
b. Application of Doctrine
1. If an intestate taker receives an IV gift from prospective
donor as an advancement of his intestate share, then this
gift will be taken out of his intestate share
2. In order for a gift by decedent to be deemed to be an
advancement, he must die wholly or partially intestate
(depending on statute)
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ii.
iii.
3. Under CL there was no written evidence requirement.
However, the UPC changed this
4. Advancement may be made to ALL HEIRS, however, in
most states it is only applicable to descendants.
5. Policy Reasons
i. Matter of donor’s intent at the time he made the IV
gift
c. Common Law Rebuttable Presumption
1. That donor intended the IV gift to be the donee’s share of
the intestate estate where the IV gift was substantial in
relation to the donor’s assets.
2. Majority Rule
i. Limited to Children who are intestate taker
3. Minority Rule
i. All heirs
d. Presumption of Advancement Requirements ---- CASES ARE
MADE ON THE PRESUMPTION
1. Substantiality
i. Only applies when IV Gift is substantial and a gift
is substantial where it is more than 10% of estate
ii. WHEN THE GIFT WAS MADE
2. Donee is CHILD or GRANDCHILD
i. Thus, even where statue allows advancement to any
descendant, the presumption will arise only w/ C
and GC.
Satisfaction of Legacy
a. Only applies to T who died testate
b. Corollary to Advancement
c. IMPORTANT RULE
1. Sequencing of Gift and Will is crucial
2. Cannot be a satisfaction of legacy where the gift precedes
the execution of the donor’s will.
3. Question of whether or not decedent intended the gift to be
a satisfaction of legacy arises in the first instance ONLY
where the gift was made subsequent to when the will was
executed
d. Satisfaction v. Advancement RULE --1. One must be a prospective testator for a “satisfaction” to
occur
2. One must be a prospective intestator for an “advancement”
to occur
Computation
a. Amount of advancement/satisfaction is treated as if it were part of
estate and is brought into hotchpt
b. Hotchpot
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iv.
v.
vi.
vii.
1. If the Donee received a gift that is larger than his intestate
share would have been he is not forced to give money back
to the estate
2. Remember this is an irrevocable IV gift
Majority Rule: Hotchpot and Wife
a. Majority Rule is that advancements are limited to Children and GC
b. Take out the wife’s share first
c. Then put the advancement into the hotchpot
d. Then divide, and give non-taking child his share and the taking child
gets remainder
Minority Rule: Hotchpot and Wife
a. Any heir, not just C and GC, can be recipient of advancement.
b. Remember, no presumption arises though. So there has to be some
contemporaneous indication.
c. Therefore a wife’s advancement woud be brough into hotchpot prior to
her share being taken out.
Specific Examples
a. Remember Intent if Key Here: At the time of the advancement could
the prospective testator have had the requisite specific intent to treath
each child equally
b. Therefore, where there is only 1 child at the time of the gift, T could
not have had the requisite intent to treat each child equally and thus
there will be no advancement.
c. If there is only 1 child there can be no advancement.
d. Education ---- there is no clear answer here as to whether paying for
post-secondary education is considered an advancement. Cases on
both sides.
e. Legal Obligation ---- Expense incurred b/c of legal obligation cannot
be an advancement.
f. Involuntary Expenses --- These are different and could be an
advancement.
g. INTENT IS WHAT GOVERNS
1. Ask whether decedent wanted this disparity to be corrected
at his death
2. Seems to Abravanel that where one child goes farther in
school than another , the decedent did not have the
intention of considering this as an IV gift
3. She thinks decedent derives some emotional benefit from
the educational success and it was thus not a gift
h. Gifts to GC
1. REMEMBER INTENT
2. If gift was made when GC’s parents were alive then T
could not have had requisite intent. This is b/c he could not
have anticipated the C to predecease the GC and that GC
would become heir
Questions to Ask
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a. What was decedent’s intention at the TIME THE GIFT WAS MADE
F. Assignment of Expectancy
i.
ii.
iii.
iv.
v.
Is an Expectancy and Interest in Propert
a. NO
b. It is too ephemeral and fleeing to be treated as an interest, in that it
may be destroyed in a variety of ways
1. Legatee may be changed by perspective decedent
2. Legacy of heir can be changed by execute of a will
3. Death of heir prior to death of source
Common Law Rule
a. Assignment of expectancy not recognized as a valid transfer in law
b. Result mandated by the fact that the law courts only recorded transfers
of interest in recognized property. Since an expectancy was not an
interest it was not recognized by courts of law.
Equity
a. This is provided for if it is supported by adequate consideration
b. But, such an agreement, at the moment it is entered into is not
effective as a present transfer of title
c. Instead, equity will construe assignment of an expectancy as a k to
transfer whenever the assignee becomes entitled to take (i.e, when the
source dies)
d. Consideration
1. Do not insists on equivalence of consideration but they do
require something more than mere or nominal
consideration
Assignment is Enforceable if …
a. Fair at the time it was made, in the light of all circumstances
b. Matter of adequacy of consideration for transfer of expectancy is
closely related to fraud upon the assignor
c. Basically, was it conscionable.
Notice to Ancestor
a. Majority Rule
1. No notice or consent is required for valid assignment
b. Minority Rule
1. Some courts regard this as a fraud upon the ancestor and
refuse to give it effect unless the ancestor has consented to
it.
2. Other minority say notice is sufficient
G. Managing a Minor’s Property
i.
Guardian
a. If both parents die while there child is a minor and their wills do not
designate a guardian, the court will appoint person from among the
nearest relatives
b. Guardian’s Power
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ii.
1. Determine where minor lives, how he is raised and
educated and when minor receives medical care
2. Terminates when minor reaches majority
c. Limitation
1. NO POWER to deal w/ minor’s property
Ways to Manage Minor’s Property
a. Guardianship of Property
1. Used to be very profitable for guardians as all they had to
do was support minor and could take excess property
2. however, a new kind of guardianship was created to look
out for property of child w/ supervision of court
3. Downfalls
i. Guardian had to account annually to court and this
is very burdensome. Cannot change investment w/o
court approval
ii. Can use only the income from the property to
support ward, cannot touch principal, unless court
approves
4. Anathema to estate planners. This is typically limited by
statue and is just unwieldy
b. Conservatorship
1. Has come to replace guardianships in many places.
2. Trust like
3. Appointment an dsupervision by court is still required, but
eh conservator has more flexible powers than a guardian,
and only one trip to the courthouse annually may be
necessary
4. These only exist in certain states, and if they don’t’ you
will be put in shity guardianship.
c. Custodianship
1. Property is transferred to person, custodian, for beneficiary
of the ward
2. Custodian has right to manage property and to reinvest it.
However, the custodian is a fiduciary and is subject to the
“standard of care.”
3. Elements
i. Not under supervision of court
ii. No accounting to court necessary
d. Trust
1. Most flexible
2. You would make the trust instrument read that it exists
until minor reaches age of majority
H. Renunciation/Disclaimer
i.
Renunciation
a. Renouncing heir has become definitely entitle to something
b. CL
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c.
d.
e.
f.
g.
h.
1. At CL intestate successor could not prevent title from
passing to him
2. Only testamentary gift was subject to being renounced
Statutory CL Reversed
1. In many jurisdictions the CL has been reversed.
Majority Rule
1. You are Presumed to have predeceased decedent and the
taker makes no transfer of the property
Presumption of Acceptance
1. In a will there is a presumption that the donee accepted the
bequest/devise.
2. Based on the upon the theory that the law does not allow
uncertainty regarding who owns property, it is deemed to
pass immediately.
Where Does Renounced Property Go?
1. If Disclaimer is Sole Legatee or Residual Taker it will pass
according to intestacy
2. If the disclaimer is just a recipient of a specific bequest, etc,
then the gift would go to the residual taker and then the
intestate taker
CL: No Residue of a Residue Rule
1. If A divides his property equally b/tw A, B and C and A
renounces, who takes?
2. Under CL the residuary taker would NOT take and it would
go to intestate takers.
3. Residue is the Catch All, but it can’t catch itself
4. THIS IS ON ITS WAY OUT
Accelerated
1. If S gives a life estate to B in trust and remainder to Y,
what happens if B renounces.
2. Majority Rule
i. Then the remainder would be accelerate to Y and
would be treated as an outright bequest to Y
3. Mechanical Application
i. Interest would pass to residuary taker or pass to T’s
heirs
I. Renunciation v. Assignment
i.
Conceptual Differences
a. Decedent’s heirs cannot renounce their intestate shares. Passes by
operation of law. However, you can assign and it goes right to them
b. Use to be tax consequences
c. States used to treat them differently, states used to treat renouncing
taker as having taken the interest and then made a transfer to next taker
and therefore was a taxable gift.
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ii.
d. To eliminate differences all states have enacted disclaimer legislation
which provides that disclaimant is treated as predeceasing the
decedent.
Creditors
a. Majority Rule ---- Creditors don’t touch
b. Only a problem in minority juris.
c. Has to do w/ fraud on creditor’s rights.
d. Minority, for creditors purposes, treats the renounced gift as if it
passed to taker and then to third hands
III. Grounds For Consent
A. Mental Capacity
i.
ii.
iii.
iv.
v.
Elements for Testamentary Capacity
a. Natural Objects of bounty
1. She see’s no difference b/tw actual knowledge and capacity
2. You either know who your husband is or you don’t, you
either know who your child is or you don’t.
b. Extent of One’s Property
1. Not necessary to have actual knowledge
c. Testamentary Plan
1. How is the testator going to dispose of estate
2. Don’t have to have actual knowledge
What is Requires
a. NOT actually knowledge ---- this would lead to endless litigation
b. JUST CAPACITY to understand
Capacity to Control One’s Person v. One’s Property
a. Courts have distinguished
b. Perspective T may actually have a guardian appointed regarding
property and still have capacity to execute valid will
c. Ability to manage one’s estate takes greater intelligence than to
execute a valid will
In re Estate of Wright
a. Demonstrate the de minimis standard for testamentary capacity
b. “Testamentary capacity cannot be destroyed by showing a few isolated
acts, foibles, idiosyncrasies, moral or mental irregularities or
departures from the normal unless they directly bear upon and
influenced the testamentary act.”
c. RULE --- All you need is lucid interval amongst your craziness
Deficiency v. Deranged
a. Mental Deficiency
1. Connotes the absence of ANY intellectual capacity on the
part of any party, whether brought about by genetic or
senility or otherwise
2. Consequence of finding of mental deficiency is that
WHOLE will is invalid
b. Mentally Deranged
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vii.
viii.
ix.
x.
xi.
xii.
1. Can still execute valid will so long as derangement is
particularized
2. A person who was mentally deranged is still capable of
executing valid will except insofar as will’s provisions
touch on the subject of derangement
In re Stritmatter
a. Demonstrates that insane delusions are generally related to the times in
which they are judged.
b. In this case it was feminism
c. Court looks to natural objects of her bounty and thinks her intent
should be there
In re Honigman
a. Insane Delusion Test
1. If a person persistently believes supposed facts, which have
no real existence except in his perverted imagination and
against all evidence and probability, and conducts himself,
however logically, upon the assumption of their existence,
he is, so far as they are concerned, under a morbid delusion.
Shifting Burden
a. Prima Facia case must be made by contestant.
b. once this is established it is up to proponent to rebut
c. There is a split on where the burden should be placed
Abravanel and Burden
a. Even if there is no challenge court has to satisfy itself that the decedent
possessed the requisite capacity
b. Therefore, that’s tantamount to presumption of sanity, the BOP rests
on the proponent of the will
c. Must be part of proponent’s prima facia case b/c ct will not probate
any will unless the testator possesses requisite capacity.
Causation Issue
a. Majority
1. Causation is a sin qua non
2. Without which there can be no invalidation
In re Hargrove’s Will
a. Sane v. Insane Delusion
1. even though T was mistaken, there was a sufficient factual
basis
2. I kind of believe even a sane person could hold that.
b. Insane delusion, where father believes that he could not produce
daughters.
c. Sane, sufficient basis for T believing kids were not his
Particularity of Insane Delusion
a. Only applies to that related to the delusion.
b. Hence, if you believe that aliens are going to take over the world, and
you give money to a friend that wouldn’t apply. However, if you gave
money to scientology that might apply
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xiii.
xiv.
c. Where delusion does not effect scheme it does not effect capacity
Dispositive v Administrative Provision
a. Merely b/c dispositive provision fails, does not mean the
administrative provision fials
Specific Striking of Individual Clause
a. Where delusion relates only to specific clause the court can strike that
clause and leave others
b. Typically the court will not strike anything more then necessary
B. Undue Influence
i.
ii.
iii.
iv.
v.
Overview
a. T’s will is invalid b/c he was under UI at the time of execution. This is
one step removed from duress. Connotes a form of psychological
pressure. Only difference b/tw UI and Duress is degree of pressure.
b. Does not mean T lacked requisite capacity, meant he was not acting as
a FREE AGENT.
c. Freedom to execute connotes one acting freely under one’s own
volition
Elements of UI
a. Testator was SUSCEPTIBLE to UI
b. Influencer had the disposition or MOTIVE to exercise UI
c. Influencer had the OPPORTUNITY to exercise UI
d. Disposition is RESULT of UI.
Lipper v. Weslow
a. TEST for UI
1. Whether such control was exercised over the mind of the
testatrix as to overcome her free agency and free will and to
substitute the will of another so as to cause the testatrix to
do what she would not otherwise have done but for such
control
b. Simply put, even though this was an unnatural disposition, there was
not enough circumstantial evidence to raise the question
No-Contest Clause
a. Majority Rule
1. Enforce clauses’ unless there is PC for the contest
b. Minority Rule
1. Courts enforce clauses unless the contestant alleges forgery
or subsequent revocation by a later will or codicil, or the
beneficiary is contesting a provision benefiting the drafter
of the will or any witness thereto
2. These juris believe ea PC rule encourages litigation and
shits balance unduly in favor of contestants.
Bequests to Attorneys
a. Preumption
1. Presumption of UI arises when an attorney-drafter receives
a legacy, except when the attorney is related to T
2. Can only be rebutted by C&C provided by the attorney
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vi.
vii.
viii.
ix.
x.
b. Where gift is substantial it is probably that the presumption will arise
c. Abravanel really doesn’t like this shit
Disinheritance Statemetns
a. Ways to Ensure will is valid if it goes to probate
b. Dangers With iT
1. Any factual recitation must be ABSOLUTELY correct.
Any mistake gives opposing counsel something to hammer.
What else were they mistaken about?
2. Testamentary Liable: Can’t defame people and such
3. Will is going public: don’t’ want to piss someone off, give
them reasons to contest will
Parties w/ Standing
a. Heirs
b. Beneficiaries to prior “unrevoked” will. One that has only been
revoked by subsequent instrument, not expressly.
c. Judgment Creditors
BOP
a. On Claimant
One Test
a. C&C that
1. there was a confidential relationship
2. Person enjoying such a relationship received bulk of estate
3. Decedent’s intellect was weakened
Other Test
a. Must be confidential relationship
b. + Something else (juris dependent)
1. Influence produced the will
2. Suspicious Circumstances
3. Person received bulk of estate
C. Fraud and Duress
i.
Fraud
a. Overview
1. Where the probate court cannot do justice by refusing
probate, the will may be probated and then a court w/
equity powers can impose a Constructive Trust on one or
more of the beneficiaries to remedy the unjust enrichment
caused by the fraud.”
b. Definitions
1. Fraud in the Inducement
i. Occurs when a person misrepresents facts, thereby
causing the testator to execute a will, to include a
particular provision in the wrongdoer’s factor, or to
refrain from executing or revoking a will
2. Fraud in the Execution
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ii.
i. Occurs when a person misrepresent the character or
contents of the instrument signed by the testator,
which does not in fact carry out T’s intent.
3. Doesn’t think this is a big deal
c. Causation Element
1. There are trick causation issued raised in fraud
d. Puckett v. Krida
1. Really hard to separate fraud from UI
2. Same Elements
i. Confidential Relationship
ii. Suspicious Circumstances
iii. All coupled together raised presumption of Fraud
and UI
e. Constructive Trust
1. Equitable Remedy that is primarily used for fraud, but
could be used from UI
2. Fraud/Duress Rectifying Trust
Duress
a. Previously listed under fraud
b. Definition
1. Donative transfer is procured by duress if the wrongdoer
threatened to perform or did perform a wrongful act that
coerced the donor into making a donative transfer that the
donor would not have otherwise made.
c. Latham v. Father Divine
1. Creates CT, this is the weird cult type shit
d. Constructive Trusts Continued
1. Pope v. Garret
2. Extends CT to innocent 3d parties who would otherwise be
unjust enriched by acts of others
3. Unjust enrichment scheme throughout.
D. Mistake
i.
ii.
iii.
In re Pavlinko’s Estate
a. “every will shall be in writing and signed by the testator at the end
thereof.’
b. Rule
1. The wills act would become meaningless, although well
intentioned, scrap of paper, and the door will be opened
wide to countless fraudulent claims which the Act
successfully bars
Prohibition of Re-Writing Wills by the Ct.
Scriviner’s Error (Drafter’s Error)
IV. Execution of Wills
A. Formalities
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i.
ii.
iii.
iv.
v.
vi.
vii.
Three Purposes/Function of Formalities
a. Cautionary or Ritual Function
b. Evidentiary Function
c. Protective Function
Langbein’s 4th Function
a. Channeling function
Remedies
a. Malpractice v. Constructive Trust
b. What is better and what is the policy reason for the choice?
c. Constructive Trust Remedy
1. This would be a better remedy here
2. you are not hurting anyone whom T intended to benefit
3. If lawyer’s malpractice then customers are going to have to
pay for costs
3 Basic Formalities
a. Writing
b. Signature by T
c. Attestation by witnesses
History of Formality Requiremetns
a. Statue of Fraudd (1677)(land)
1. Writing
2. Signature
3. Attestation and Subscription by 3 Witnesses
b. Wills Act (1837)
1. Writing
2. Signature/Subscription
3. 2 Witnesses
c. UPC 1990
1. Writing
2. Signature
3. 2 Witnesses
UPC More Modern Approach
a. Adopt least common demoninator and erases requirement that
witnesses be present at the same time.
b. Instead witnesses have to sign w/in a reasonable time after witnessing
T’s signature.
In re Groffman
a. Both witnesses not present at the same time
b. RULE --- Wills Act
1. Strict Compliance
2. Under wills act is not good unless both witnesses sign at
the same time
c. Attestation Clause
1. Recites all the facts of the due execution
d. Presence Defined
1. Line of Sight (Majority)
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viii.
ix.
x.
xi.
xii.
xiii.
i. IN England an dsome states
ii. Presence is only satisfied if the witness could, if he
chooses to, see the signature
2. Conscious Presence
i. Through sight, hearing or general consciousness of
event comprehends that the witness is in the act of
signing
What Procedures to Use
a. Most strict
Steven v. Casdorph
a. Proposition
1. Where a witness acknowledges her signature on a will in
the physical presence of the other subscribing witness, and
the T, then the will is properly witnessed
What is a Valid Signature
a. X is good in almost all juris if T is too weak to sign his or her name
b. “Pat” or “Mike” is valid if he intends this to be his signature. However
if Pat is only partial and he never finished “Patrick” then it ain’t good
Subscription
a. Requirement that T’s signature be on the BOTTOM of the will
Attestation Clause
a. No state requires one, but it can be completely merely by having the
witnesses sign at the bottom
b. However, it is important and considered malprative if not included b/c
it makes out a PRIMA FACIA case that the will was duly executed
even though the witness predeceased T
c. Moreover, it gives will proponents significant evidence to fend of will
contests
Notary
a. Not required but may be a better witness.
b. Can only be a witness if he was intended to be so
c. She does not understand why notarized wills are not permittable.
B. Recommended Method of Execution
i.
ii.
iii.
LOOK AT NOTES
Overview
a. Whereas it is a substantive requirement that the requisite number of
competent witnesses attest to proper execution … it is not essential to
validity of such will that such witnesses be available in probate
Where Witnesses Are Unavailable How Can Proponent Prove Validity
a. Does not mean will cannot be admitted to probate, since the proponent
can otherwise prove the wil was property executed
b. How …
c. Self-Proved Will
1. An affidavit signed that recites that requisite formalities
were complied w/
16
iv.
v.
vi.
2. In effect the affidavits are tantamount to a special
attestation clause.
3. Self-Proved Will may be admitted to probate w/o testimony
of subscribing witness. Affidavit is presented to probate
court in lieu of sworn testimony of witness and thereby
avoids any difficulty that may otherwise arise
4. UPC 2-504 authorized 2 kinds of Self-Proving affidavits
i. Combined or One-Step: Basically combines the
attestation and affidavit process
ii. Two-Step: Perform the attestation and then
separately do a self-proving affidavits
5. UPC 3-406 and Irrebutable Presumption
i. In these jurisdiction a will cannot be attack for
signature in a self-proved will
ii. In states that have not adopted this, the self-proved
will created a rebuttable presumption of due
execution
d. Attestation Claue ---- See Supra
1. Makes out prima facia case that will was duly executed
2. Thus will may be admitted to proate even though witnesses
do not remember of if they die
3. Can also be sued as impeachment devise if one of the
witnesses testifies that formalities were not followed.
e. Living Probate
1. Very expensive and very rare.
2. Doesn’t effect T’s ability to change will
Act of Initializing
a. In most jurist this is treated as signature
Codicil
a. Change that is made after will have been executed
b. Needs to be executed w/ all the same formalities
c. As much as a will as the will itself
Attestation Clause in Original Will and Codicil
a. Would not apply to the codicil.
C. Competency of Witness
i.
Independence of Witnesses
a. Old CL
1. Interested parties could not testify to the validity of a will.
Therefore, an interested person was incompetent to witness
as will. Under that approach the entire will fails
b. Parliament’s 1752 Purging Statue
1. Saves will by merely voiding the interested parties interest
c. Disclaimer Statute
1. is file w/in reasonable time if filed w/in 9 months of death.
d. American View
17
ii.
1. You can make someone an un-interested party by simply
voiding their interest in the will.
e. California in Parsons
1. Looks at interest of person at the time of execution.
2. Disinterest must exist at time will was executed.
f. Purging Statutes
1. Purging Statute
i. Purge witness only of the benefit of the witness
receives that exceeds the benefit the witness would
have received if the will had not been executed.
2. Purging Statue v. Disclaimer
i. Court applies purging statue before disclaimer b/c
the witnesses were interest the gifts were voided
and therefore they had nothing to disclaim.
ii. Hence disclaimer was nullity
iii. Interested party IMMEDIATELY has NO
INTEREST
3. UPC 2-506
i. Interested party doesn’t forfeit devise under the will
4. If a supernumerary witness is also an heir he will only be
purged of the excess of his legacy over his intestacy share
5. He is not motivated or interested if he would received less
under the will than he would in intestacy
g. Why not just use UI?
Supernumerary Witnesses
a. Supernumerary Legacy Witness
1. If that statute only requires 2 witnesses and 3 are present,
one of whom is an interested party, then the interested party
is considered a supernumerary and gets to keep his legacy
2. Basically you already have the requisite amount of
witnesses so the legacy is not needed
b. Supernumerary Legacy Witness Testimony and Predeceased Witness
1. In Cali no witness is prevented from testifying
2. The interested party’s interest is not void when “two other,
and disinterested” witnesses testify.
3. CONFLICT OF AUTHORITY
i. One cannot truly say actually say one is
supernumerary where one of the disinterested
witnesses predeceased T
ii. There is contra authority to the effect that where
legacy testifies he may be required to forfeit his
legacy
4. Abravanel
i. Has problem w/ contra authority b/c it encourages
legatee witnesses from taking the stand.
18
ii. The fact is that where both witnesses predecease T
and there is no supernumerary extrinsic evidence
must be used to prove the validity, and the
supernumerary ought to be allowed to keep the
legacy in such a situation.
c. Conflict w/ Supernumerary and Role of Witness
1. Is a person actually a supernumerary
2. This is a 2 part Question and the Answer Raises some
problems w/ Supernumerary Testimony
i. Substantive requirement that there be 2 disinterested
persons witnesses, but this person isn’t disinterested
so could he really be extra?
ii. Taking of supernumerary witness testimony could
arguably not adequately not perform this testimonial
function b/c his reliability is questioned by his
interest. Supernumerary’s interest is enhanced when
he gives up the gift.
d. Supernumerary Heir
1. If a supernumerary witness is also an heir he will only be
purged of the excess of his legacy over his intestacy share
2. He is not motivated or interested if he would received less
under the will than he would in intestacy
3. Likewise, if the supernumerary’s share is LESS than he
would take in intestacy then he is all good.
D. Curative Doctrines
i.
Substantial Compliance
a. Finding a formal defect should lead not to automatic invalidity but to
further inquiry
1. 1) Does doc express T’s intent
2. 2) Does it sufficiently approximate Wills Act formalities to
enable the ct. to conclude that it serves the purpose of the
Wills Act
b. UPC 2-503
1. Departs from tradition of invalidating wills that don’t’
strictly comply w/ formalities
2. In order to correct Mistake must be C&C that decedent
intended the document or writing to constitute …
i. The decedent’s will
ii. Partial or complete revocation of the will
iii. An addition or alteration to the will
iv. Partial or complete revival of his formerly revoked
will or a formerly revoked portion
c. In re Will of Ranney
1. Rule
i. “when formal defect occurs, proponent should
prove by clear and convincing evidence that the will
19
ii.
SUBSTANTIALLY COMPLIES w/ statutory
requirements
Dispensing Power: Very New Very few Juris
a. Dispenses w/ requirement when there is C&C that T intended it to be
the will
b. In re Estate of Hall
1. Routine application of dispensing power b/c there was no
evidence to think there was fraud present and no reason to
think this was anything other than T’s intent.
2. Witnesses could be entirely dispensed w/ if the evidence
that T intended the document to be his will was C&C
c. Dispensing power can dispense of witnesses, therefore otherwise
invalid holographic wills can be validated
E. Holographic Wills
i.
ii.
iii.
iv.
v.
Recognizing Juris
a. Only recognized in about half the states
b. Primarily in the south and west
Requirements
a. Written by T’s hand
b. Signed by T
Policy Issues
a. CBA in allowing holographic wills. Did T really intend this to be his
will, or was it a draft or a fleeting though?
b. They make up for the questions raised by looking at the fact that it was
handwritten and signed by T and this provides the sole justification
which is the evidentiary function of formalities.
c. Handwriting substitutes for attestation by witnesses.
d. But handwriting does little to substitute for fraud.
Conditioned Holographs
a. E.g., “if I should die on his trip” and he dies a few days after getting
back
b. There seems little reasons to suppose that T would want to favor one
set of family members if he dies on a trip but another set of family
members a few days after his rip concludes
Holographic Statutes
a. 1st Generation Statues (9 states)
1. Must be ENTIRELY a) written, b) signed, c) dated
2. In T’s handwriting
b. 2nd Generation Statutes (5 states)
1. UPC 1969
2. Only “signature” and “material provisions” of holograph
must be in T’s handwriting
3. Questions
i. What is material?
ii. How much can be typed
c. 3rd Generation Statutes (9 states)
20
vi.
vii.
viii.
ix.
1. “Material portions” must be in T’s handwriting
2. “Extrinsic evidence” allowed to establish testamentary
intent.
3. This basically further encourages courts to look at typed
words
Estate of Mulkins
a. Rule
1. In a 1st generation state the court will simply excise all
typed words and then determine out of what remains if a
will is present.
2. “Important thing is that the testamentary part of the will be
WHOLLY written by the testator and signed by him.”
b. Held that printed words weren’t essential in determining the will
c. She doesn’t like this case
d. Contra Authority
1. There is other authority that similar language is merely
meant as the designation of an executor and thus nontestamentary
Estate of Johnson
a. 2nd Generation case, but when you took away all the typed words there
was just names and number
b. “material provision” were not contained in handwritten part
Estate of Muder
a. 3rd Generation case, very little handwritten
b. Holding
1. “such handwritten provision may draw testamentary contest
from both printed and handwritten language on the form.”
2. Allows EE. Basically since you can use typed portion you
can fined intent.
MUDER IMPLICITLY OVERRULES JOHNSON
V. Revocation of Wills
A. Revocation by Writing or Physical Act
i.
Three Methods of Revocation
a. Revocation by physical act (tearing/mutilating) coupled w/ intent to
revoke instrument
1. If will is in house and it burns down, then no go b/c intent
not present
2. Act of testator by simply writing canceled on back pages of
will is NOT tantamount to revocation of instrument
3. to insure one’s objective accomplished, T should tear up
instrument and draw X’s all over the place. Make it
unquestionable
b. Revocation by Subsequent Instrument
1. Explicit or Implicit
21
ii.
iii.
c. Revocation by operation of law, due to change in circumstances of on
the part of T
1. Divorce
2. Birth of Child
3. Marriage
Revocation by Subsequent Instrument v. Physical Revocation
a. Abravanel’s Take
1. Revocation by subsequent instrument is advantageous b/c it
requires other formalities for execution of testamentary
instrument
2. No formalities w/ physical revocation
b. Contra
1. revocation by physical act does not give rise to substantial
possibility of post-mortem fraud
Mental Capacity
a. Revocation as a Testamentary Act
b. Requires same testamentary capacity as is necessary if T were to
execute will in the first place
c. Accordingly T may not revoke will once he has lost mental capacity
d. However, the loss of such capacity does not mean the will is revoke by
Operation of Law
iv.
B. Partial Physical Revocation (Not all states)
i.
ii.
iii.
iv.
v.
vi.
UPC 2-507 allows for physical revocation of a “will or any part thereof …”
E.g., you have a will and you cross out a section and write void
Presumption of T’s Revocation
a. If will was found in T’s possession (i.e., amongst his possessions)
b. There is a presumption that any cancellation (e.g., crossing out the
name of a residual taker) was done by T
In case Partial Revocation was done in pencifl
a. Problem?
b. Pencil is not permanent.
c. Did not constitute NON-HESITANT intent
If juris does not recognize partial physical revocation then the will AS
EXECUTED will be probated.
Holographic Revocation
a. Holographic CAN be amended by stirkign out parts, w/o re-writing the
whole will
b. When T makes a change he is simply making a NEW holograph
c. Need not be written on same day
Holographic Codicils to Amend Revocations
a. Ex. ------ T has valid will in which he bequests 10k to X. T Wants to
change it from 10 to 5. Crosses out 10k and write 5k and then signs it.
b. Should be no problem if a) you can partially revoke and b) holographic
wills are ok
22
vii.
c. However, in juris where partial by physical act is OK, then T’s
crossing out of 10k will be presumed to be conditional upon the
effectiveness of the substituted provision
d. Doctrine of Dependent Relative Revocation
1. If the change is not valid (e.g., holograph not signed or not
accepted in juris) then the will goes back to the original
2. Revocation is not considered valid
3. However, if there is not valid partial revocation then T may
have inadvertently increased bequest from10 to 5
e. ????????????????????????????????????????????????????????????
1. See p. 68
2. Does holographic codicil have to appear on separate piece
of paper?
Lost Executed Copy of Will
a. Theoretically a court can admit a will where the executed copy is
missing at T’s death
b. Proponents may prove contents by unexcuted copy
c. Rebuttable Presumption Proponent Must Rebut
1. rebuttable presumption of revocation by physical act arises
where there is evidence that an executed copy of the will
was in T’s possession and cannot be found at his death
2. Where an executed copy of the will is found among T’s
effects at death where such copy has been mutilated or
canceled.
d. If either of these presumption arises before proponents introduce
evidence, they would first have to rebut them
C. Revocation by Subsequent Instrument/ Inconsistency
i.
ii.
Two Kinds
a. Express Clause of Revocation
1. “I hereby revoked all wills and codicils heretofore made by
me.”
2. Where subsequent instrument contains revocation clause
this is effective to revoke prior clause
3. Revoking instrument need NOT be dispositive. It can
simply state I revoke my will of x/x/xxxx
b. Revocation by Inconsistency
1. Where T disposes of ALL of his property in an instrument,
ALL prior wills are revoked b/ they are inconsistent w/ the
instrument
2. Revocation by physical act prevents subsequent revivals
3. If subsequent will does not make a complete disposition it
is treated as a CODICIL.
Codicils, Wills and Revocation
a. Revocation of Codicil
1. A codicil only modifies the will it is based on.
2. Revocation of that codicil does not revoke the will
23
b. Revocation of Will as it Pertain to Codicil
1. Revocation of a will revokes all its codicils, unless T
intends the codicil to operate independently of the will
2. Dependency relationship b/tw codicil and the will.
Continued existence of codicil is dependent upon the
continued existence of the will, but not the other way
around
c. Revocation by Implication
1. If a subsequent instrument disposes of the ENTIRE
ESTATE, then the WHOLE prior will is revoked.
2. HOWEVER, courts do not look for revocation by
implication where subsequent instrument is a codicil
d. Cumulative Effect of Wills and Codicils
1. There is rebuttable presumption that gifts to the same
person in both the original will and its codicils are
independent of each other.
2. Wills and Codicils are to be construe cumulatively
D. Dependent Relative Revocation & Revival, Mistake
i.
Revival
a. 3 Types of Revival
1. English Common Law
i. Will 1 is not revoked unless Will 2 remains in effect
until T’s death
ii. Since a will does not operate until T’s death, will 2
is not legally effective during T’s life. Thereofore,
Will 1 was never really revoked until Will 2
becomes effective.
iii. This is not technically revival and she thinks that
his is conceptually right
2. Majority American
i. Assumes W2 revoked W1 at time of execution.
ii. Revocation of W2 WILL revive W1 where “the
testator’s intent may be shown from the
circumstance surrounding revocation of W2 or from
T’s contemporaneous or subsequent oral
declarations that W1 is to take effct
iii. Basically ------ What is T’s intent when he revokes
W2
3. Minority American
i. Revoked will CANNOT be revised absent reexecution w/ testamentary formalities or
republished by being referred to in a later duly
executed writing
b. Physical Revocation and UPC
24
ii.
iii.
1. UPC 2-509 says that if a subsequent will that WHOLLY
revokes a pervious will is itself revoke by PHYSICAL act,
the presumption is that the prior will REMAINS revoke
2. UPC 2-509(b) says a subsequent will that PARTIALLY
revokes previous will, is ITSELF revoked by physical act,
the presumption is that the previous will is REVIVED
Execution of Will By Mistake
a. Rule
1. If T executes a while operating under some MISTAKE OF
FACT and the provisions of the will are indeed effected by
his erroneous understanding of a material fact (e.g., name
of legatee and the name doesn’t effect will’s contents), then
a mistake of fact in the inducement does not invalidate the
will, notwithstanding the fact that it was executed under a
mistake.
2. MUST APPEAR ON THE FACE
b. In general is fair to say that a mistake of fact in the inducement does
not effect the validity or probate of a will.
c. Various Jurisdictional Caveats
1. Where mistake of fact does not appear on the face of the
will, such will may be denied admission to probate
2. A minority of juris, in addition to requiring mistake to
appear on the face of the instrument, what T would have
done absent the mistake must be on the face.
d. Impossibility of Compliance
1. For the more stringent juris it is almost impossible for T to
comply b/c he is working under a mistake in the first place
2. In short, it is rare that a will would be denied probate b/c of
mistake of fact in its execution
Dependent Relative Revocation (Revocation by Mistake)
a. Doctrine of presumptive intent, not actual intent. This is a conditional
doctrine. It basically says that the revocation was conditional upon X
being true, and to the extent X isn’t true, the revocation is not valid.
b. Rule
1. If T puports to revoke his will upon a mistake assumption
of law OR fact, the revocation is ineffective if T would not
have revoked his will had he known the truth
2. Example
i. If T would not have revoked his prior will if he
would have known that the new will was
ineffective, then court will cancel the revocation
and probate the destroyed will.
c. Problem w/ Intent?
1. If the new, invalid will, the revokes the prior will is
drastically different, then the court may not choose to
invoke this doctrine.
25
iv.
2. Why? It probably wasn’t T’s intent to have the previous
will take effect
d. What Would T want?
1. If T crosses out bequest, and puts in invalid holographic
codicil the court will be faced w/ either 25k or 0
2. B/tw these 2 extremes what is closer to T’s intention.
3. Court will look at the 2 wills and try to determine T’s intent
and then ask what would more likely parallel it, the
previous will, or intestacy?
e. Doctrine of Presumed Intention
1. ???????????????????????????????????????????????????/
2. Only applies where there is no hint in the document of T’s
intention.
Execution by Mistake v. DRR
a. Steps
1. 1st ask whether mistake was in a) execution or b) revocation
2. If mistake is in execution look to that doctrine
b. Hypo
1. T executes W1 to X
2. T believes X dies
3. T revokes W1 and executes W2 giving estate to y
c. Answer ----- T was working under mistake of fact in both revocation
and execution. However, revocation is effectively TRUMPED by
execution of new will. Therefore W2 is fully effective sine a will is not
subject to attack based on a mistake in its execution.
d. Answer 2 ----- however, if mistake of fact appears on the face of W2
then X would take
e. RULE
1. Where T revokes prior will by mistake, and subsequently
executes a valid will, which disposes of all of T’s property,
the latter will governs diposition of T’s property
2. May seem unfair, but that’s the rule
3. ??????????????????????????????????????????????????????
f. Mistake of Fact v. Law
1. W/ respect to mistake of fact, law does not distinguish b/tw
mistake of fact and mistake of law.
E. Republication by Codicil
i.
ii.
iii.
Rule
a. Codicil operates so as to “update the will.”
Ex.
a. Devise of land “now in my possession”
1. The “now” in the Will refers to the time of execution
2. This overrides preferred construction
3. A subsequently republished codicil will update the land to
the date of the codicil
2 Possibilities of Time Will is Contrued
26
iv.
a. Death of T
1. Most points it is beneficiarl to construe will at this point, so
this is the preferred construction
b. Execution
1. Only use this when one specifically told you to do so in the
will
Caveat
a. Will is not deemed to speak at time of codicil if to do so would defeat
T’s intent.
F. Incorporation by Reference
i.
ii.
iii.
iv.
Rule
a. By operation T is permitted to incorporate by reference (included in
the will) material which appears on a piece of paper, which was not
executed in accordance w/ requisite formalities
Requirements
a. External piece of paper must be in EXISTENCE at the time of the
execution of the will
b. Must be referred to in the will as being in existence
Codicils, Republication and Incorporate
a. A codicil will incorporate a piece of paper in existence after the
execution of the will but prior to execution of the codicil.
Mortmain Statutes
a. ????????????????????????????????????????????????????????????????
VI. Limitations Upon Testamentary Powers
A. Two Broad Classes of Restrictions
i.
ii.
Formal Restrictions
a. Formalities of Execution
b. Monetary or Tax limitations
Substantive Restrictions
a. Restrictions for protection of the family
b. Protections of Spouse
B. Rights of Surviving Spouse
i.
ii.
Overview ---a. Only member of family for whom law provides any real bite to the
protection against disinheritance is the surviving spouse
b. But, cross-reference notes to the notion of Fraud on Survivor’s Shrae.
Even protection afforded is uncertain due to decedent spouse’s ability
to deplete probate estate by IV Gifts
2 Methods to Protect Spouse
a. Common Law Dower
1. Foundation of protection
2. Only get life estate
3. Only in a few states
b. Forced/Elective Share
27
iii.
1. Product of 20th century
2. Fee interest
3. Everywhere except community property jurisdictions (SW
and W) or in Georgia, LA
Dower v. Forced Share (attributes)
a. Applicability to Which Assets?
1. Dower
i. Limited in application to REAL property
ii. Although this may have been good back when land
was money this ain’t shit now
2. Forced
i. Both reality and property
b. Does SS have interest in property before decedent’s death
1. Dower
i. YES they have an inchoate dower
2. Forced Share
i. No
c. Defeat by Spouse’s Unilateral Action
1. Dower
i. Survivign spouse during marriage has an interest in
the decedent spouses’ real property which cannot be
defeated by latter’s unilater action.
ii. Dower attached automatically by operation of law
to all land owned by Decedent in fee during the
marriage.
iii. In order for Dower to arise, a formal agreement
b/tw spouses is not needed
d. When Does the Interest Become Possessory
1. Dower
i. Not until death
ii. During prospective lifetime it is inchoate
2. Forced
i. Gives SS right to some fraction (typically 1/3) of
decedent spouses estate after the satisfaction of
creditor’s claims and taxes
e. Relationship to Creditors
1. Dower
i. Take prior to creditor’s claims
ii. SOLE REASON dower is around
2. Forced
i. Not protected against creditors
ii. SS could get nothing.
f. Transfer by Decedent During Marriage
1. Dower
i. Prospective decedent may transfer property subject,
but Dower is a cloud on the title.
28
ii. Transforee gets less than full title b/c Dower still
attaches and she cannot be deprived of interest,
unless survivor joins in conveyance and releases
Dower
iv.
Doctrine of Election
a. Effect
1. SS is given period of time (60 or 90 daya) from time of
death, in which survivor must decide whether he or she
wished to take pursuant to terms of the will, or whether he
or she wished to elect agasint the will pursuant to Dower or
Forced Share.
b. Factor in Advisign Client on Election
1. Age of client
2. Who are SS spouse’s issue and who are decedent’s issue
3. What type of interest would the money make
4. Spouse’s other income
5. etc.
c. Thin Trusts and Probate Avoidance
1. Forced share only applies to probate estate and doesn’t
apply to the multiplicity of will substitutes. Clearly this was
conceived in a time when the rise of non-probate estates
were not anticipated
2. However, in a thin trust, the courts will hold that even
though this is a valid property transfer it is still
testamentary in nature and part of probate estate.
3. Difference Approaches to Validity of IV Transfer
i. Property Approach ----- Under this the thin trust is
valid b/c it is not part of probate estate and these
courts are conceptually correct
ii. Fraud/Intent
iii. Illusory/Controll
iv. Equity
4. When is Trust Part of Estate
i. Sullivan v. Burkin: Rule
1. T retains general power of appointment
2. retains power of revocation
ii. Policy
1. SS should not fair worse than divorced
spouse in divorce schemes.
d. Forced Share Preclusion?
1. Despite the fact that the decedent provided handsomely for
the SS in will substitutes, this does not preclude her from
claiming her forced share
2. Forced share is a BLUNT INSTRUMENT
e. Predeceased Spouse and 2nd Marriage
29
v.
1. Decedent has as much obligation to 2nd wife as predeceased
wife.
2. ??????????????????????????????????????????????????????
Augmented Estates
a. UPC 2-202 (1969, 1/3 of juris)
b. Subjects a multiplicity of will substitutes to SS forced share
c. Includes property given to spouse and others that is either
1. revocable
2. in which D retains a life estate
d. UPC 2-201 (1990)
1. Wicked complicated
2. Provides for elective share based on how long marriage
lasts
3. Attempts community property scheme and SS will have to
incorporate her own property to divide up, but unlike
community property it does not attach property brought
into the marriage.
e. Community Propery
1. each dollar EARNED by either partner is split 50/5
f. Partnership Theory
1. takes all property owned by H or W, however acquired, and
puts it into pot
2. W is entitled to ½ the po
3. Ex
i. W has 40k
ii. H has 100k
iii. Pot is 140k
iv. W’s share is 70k, therefore w is entitled to 30k of H
4. Caveat
i. SS could be entitled to nothing if she is rich
ii. Does not have to pay back estate though
C. Pretermitted Child Statutes
i.
ii.
iii.
iv.
DO NOT CREATE FORCED SHARE
General Statute
a. If child is born AFTER execution of parents will and that child is not
provided for in the will, in ANY way, is not mentioned in ANY
capacity, nor expressly disinherited, that child is entitled to receive that
share in the parent’s estate that he would have taken INTESTATE
Two Caveats
a. Expressly disinherits child
b. Disposes substantially all of property to SS
Interpretation Variables
a. Who may be a pretermitted heir?
1. Specifically whether statute applies to GC as well as C
2. NY held that it may apply to C of deceased C
3. Abravanel doesn’t like this
30
v.
vi.
vii.
viii.
b. Whether statute applies to C who are alive at time of execution as well
as after-born?
1. Most statutes only apply to C
c. Conditions under which statute doe not operate
1. Provision or settlement, IV gift, in lieu of testatmentary
provision usually prevents C from claiming as pretermitted
heir.
2. Does non-testamentary provision, which is less than full
advancement or intestate share, still prevent statues
application?
d. Whether intention to disinherit person w/in class proteced by statue
must appear on the face of the will or whether disinheriting can be
established by parol
Calculation Methods
a. Traditional
1. T has 2 kids and a spouse
2. 150k estate
3. Under intestacy spouse would get 1/3 and kids would get
2/3
4. therefore the pretermitted child would get 1/3 of the 2/3 or
1/3 of 100k or 33k
5. This is drastically unfair if T’s will only give s a legacy of
10k to C1 and C2
6. Intent doesn’t matter much
b. New York Statute
1. Pretermitted child would receive equally in the pecuniary
bequest to the othe children
2. Therefore, if the bequest was 10k to C1 and 10k to C2 then
all three children would share equally in the 20k.
c. Virginia
1. Child would take lesser of
i. Intestate share
ii. Same amount as the devises or bequest to other
children
Weird Application
a. Some juris apply to living children at time of execution
b. This makes no sense whatsoever, b/c T’s intent was expressed in the
will.
c. However, many courts only apply when the unprovided for child was
unborn or missing at time of execution
Abatement
a. On who’s shares will C2’s share come from
1. Burden may fall on residue
2. Portion pro rate among all interest
Disinheritance
31
ix.
a. Remember any mentioning of that child precludes the application of
the doctrine.
Codicils and Pretermitted Children
a. A codicil can destroy a child’s pretermitted status b/c it republishes a
will.
b. B/C the child was alive at the republication the presumption will not
arise that he was forgotten or not intended.
c. However, should you republish it if would defeat T’s intent.
D. Lapsed Gifts
i.
ii.
Rule
a. When a legatee or devisee dies b/tw execution and death of T the
bequest is said to lapse and it fails and is treated as a nullity
b. Where contingency is not provided for it goes to the residue or to
intestacy if the will is poorly drafted.
Anti-Lapse Statutes
a. Nearly all states have enacted statues, which provide under certain
circumstances an alternative disposition w/ probable intention of
average take
VII. Interrelating Testamentary and Inter
Vivos Transactions
A. Probate Process
i.
ii.
iii.
When is it necessary to offer will for probate?
a. To Clear Title
1. It is clearly the case that at the point at which you introduce
publicly held sock or bonds or land you need to utilize the
title clearing function of probate such that at that point
nothing less than full probate would suffice
2. Stocks, Bonds, Reality
When don’t you have to?
a. Lots of things don’t’ need to be probate
1. E.g., car (transfer of title by affidavit is Ok)
b. Adult children who relinquish inheritance rights in favor of SS
c. Minority Children ---- even an informal administration of the esat
would be in order b/c particularly w/ non-wealthy estates you need to
preserves all the assts in tact. Don’t’ want to wast money on probate.
Questions
a. When is it that you really need to probate or when will something else
be sufficient?
b. What are the small claims statutes --- short statutes of limitation
against decedent’s estate.
B. Successive Probates
i.
ii.
There are statutes of limitation on challenging wills
Majority
32
iii.
a. No application of limitation as to when a will need be offered for
probate. Whenever a will comes to light it can be offered for probate
b. Introduction of 2nd will, after probate and after SOL has passed, is
NOT a contest on a prior will
c. Proponents are not challenging genuiness of earlier will or capacity,
ect.
d. The previous order was merely tentative that this is the last valid will
Reliance
a. Ex. 1
1. If, for example, bank paid out 10k from account according
to 1st will then it is determined that 2nd will is valid, then
bank can RELY on judicial determination
2. There was consideration here, remember that, so bank has
reliance
b. Ex. 2
1. Tract of land is given to X under W1
2. Tract of land is given to Y under new will
3. There can be no reliance b/c there was no consideration
here and they are obligated in as much as the devisee is a
donee and has thus parte w/ no consideration upon reliance
of probate courts final distribution
c. Ex. 3
1. By time W2 has come into effect black acre has been
transferred to BFP
2. BFP is protected b/c of reliance
3. Devisees, however, would be liable to estate for proceeds.
d. Ex. 4
1. Devisee has consumed proceeds of sale before W2 comes
to light.
2. Tough question. Hasn’t devisee relied on court’s decision.
e. Ex. 5
1. Devisee makes improvements to land.
2. There is a restitution element here in that latter taker would
be unjustly enriched or if the improvements dramatically
improve property he might be deemed to acquire it through
accession
3. However, devisee would still be liable for unimproved part
C. Will Substitutes
i.
Irrevocable Inter Vivos Trusts
a. Example
1. Settlor retains life interest and transfers to bank in trust to
pay income to settlor for life and upon his death pay
principal of trust to issue of settlor who survive him.
b. Is it testamentary?
1. NO, neither as legal conclusion or conceptually
33
ii.
iii.
iv.
v.
vi.
2. Not will like in effect. Will is said to be ambulatory and
revocable until death while this is not. Unlike a will the
irrevocable IV trust is operative to create contingent future
interest in the settlor’s issue which he cannot alter so that in
the context of an IV trust the settlor has placed some part of
the ownership of the property beyond his ability to control.
c. Moreover, an irrevocable trust is not testatmentary merely b/c the
settlor can touch the corpus. In short, settlor has some power
Revocable Inter Vivos Trusts
a. Testamentary?
1. Yes, BUT, this is a valid property transfer, there is a
remainder interest and there has been no compliance w/
formalities and is revocable
2. Helpful way to by-pass probate
b. General Rule
1. Beneficiary of trust need not known if trust exists
2. Beneficiary need not accept benefits, but before he does he
is presumed to have an interest
Totten/Savings Bank Trust
a. Settlor/trustee place fund in bank in trust for X
b. 3 interests retained by Settlor/Trustee
1. Life income
2. power to Revoke
3. Power to make additions to corpus
c. To the effect it is not revoke the savings account passes to the
beneficiary.
d. This is testamentary in effect b/c the settlor relinquishes no part of
ownership, no part of control or the trust assets during his life
e. But, it’s dispositive provision is enough to pass title upon death
f. Similar to Declaration of Trust
Life Insurance
a. Characteristics
1. Insured enter into k and designates beneficiary
2. may retain right to change beneficiary or terminate policy
and withdraw cash surrender
3. is in full control of person who buys policy w/ respect to
question of whether or not it will continue to exist and
designation of beneficiary
4. FULL CONTROL = Testamentary, remember that
Joint and Survivorship Property
Tenancy By Entirety
a. Less testamentary than joint tenancy
b. Why?
1. Any tenancy be entirety has retained no control over his ½
divided interest during life since he cannot compel judicial
severance
34
vii.
viii.
Joint Survivorship Bank Accounts
a. Both people have full right to all in the account, so a unilateral
withdrawal is OK
b. Theories for Upholding them
1. At tiem there has been a present gift of a special remainder
interest, present gift of balance in the account w/ possession
of donee postponed until death
2. K theory --- k relationship b/tw bank and donor upon which
the death of the donor trigger certain legal consequences
POD Accounts
a. Characteristics
1. Person places funds into account payable to child on
donor’s death
2. No question this is tantamount to a will
3. Statutory exception to requirements of wills act
D. Components of a Will
i.
ii.
iii.
Doctrine of Integration
a. Which pieces of paper make up the will?
1. All papers present at the time of execution intended to be
part of the will are integrated into the will
b. Application
1. usually presents few problems if you follow suggested
guideline for will drating
2. Very few cases on this
Republication by Codicil
a. Characteristics
1. Standard practice that after adding new shit to state that
earlier will is republished as of the date of codicil
2. Not only does this reinforce the other will, but under the
doctrine the will is treated as being re-executed.
3. Can cure potential defects, incorporation be reference
problems, but when applied mechanically I can thwart T’s
intent
Incorporation by Reference
a. Example
1. T executes will that “hereby incorporates by reference
another piece of papter.:
2. in so doing T attempts to include by dispositive provision
the terms on a piece of paper.
b. Requirements
1. Will evidences intention of incorporation
2. Writing identified w/ specificity
3. Writing in existence at time of execution
4. Writing referred to as being in existence at time of
execution
c. Problem
35
iv.
1. This is a departure from will act in a physical sense and has
not been executed in accordance w/ formalitites
d. Reasons
1. Secrecy
e. Effect
1. Once T has done this he cannot alter terms of document
and have changed terms be given effect w/o changing the
will itself
2. But you can’t incorporate papers that weren’t in existence
at the time of execution
f. Publicity
1. Majority Rule
i. If it is validly incorporated it is not deemed to be
part of the will which was offered for probate and
thus stays out of record
ii. Executor is still bound
2. Minority Rule
i. Paper becomes part of record
3. Abravanel ---- should be part of record, creditor and 3d
parties may be affected
g. Future Writing/ Existence at time of Execution
1. If the will uses future language, e.g., document to be found
w/ me at death, then the courts will not uphold this b/c
there was no manifestation in the will that he document
existed at the time of execution.
2. Policy that T should not be able to reserve for herself a
power to pass property by a document subsequently
prepared but not in accordance w/ wills act
3. This would completely vitiate the wills formalities.
4. NOT the document that must exist, but the words must
exist.
Acts of Independent Significance
a. Examples
1. T bequeaths 10k to each of all his employes at the time of
his death ----- Valid
2. T bequeaths 10k to each person on a piece of paper to be
found w/ him at death ----- Invliad
3. T bequeaths all his real property at time of death to Fairfax
County ------ Iffy/Valid
b. Question
1. Do the acts, contingencies, have a purpose separate and
independent from testamentary?
2. In the first one, clearly one does not employ people solely
for testamentary purposes
3. In the second hypo, no the only purpose for the paper is
testamentary
36
4. For the third one, you could say yes b/c although a person
can really have testamentary effect it’s not the only purpose
c. Rule
1. courts will not look behind such non-testamentary acts to
determine a motive
d. Contents of Safety Deposit Boxes
1. Majority
i. Mechanistic approach and upholds w/o examining
how box was made use of
ii. Don’t’ inquire as to whether T used box to affect
testamentary plan
2. Minority
i. Will ask how T used box under the facts of a
particular case
E. Construction Problems
i.
Admission of Extrinsic Evidence and Reformation of Wills
a. Overview
1. To the extent this theory rests on the premise that mischief
will ensue if courts reject plain meaning language of wills,
how do we explain undue influence, capacity, duress and
fraud?
b. Plain Meaning Rule
1. May be admitted to decipher some ambiguities but he plain
meaning of the words of the will cannot be disturbed by
evidence that another meaning was intended
c. Reference Rule
1. Basically the same
d. Mahoney v. Grainger
1. “It is only where testamentary language is not clear in its
application to facts that evidence may be introduced as to
the circumstance under which the testator used that
language in order to throw light upon its meaning. Where
no doubt exists as to the property bequeathed or the identity
of the beneficiary there is no room for extrinsic evidence;
the will must stand”
e. Personal Usage Exception
1. If the Extrinsic Eviden demonstrates that a person always
referred to another person in an idiosyncratic manner, the
evidence is admissible to show that the testator meant
someone other than the person w/ the legal name of the
legatee.
f. Patent Ambiguity
1. An ambiguity on the face of the will
2. E.g., I give my house to X and my whole estate to Y
g. Latent Ambiguity
1. Equivocation
37
ii.
i. Admission of EE to clarify latent ambiguity where
description fits 2 or more people or things
EQUALLY
ii. This is the SOLE instance where direct expression
or declarations are admissible
h. Fals Demonstratio Non Vocet (mere erroneous description does not
vitiate)
1. “where a description of a thing or person consists o several
particulars and all of them do not fit any one person or
thing, less essential particulars may be rejected provided
the remainder of the description clearly fits
2. This allows court to delete erroneous language and then
construe ambiguous language that results.
3. Its kinda like you just delete using this power, and then you
have a patent ambiguity so you can then allow E and E
4. Abravanel
i. Doesn’t have a problem w/ the Fals whatever…
ii. She just thinks court should be more opern and just
admit to reformation of the will
i. Scrivener’s Mistake: Why allow E&E
1. When
i. Mistake by Scrivener in Drafting
2. SOP
i. C&C
3. Policy
i. Allow it where a “will is executed in reliance on
erroneous beliefs induced by the innocent error, by
the innocent misrepresentation, of the scrivener of a
will.” There is no discernable policy difference b/tw
this and cases for a) fraud, b) duress, c) undue
influence. If court can impose constructive trust for
fraud, why not here?
ii. “Risk of subversion of the intent of a testator, who
canot personally defen his testamentary bequest, is
w/o doubt a serious concern.” However, the SOP
(C&C) effectively mitigates this concern
j. Testamentary Intent
1. If person undergoes faux will process and does not have
testamentary effect, one of the witnesses can testify to that.
2. This would prove that T’s requisite intent was not present
Doctrine of Lapse
a. Analogous to Conditions of Survivorship
b. Rule
1. When a legatee or devisee dies b/tw execution and death of
T the bequest is said to lapse and it fails and is treated as a
nullity
38
iii.
2. Where contingency is not provided for it goes to the residue
or to intestacy if the will is poorly drafted.
c. Anti-Lapse Statutes
1. Nearly all states have enacted statues, which provide under
certain circumstances an alternative disposition w/ probable
intention of average take
2. Does not prevent laps they merely substitute other
beneficiaries
3. Who is it Applicable To?
i. Devises to grandparent and lineal descendant’s of
grandparents.
4. Who does it pass to?
i. Heirs of grandparents and lineal descendants
5. Limitations
i. Creditors of deceased beneficiary cannot touch
lapsed gift
ii. Predeceased beneficiary cannot control flow of
substitute takers by terms of his will
6. Variables
i. Definitions of legatees and devisees. Usually
limited to descendants of T. Also may include SS
and his/her siblings. But in all likelihood it would
not apply to preserve gift to X if X were merely a
friend of T
ii. Substitution Taker: Most of the statues limit them to
predeceased beneficiary’s descendant’s who survive
T. If X had no children, or GC then gift would pass
to residue
d. Lapse and Anti-Lapse are Default Rules and apply except where T
evince a contra intent.
e. Opt Out Phrases
1. To X “if he survives me”
2. Words of survivorship are typically ok under CL to opt out.
3. UPC’s dumb ass doesn’t’ think so. The UPC is the shit.
f. Class Gifts and Anti-lapse Statues
1. Almost all statues apply anti-lapse states to Class Gifts
2. This turns CL on its head???????????????????????????
g. No Residue-of-a-Residue Rule: Minority
1. A failed devise or lapsed devise of a residue does NOT
pass to another residuary taker
Uniform Simultaneous Death Act
a. Adopted in all Juris
b. General Rule
1. Where there is no sufficient evidence of the order of death,
the beneficiary is deemed to have predeceased the decedent
c. Applicable Language
39
iv.
1. “no sufficient evidence of the order of death.”
2. Problem w/ this in investigating death and gruesome shit
d. Revised Rule
1. 120 hour or 5 day rule
2. In order for a taker to have survived T he must have
survived T by 120 hours
e. How to Deal w/ This
1. Include language in the will that require beneficiary to
survive the decedent by 30, 60, 90 days
2. Husbands and wives often travel together and are
commonly the first taker of estate, this problem typically
involves them.
f. Steps
1. Did uniform death act apply?
2. Is taker deemed to have predeceased T?
3. Is there a lapse statute?
4. What is the anti-lapse statute?
Changes in Property After Execution of Will
a. Ademption
1. Majority/ Identity Theory
i. IF a specifically devised item is not in T’s estate at
death, the gift is extinguished, notwithstanding the
fact that there may be traceable proceeds of sale.
2. Minority/Intent theory
i. If the specifically bequeathed item is not in T’s
estate the beneficiary may nonetheless be entitle to
the cash value of the item if the beneficiary can
show that this is what T would have wanted
3. What Does it Apply to
i. Applies ONLY to SPECIFIC devises of real and
personal property
ii. Does not apply to a) general, b) demonstrative, c)
residuary
4. Demonstrative Gifts
i. Hybrid: general devise, yet payable from specific
source. General in the sense that you always get it,
and specific in the sense that you get it from a
particular source
ii. E.g., to B the sum of 10k to be paid from proceeds
of a sale of my GM stock
iii. If funds of specific gift are not sufficient, then 10k
must be paid from general assets
5. Questions to Ask
i. Is it a specific gift?
1. If no, then doctrine doesn’t apply
ii. Did T possess Assets at Death
40
1. If yes, then specific legatee would get gift
2. If no, then gift is deemed extinct.
6. Intent is irrelevant in Identity Theory
7. Applicable to testamentary trust
8. Escape Routes to Identity Rule
i. Classify devise as general or demonstrative
ii. Classify IV disposition as change in FORM, not
substance
iii. Construe meaning of the will as of the time of death
rather than as of tiem of execution
iv. Create exceptions
9. Specific Examples
i. Stock Splits
1. traditionally the person would have received
100 not the 200
2. However, that makes no sense practically so
most courts discard the rule in this case and
hold that absent contrary intent a devisee is
entitle to shares from the split.
ii. Dividends
1. Treated differently by some courts
2. Some hold that since devisee cannot be
logically allowed to have the dividends he
cannot be allowed to have the stock. But this
ignores the fact that the ownership is the
same
3. UPC and RST treat them the same as splits
and treat it just as a bookkeeping transfer
b. Satisfaction
1. Although technically speaking a clause that has been
satisfied has not been revoked, the application of the
doctrine has the same effect
2. You can use oral evidence to demonstrate satisfaction. This
effectively allows T to change his will though parol
evidence
3. UPC requires this to be in writing
4. Specific bequest are NOT subject to satisfaction
5. Rebuttable Presumption
i. Only arise when gift is to Child or Grandchild in
some states
6. No Hotchpot for Testate Takers
i. ???????????????????????????????????????????????
???????????????????????????????????????????????
???????????????????????????????????????????????
41
ii. In the case, the advancement would cancel out part
or all of the C’s share and then it would pass
intestate
VIII. Trusts Fundamentals
A. Introduction: General Characteristics
i.
ii.
iii.
iv.
v.
vi.
Express Trusts
a. Inter Vivos
1. Transfer property during lifetime
b. Testamentary
1. Settlor creates trust under terms of her will
Methods for Creation of Express IV Trust
a. Transfer in Trust
1. Owner of property during lifetime transfers it to another as
trustee
2. There is a 3d party trustee
b. Declaration of Trust
1. Trust can be created w/o transfer of property
2. Owner makes herself trustee of property for benefit of
others
3. Where settlor, by means of an express declaration of trust,
retains the legal title to the trust assets in her capacity as
trustee
4. Requires neither delivery nor possession of property
c. If under terms settlor and bank are co-trustees th eintrument takes
characteristic of transfer in and declaration of trust.
d. Must be in Writing p. 528
???????????????????????????????????????????????
Has there Been a Transfer of Property Interest
a. Yes, equitable title passes to beneficiary
b. If not, the doctrine of merger would simply mean the trustee holds fee
How Do Co-Trustees Hold Title
a. Joint tenants w/ right of survivorship
b. Such a construction avoids difficulties that would arise if trustees held
title as tenant in common. Upon death of co-trustee the survivor is
seized of entire title.
c. Court may appoint new trustee depending on settlor’s intent
Precatory Language
a. Expression of “hope” or “wishes” Arise when language does not
clearly indicate whether T intends to create a trust of merely a moral
obligation that is unenforceable
b. RULE ----- Don’t use this language
Trust Requirements
a. Beneficiary
b. Trustee
42
c. Corpus/Res
B. Necessity of Trust Property
i.
ii.
iii.
iv.
RULE
a. You need it, any amount from $1 to a house to a
b. You have to put something aside and designate it as putting it in trust.
c. However, not necessary to use the word “trust” to created a trust
Unthank v. Rippstein
a. No res so not trust.
b. Court doesn’t want to bind whole property, but Abravanel asks why
not and why not use some tools to change will.
Equitable Reversionary Interests
a. Where an express trust fails or makes an incomplete disposition of
trust corpus the trustee holds property for the benefit of the settlor.
b. Where one person uses another person (not a natural object of his
bounty) to buy property using his own money
1. The law treats X as holding the property in trust for the
settlor as a beneficiary
2. interest reverts to transferor’s estate. Transforor has right to
the property
3. Once a resulting trust is found the trustee must re-convey
the property to the beneficial owner on demand.
Expected Proftis
a. Brainard v. Commissioner holds that expected profits cannot be corpus
b/c they are not in existence at the time of formation of trust.
b. Policy decision here didn’t want people to avoid higher taxes on sht.
c. However, in Pascal we have an assignment of future profits from a
musical.
d. Abravanel thinks the only difference was that the former was oral and
in the latter the settlor did all he could to assign it.
C. Necessity of Beneficiaries
i.
ii.
Black Letter Law
a. Private trusts must have definite beneficiaries. Must be a definable
class of individuals who can come into court and enforce the trust. If
the beneficiaries cannot be defined, the trust is unenforceable
b. Sill followed in many states
Honorary Trust
a. Only a moral obligation, not a legal one
b. E.g., “give to X in trust to distribute to my friends as he sees fit,” or to
“take care of my animal.”
c. Rule of Perpetuity
1. Most honorary trusts fail b/c they are not limited to human
lives
D. Constructive Trusts
i.
ii.
??????????????????????????????????????????????????????????????????????
See supra
43
IX. Spendthrift, Support and Discretionary
Trusts
A. Spendthrift Trusts
i.
ii.
iii.
iv.
v.
vi.
3 Types of Restrictions on Alienability
a. Disabling Restrain
1. “A is powerless to alienate interest”
2. This is ineffective b/c it denies A key aspect of ownership
b. Forfeiture Restrain
1. “If A shall ever seek to alienate this interest, O may reenter and terminate the estate granter”
2. Where interest is a legal interest in fee the forfeiture clause
is invalid and transferee takes fee simple absolute
3. Contra
i. Forfeiture for life estate or estate for years is OK
ii. Forfeiture provision in lease
c. Promissory Restraint
1. “Covenant in conveyance that transoforee promises not to
sell land”
2. Invalid when attached legal interest
Types of Alienation
a. Voluntary
1. I seek to convey something to you for consideration or a
gift
b. Involuntary
1. attachment by creditors
c. What I can voluntarily assign I can have involuntarily taken away
from me.
English Court’s Views
a. Have consistently held that a disabling restraint CANNOT be imposed
on the quitable interest of a trust beneficiary
b. Spendthrift trusts are not recognized in any way in England
American Rule
a. A disabling restraint as applied to an equitable interest of an income
beneficiary under the trust if valid
Effect
a. Beneficiary can enjoy profits or obtain credit based on it, but he
CAN”T sell it
b. Creditor’s can’t attach it no matter how indebted beneficiary becomes
c. HOWEVER ---- once property is distributed it can be attached, and
this makes the creditor work hard to get the money as it’s being paid
out.
Policy Reasons
a. Settlor can dispose of property as long he does not harm 3d parties.
44
vii.
viii.
ix.
x.
b. This is no injury tot creditors, since but for the disposition they
couldn’t have reached the property anyways and they should do a
FUCKING credit check idiots.
Is Spendthrift a Matter of Public Record
a. If it is testamentary then yes, but other wise no.
b. However, it would be expensive to search record
Settlor’s Self-Beneficial Trust
a. Spendthrift provision is invalid as to him.
b. Person can’t protect his own assets against creditors but still enjoy all
the benefits
Spendthrift v. Discretionary
a. Support
1. Under terms of which trustee is only required to pay so
much of the income for support of the beneficiary, the
beneficiary is not entitled to all income produced
b. Discretionary
1. Trustee shall pay income to beneficiary as trustee in his
sole discretion as he sees fit. He has absolutely on
entitlement to income.
c. Default
1. In absence of contra language, life beneficiary is entitled to
all income of the trust produced in beneficiary’s lifetime
d. Hybrid Trust
1. Support Standard w/in Discretionary Trust
i. Trustee, in absolute discretion, shall distribute only
so much income as needed for support of
beneficiary
ii. Trustee is able to use discretion w/in framework of
support
Who Can Reach Spendthrift Trusts?
a. Privilege of disposing property is not absolute and it is w/in the court’s
power to impose upon the privilege of disposing property such
restriction as are consistent w/ its view of sound public policy.
b. Children and Wives
1. Interest
i. Holds that the spendthrift clause does not attach to
income of trust
ii. The can reach this
2. Corpus
i. NO, if it is discretionary.
ii. This doesn’t make any sense b/c ct threw out
spendthrift clause for income so why not now?
c. Certain Creditors: People who provide services, gov’t
1. Can attach to interest income in discretionary trust
2. BUT … mere fact of attachment in itself cannot compel
trustee to make distribution
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xi.
3. However, if trustee does make disbursement it goes straight
to creditors
Absent Spendthrift provision creditor can attach the interest of a beneficiary in
a discretionary trust
B. Discretionary Trusts
i.
ii.
iii.
Fiduciary Duties
a. Even though “absolute” discretionary trust purports to be standardless,
it is not. The settlor can not be relieved of his fiduciary duties and an
attempt to do so would be ineffective
b. Breach of Duty Test (it’s touchy feely)
1. If no reasonable person would conclude in the light of all
the circumstance that the trustee’s failure to make a
distribution to the beneficiary under the circumstance was
reasonable, such failure by the trustee to exercise its
discretion in favor of the beneficiary would not comport w/
his fiduciary duties.
c. Rule
1. Trustee has duty to inquire as to whether distribution would
be required under the circumstances
2. Trustee cannot act vindictively or in bad faith, and may not
promote the interest of one potential beneficiary over
another
Implied Standard of Subsistence
a. In sum there is a baseline fiduciary duty.
b. Narrower than support standard
Support Trusts
a. Support Defined
1. Not equivalent of minimum subsistence
2. Support in the manner in which one has grown accustomed
3. Relative Standard
4. In absence of settlor’s stated contrary intent it will be
construed as an individual standard.
b. Beneficiary’s Other Resources
1. Proper drafting should describe whether or not to take these
into consideration
2. Majority Rule
i. Rebuttable presumption that settlor intended
beneficiary to receive funds regardless of
beneficiary’s other financial resources
3. Policy Reasons
i. Protestant Work Ethic
c. Discretionary Support Trust
1. Rule
i. Where settlor ads discretionary language to support
standard, the trustee CAN consider other sources of
income in making his decision
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d. Implied Restriction on Alienation
1. Even thought there is no express restriction, courts have
interpreted by implication that support trusts contain
spendthrift clauses.
2. ??????????????????????????????????????????????????????
e. Does it Include Support of Kids and Spouse
1. YES
f. Broader Language
1. Happiness
2. Benefit
3. This language approaches absolute support
C. Thin/Revocable Trusts
i.
ii.
iii.
Property Validity
a. You have to determine if it is so testamentary in nature that it will
defeat it.
b. Test
1. Did interest presently pass to beneficiary upon execution of
the trust?
2. Did settlor retain such control over trust so as to make it
testamentary
c. Power of Revocation Does NOT Defeat Trust
d. Abravanel’s Take
1. Because there are financial intermediaries that keep good
records, there is not a high risk of fraud, so we can ignore
the testamentary formalities a little.
2. Intruments good, so we’re good
Method of Revocation/ Imputed Will Characteristice
a. Trusts, unlike wills, are not subject to revocation by physical acts.
They are subject to revocation in accordance w/ the trust instrument
b. Unlike will, trust creates permanent interest in the corpu and this
interest “cannot be take from tem except in accordance w/ a provision
of the trust instrument, or by their own acts, or by decree of court.”
c. Remember this is a present transfer of interest and therefore the settlor
can only revoke what he owns, and he doesn’t own the equitable
interest.
Creditor Validity
a. Rule
1. Revocable Inter Vivos trust does not have creditor validity
after settlor’s death and settlor’s creditors can reach assets
to satisfy their claims against the settlor after death.
2. Only after estate has been taekn
b. Self-Settled, Revocable Trusts an Death
1. A self-settled trust that passes through probate is still
subject to creditor’s claims
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2. “It’s excessive obeisance to the form in which property is
held to prevent creditors from reaching property place din
trust under such terms.”
3. Many Different Takes
i. RST 3d (her fav) treats revocable trust property
after settlor’s death as if trust was owned by settlor
X. Deviation and Termination of Trusts
A. Distributive Deviation
i.
ii.
iii.
Different Rules
a. Traditional US
1. Lock in forever settlor’s plan
b. Old England
1. Allowed deviation
c. 3d Option/RST
1. Ask what settlor would have wante din the changing
circumstances and ask what modification should be taken
accordingly
What are we not talking about
a. Administrative Deviation
1. Trust instrument may contain various restriction of
administration of trust assets
2. Ct may authorize trustee to deviate from or disregard such
restriction where for example an emergency has arisen or
they no longer make sense
b. Doctrine of Cy Pres
1. Where purpose of charitable trust has already been
accomplished or is no longer practicable
2. Ct will authorize trustee to apply assets to a purpose that is
similar to, but different from, those set forth in charitable
trusts.
c. Claflin Trust or Deferred Enjoyment Trusts
1. S puts in trust for T but T can’t touch it until he reaches 35
2. Parents don’t’ trusts their kids
d. Half-Way House to Distributive Deviation
1. S transfer to T in trust to pay 500 per month out of income
to A and upon A’s death, pay principal to B
2. If Corpus is Insufficient?
i. Some court have allowed corpus to make up
difference. However, read literally the source of the
payment is a restriction on how much
ii. Contra, payments are limited
Change of Circumstances Doctrine
a. Inapplicable if justification is that “such deviation would be more
advantageous to the beneficiaries than compliance w/ such direction.”
b. She doesn’t like this and thinks it’s outdated.
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iv.
Lesson
a. Make trusts sufficiently flexible to allow for unseen future happenings
B. Termination of Trusts
i.
ii.
iii.
iv.
v.
Mere Successive Enjoyment Trust
a. Ex. To A for life and then to B
b. Rule
1. Well settled that where a trust is created for successive
beneficiaries, they can terminate the trust if they are all sui
juris (of age and competent) and desire to terminate it and
its continuance is not necessary to continue a material
purpose of the settlor in creating the trust
When Can you Terminate
1. All beneficiaries are sui juris
2. All beneficiaries consent
3. Trust is a “non-material” purpose
What is a “Material Purpose” trust?
a. Claflin Trust
b. Support Trust
c. Spendthrift Trust
d. Discretionary Trust
So … Mere Successive Enjoyment Trusts are Terminable But not Much Else
If Settlor Says it’s fine, then it’s fine
a. ????????????????????????????????????????????????????????????????
XI. Prohibited Trust Purposes and Life
Insurance Trusts
A. Trust Purposes
i.
When is Partial Restraint of Marriage Valid
a. Condition is only partial restraint on marriage
b. Restriction is reasonable
B. Pour Over Wills
i.
ii.
iii.
Basic Requirement
a. In order for prospective testator to utilize this they must create Inter
Vivos Trust in which estate’s assets can be poured
Benefit
a. Very useful tool by which property owner may seek to integrate IV
and Testamentary transaction into a single dispositive plan
Common Law Development
a. Conceptual difficult is that certain dispositive terms of will do not
appear in will itself, but in some external document which has
typically not been executed w/ requisite testamentary formalities
b. So courts tried a couple of present theories, but they failed
1. Incorporation Be Reference
i. Conceptually not all that helpful
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iv.
ii. In realit you are incorporating the trust into the will,
when in fact you want to pour the estate into the
trust. basically it’s backwards.
2. Revocable and Amendable IV Trust Amended Subsequetn
to Execution of Will
i. Still doesn’t get you where you need to go
c. So courts punted and created new doctrine
Limitations
a. All assets poured over are probate assets
b. Pour Over Will is not in any way, shape or form a probate avoidance
device
c. Assets to be poured over are first fully administered as part of probate
estate and pour over is only accomplished after probate court has
entered its decree of final distribution
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