Fall 2012 – Syllabus and Reading Assignments
WILLS AND TRUSTS
Monterey College of Law
Fall 2012 – Syllabus and Reading Assignments
Prof. Yvonne A. Ascher
yascher@ascherlaw.com
831-641-9019
Schedule:
Class meets on Thursdays from 6:30-9:30. This is a three
unit course.
Text:
Dukeminier, Jesses et al. Wills, Trusts and Estates 8ed.
(Aspen 2009) (referred to as Text)
Susan F. French A California Companion for the Course in
Wills, Trusts and Estates (2011-12) (referred to as CC)
Probate Code – I recommend an annotated version. I use
McGovern California Probate Code Annotated (West 2012).
Alternatively, you might want to purchase California, Probate
Code and Related Provisions, w/ commentary by D. Kelly
Weisberg, Aspen Publishers. It is part of their “student code
book series”. It contains select provisions of the code with
“explanations” and some brief case summaries. (This is the
code book utilized by Hastings Law School for this course.)
If you purchase this book, you will still need access to
the California Probate Code as not all assigned sections
are set forth in this text. (On-line access is generally
sufficient.)
Grading:
Your grade is fully based upon your final exam scores.
There will be a non-graded test during Week 7 or 8.
Abbreviations:
CPC = California Probate Code; UPC = Uniform Probate
Code; UTC = Uniform Trust Code; FC = California Family
Code; CP = Community Property; QSP = Quasi Community
Property. For abbreviations for text, see above.
Boldface:
Statutes tested on the California Bar are in boldface. You
can also see the code sections that you are expected to
know for the Bar by going to the California Bar’s website,
and looking under the “future lawyers” tab, and then “scope
of California bar exam”. (Also Reprinted in CC on page xxix
and in the Table of Statutes on page 267)
Reading Assignments – Caveat: You are expected to read the cases
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Fall 2012 – Syllabus and Reading Assignments
assigned. This particular casebook also includes a huge
amount of explanatory information and commentary, which
in many instances may be skimmed or skipped. The
assigned cases, codes, class lectures and common sense
will make clear what you will need to read in any depth.
Codes that are expressly set forth in the CC need to be
read, in addition to those identified in the syllabus.
This subject matter is very “code” heavy. You will be
responsible for the CA codes identified.
Reviewing cases: Generally, the procedural issues are not significant or
important for this class. You can generally skip them unless
the relevance of that case is the procedural issue.
Presentation of cases should begin with a summary of the
important facts; pretend a client presented these facts to
you. Apply the facts to the rules and show how the Court
applied them in coming to its conclusion. Look at how the
Court applied the facts to the rules. Focus on the issues that
are relevant to this class – think “why is this case in this book
here?” “What rule am I to get from this case?”
California law:
You will only be tested on California law. However, on
occasion, an understanding or awareness of rules applicable
under common law or other jurisdictions is important.
Accordingly, in some areas, UPC codes are referenced.
They should be reviewed, but need not be committed to
memory. The goal of this course is to enable you to
recognize legal issues which arise in the context of Wills,
Trusts and estate administration under California law.
Other comments: We may not get to discuss in class all the materials
assigned. Nevertheless, you are responsible for all assigned material (cases and
codes).
On occasion, due to various factors, the reading assignment may be revised. If
you miss class, it is your responsibility to see if the reading assignment for the
following week has been revised. You are also responsible for obtaining any
materials passed out during class.
Throughout the course, I have assigned additional readings that are not in either
casebook. When available, I have tried to provide an on-line link to the case, but
sometimes the link that worked when I found the case will not work when you try
it. If you cannot download the document, it is your responsibility to let me know.
If you contact me more than a week before the assigned reading is to be
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Fall 2012 – Syllabus and Reading Assignments
discussed, I would be glad to bring a hard copy to class so you can avoid the
printing expenses. If you wait until that week, I can either fax it to you or email it
as an attachment. I assume everyone has access to the internet, but if you do
not, please let me know so we can make other arrangements. If an article is
assigned, and the article is not available on-line, I will bring copies to class. If
you miss that class, it is your responsibility to get a copy.
For ease in review, the assignments in the Text are generally listed together, the
assignments in the Companion Book (CC) listed together, and the outside
reading listed together. That “order” is not always the order of the material. I
leave it to you to decide how you wish to read the assignment.
WARNING: WEEK 2 IS AN INTENSE WEEK - RECOMMEND THAT YOU TRY
AND GET A HEADSTART
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Fall 2012 – Syllabus and Reading Assignments
WEEK 1: Introduction to subject matter: power to transmit
property at death/summary probate process/introduction to
intestacy; Malpractice!
CC Scope of California Bar Exam
CC Chapter 1 skim chapter; do not need to read the case
CC Chapter 2 Read thru middle of page 12; skip and then read on page 15-16
CPC 6402
skip to and read CC Chapter 3 page 50-55
Case:
MOORE V ANDERSON ZEIGLER DISHAROON GALLAGHER &
GRAY
Text Chapter 1: Introduction/Governmental Right to Control; Summary of
probate procedure; Professional Responsibility
Read page 1-10
Skim pages 10-20 (skim the Marilyn Monroe case)
Read pages 27-38 (footnote page 35 of particular interest)
Read intro to probate 38-top of 40
Skim pages 40-48 on the probate process
Key Cases: HODEL V IRVING (pg 3) rights to transmit and receive property at
death
SHAPIRA V UNION BANK (pg 28) right to condition inheritance
Text Chapter 2: Introduction to intestacy (Estate planning by default)
Read page 71-80
Compare UC Codes with California Codes
Philosophy question of the week: question on page 74.
Outside Reading:
CHANG V LEDERMAN (2009) 172 CA4th 67; 90 Cal. Rptr. 3d 758
What are the Biakanja/Lucas factors? Focus only on the malpractice issues.
Skim Hall v. Kalfayan, 190 Cal. App. 4th 927 - Cal: Court of Appeal, 2nd
Appellate Dist., 4th Div. 2010
Even if no liability attaches, what are the ethical requirements?
Intestacy problems worksheet – will hand out in class – due Week 2
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Fall 2012 – Syllabus and Reading Assignments
Week 1 continued
CPC Codes:
UPC Codes:
21105 - Will passes all property including after acquired property
of T; 6400 - property subject to intestacy provisions; 6401 intestate share of surviving spouse/domestic partner; 6402 - share
not passing to spouse; 6402.5 – portion of T’s estate passing to
issue of T’s predeceased spouse; 6404 – escheat
§2-602; Wills may pass all property including after acquired
property of T
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Fall 2012 – Syllabus and Reading Assignments
WEEK 2: Rules of intestacy – continued; shares of
spouses/domestic partners; who is a child?
Will go over the intestate problem in class.
CC Chapter 2 Pages 12- top of 34
Cases:
ESTATE OF DYE
ESTATE OF FORD
ESTATE OF GRISWOLD
Text Chapter 2 - continued: Page 80-117
Cases:
spouse
JANUS V TARASEWICZ - pg. 80 - period required for survival of
O’NEAL V WILKES pg 109 – equitable adoption
READ THE FOLLOWING OUTSIDE CASES– make sure you email me if you
need copies
Skim - ESTATE OF JOSEPH (1998) 17 C4th 203; including the dissent;
ESTATE OF FURIA (2002) 103 Cal.App.4th 1, 126 Cal.Rptr.2d 384 (2002)
ESTATE OF BURDEN (2007) 146 Cal. App.4th 1021, 53 Cal. Rptr. 3d 390 – what issue
was missed? Hint see 2012 Senate Bill 1476
CPC Codes:
CA Family
Codes:
UPC Codes:
28 – community property defined; 66 – quasi-community property
defined; 100 – community property; 101 – quasi community
property; 103 – simultaneous death of spouses re. cp and quasi
cp; 104 – community property held in revocable trust; 220 –
simultaneous death; 221 – exceptions; 222 – gift conditional on
survival of another; 223 – joint tenants; 224 – simultaneous death
of insured and beneficiary; 240 – intestate distribution to issue by
modern per stirpes rule – per capita; 245 – modern per stirpes
rule; 246 – per stirpes, by right of representation; 247 – per capita
at each generation; 6406 – intestate succession of half blood
relatives; 6407 - posthumous heirs; 6450 – adopted and
nonmarital children; 6451 – adoption and birth family; 6452 –
inheritance by parents of children born out of wedlock; 6453 –
determination of natural parent; 6454 – right to inherit from foster
or step parent; 6455 – equitable adoption;
7610 – establishing parent-child relationship; 7611 – presumed
natural father; 7630 – paternity action; 7650 – determining mother
child relationship*
§2-106 – representation intestate succession; 2-102 – share of
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Fall 2012 – Syllabus and Reading Assignments
spouse in common law state; 2-102A – share of spouse in
community property state; 2-103 – share of heirs other than
spouse; 2-105 – no taker; 2-106 – representation (you’ll have to
look this one up); 2-107 – half blood; 2-113 relationship to T
through 2 lines; 2-114 parent/child relationship; 2-709 –
representation; per capital at each generation; per stirpes
Recommend you diagram intestate rules.
*These rules can be quite confusing – just have a sense of the basic rules and the philosophy
behind them
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Fall 2012 – Syllabus and Reading Assignments
WEEK 3: More intestate succession issues; advances, bars to
succession, disclaimers
CC Chapter 2 Page 34 -48
Cases:
ESTATE OF SHELLENBARGER
ESTATE OF LOWRIE
How would you design a statute that limited the right to inherit based on conduct?
Text: Chapter 2 – continued
Page 117-136 (stop at guardianship)
Page 145-157
Cases:
WOODWARD V COMMISSIONER OF SOCIAL SECURITY page
118 – posthumous conception –skim some of the more recent
cases addressing the same facts, such as from Virginia,
Astrue v Capato
Skim IN RE. MARTIN B. page 126 (CA statute on point)
IN RE ESTATE OF MAHONEY page 145 – slayer statutes
DRYE V US page 155 - disclaimer
Additional Outside Cases:
ESTATE OF DELORETO (2004) 118 CA 4th 1048
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/b166989.html
adult adoptee case; don’t need to focus on the “technical” issues but understand the
facts, basic issue and what the Court is trying to ascertain. Think about drafting issues;
definitional issues.
ESTATE OF CHAMBERS, JR. V MONEY (2009) 175 CA 4th 891; 96 Cal. Rptr. 3d 651;
although it appears to be a case about the correct “standard” to use, it has a good
discussion of the rules governing proving a parent-child relationship after death.
Skim Article: “The California Supreme Court Considers Three Broken Up Lesbian
Partnerships and Finds, in each, That a Child Can Have Two Mothers”, by Joanna
Grossman (Sept. 2005) http://writ.news.findlaw.com/grossman/20050906.html
OPTIONAL: Charisma R v Kristina S. new 2009 case on issue (175 CA 4th 361)
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/175/361.html&search=25
CPC Codes:
249.5 – child conceived after death of genetic parent; 260-295
(skim) disclaimers; 6409 – advancement writing requirement; 250254 – disqualification for killer; 259 – disqualification for elder
abuse; 282-283 – disclaimer;
See also 2012 AB 1349 – changes the presumption about the number of fathers
what issue is created by this statute that is not addressed in the probate arena?
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Fall 2012 – Syllabus and Reading Assignments
WEEK 4: Capacity to Make a Will; Disqualified transferees
NOTE: THE PROHITIVE TRANSFEREE STATUTES WERE RECENTLY
AMENDED. THE CASES GENERALLY REFER TO THE OLD STATUTES.
NEED TO UNDERSTAND PRIOR STATUTES AND NATURE OF CHANGE
CC Chapter 3 Page 49-50; code on top of page 56, 61-79 (skip STEPHENS)
Cases:
RICE V CLARK
ESTATE OF WINANS
Text – Chapter 3 Wills: Capacity and Contests
Page 159-221 Can skip section on Wills contests
Cases:
skip ESTATE OF WASHBURN page 159 – mental capacity of
testator
WILSON V LANE page 161 – mental capacity of testator
IN RE STRITTMATER page 169 – undue influence
BREEDEN V STONE page 171 – mental capacity
ESTATE OF LAKATOSH page 182 – undue influence
IN RE MOSES page 186 – undue influence
IN RE KAUFMANS’S WILL page 191 – undue influence by gay
lover
LIPPER page 193 – undue influence
skip PUCKETT page 209 - fraud
LATHAM page 210 - duress
Skim SCHILLING page 215 – tortuous interference with expectancy
Outside Cases:
Skim: BECKWITH V DAHL (May 3, 2012) – California recognizes tortuous
interference with expectancy
Read: ANDERSEN V HUNT (2011) 196 Cal. App. 4th 722 CRITICAL NEW
CASE
Skim: ESTATE OF AUSTIN (2010) 188 CA4th 512 – transferee was not a care
custodian
CPC Codes:
6100 – who may make a will; 6100.5 – persons not mentally
competent to make a will; 6104 – duress, menace; fraud, undue
influence; 21360-21392 - statutorily presumed disqualified
transfers (newly adopted statutes); 8252- burden of proof; 810 813 – general capacity standards
What California probate code section addresses the nomination of a
“prohibited transferee” as a Trustee?
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Fall 2012 – Syllabus and Reading Assignments
WEEK 5 – No Contest Clause; Formalities of attested wills;
Introduction to Holographic Wills
CC Chapter 3
Page 80-86
Case:
COLBURN V THE NORTHERN TRUST COMPANY
CC Chapter 4 Page 87-109
Cases:
ESTATE OF STOKER
ESTATE OF WILLIAMS
ESTATE OF SOUTHWORTH
ESTATE OF BRENNER
Text: Chapter 4 – Wills: Formalities and Forms; Interested Witnesses
Page 228-264 (can skip page 245-246)
Cases:
STEVENS page 229 – formalities vs. intent of testator
NOTE THE CASES Taylor v Holt on page 235-6; In re. Colling, page 237
ESTATE OF MOREA page 239 – bequest to witness
PAVLINO’S ESTATE page 246 – switched wills
IN RE SNIDE page 250 – reciprocal wills
SKIP - IN RE WILL OF RANNEY page 253 – substantial
compliance with signature requirement
ESTATE OF HALL page 259 – harmless error re witnesses
(compare Montana’s statute with CA’s recent changes to CPC
6110)
Outside Cases:
TUNSTALL V. WELLS 10/31/06
http://caselaw.lp.findlaw.com/data2/californiastatecases/b188711.doc
Optional – ESTATE OF PRYOR (2009) 177 CA4th 1466 (or read a summary
article discussing the holding)
CPC Codes:
UPC Codes:
6110 – requirements of formal will; writing, signed, witnessed
(note recent changes to the law); 6111 – holographic will; 6112 –
witnessed – competency & interest; 6113 – laws determining
validity of will; 6105 – conditional will
2-502 – execution, witnessed wills, holographic wills – note 2008
revision to allow notarization as an alternative to two witnesses; 2505 – who may witness
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Fall 2012 – Syllabus and Reading Assignments
WEEK 6: Formalities continued; preprinted forms, statutory
Wills; revocation and revival; statutory revocation; dependent
relative revocation (drr); holographic wills (continued)
CC Chapter 4 Page 110-121
Cases:
skim LAUERMANN V SUPERIOR COURT
ESTATE OF JONES
ESTATE OF REEVES
INTRODUCTION TO DRR ON PAGE 113 – IMPORTANT CONCEPT
Text Chapter 4 : CONTINUED
Page 268-305
Cases:
CPC Codes:
UPC Codes:
KIMMEL’S ESTATE page 269 – letter serving as a Will
ESTATE OF HARRIS page 273 – will on tractor fender
ESTATE OF GONZALES page 274 – pre-printed will form
ESTATE OF KURALT page 280 – letter as Codicil
HARRISON page 287 – lost Will
THOMPSON page 290 – requirements for revocation
LACROIX page 295 – dependent relative revocation (DRR) and
revival
ALBURN page 300 – DRR (make sure you read the Note on page
304 following otherwise the case is a bit hard to follow)
6111.5 – extrinsic evidence permitted in ltd. Cases to determine if
document is a will; 6223 – CA Statutory Wills (skin briefly); Oral
wills, in contrast, are not recognized in CA.; 6120 – revocation by
subsequent will or physical act; 6121 – revocation of duplicate
will; 6122 – revocation by dissolution of marriage; 6122.1 –
revocation by termination of domestic partnership; 6123 – revival
of revoked will; 6124 – presumption of revocation; 6130 – writing
in existence, incorporation by reference; 6131 – reference to act
of independent significance; 6132 – new statute re. disposition of
tangible personal property
2-502 – execution, witnessed wills, holographic wills; 2-503writings intended as a will; 2-506- rejecting oral wills; 2-507;
revocation by writing or act; 2-509 – revival of revoked will; 2-804
– revocation by divorce
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Fall 2012 – Syllabus and Reading Assignments
Week 6 – continued
OUTSIDE READING
ESTATE OF BELVA C.P. SMITH (1998) 61 CA4th 259
ESTATE OF EVELYN I. ANDERSON; Carole J. De Paul v Robert C. Irwin II
th
56 Cal App 4 235; 65 Cal Rptr 2d 307 (1997)
http://caselaw.lp.findlaw.com/data2/californiastatecases/b099006.doc
REVIEW FOR EXAM NEXT WEEK –OPEN BOOK AND CODE
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Fall 2012 – Syllabus and Reading Assignments
WEEK 7: Components of A Will; integration; incorporation by
reference; republication by codicil; acts of independent
significance; contracts related to a will; Introduction to
construction of Wills; use of extrinsic evidence to correct
mistake
Open book exam in the second half of class
CC Chapter 4: pages 121-132
Cases:
STEWART V SEWARD
ESTATE OF ZIEGLER
Text Chapter 4 : CONTINUED
Page 307-328; make sure you read the Notes on Acts of Independent
Significance (page 323) as there are no cases illustrative of concept (See CA
PC 6131, page 123 of CC)
CASES:
CLARK V GREENHALGE page 310 – incorporation by reference
SIMON V GRAYSON page 315 – incorporation by reference
JOHNSON V JOHNSON page 317 – republication of will by codicil
Text Chapter 5: Construction of Wills:
Page 335-351
MAHONEY page 336 – judicial use of plain meaning of language
ARNHITER page 343 –judicial willingness to strike mistaken term
ESTATE OF GIBBS page 344 – judicial reformation to correct
mistake
ERICKSON page 345 – judicial reformation of will to correct
mistake
6130 – incorporation by reference; 88 – will includes codicil; 6131
– acts of independent significance; new code section 6132 –
writing regarding personal tangible property; 21700 – contract
to make a will or other instrument; 6122 – dissolution revokes
provisions in favor of ex spouse; 5600 – revocation of non probate
transfers after dissolution; 5601 – termination of joint tenancy
interest after dissolution
CA Civil Pro. 1856 – parol evidence
CPC Codes:
Outside Cases/Reading:
BATTUELLO V BATTUELLO 75 Cal Rptr 2d 548; 64 CA4th 842 (1998)
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/64/842.html
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Fall 2012 – Syllabus and Reading Assignments
Read Article by Stimmell, Stimemel and Smith
Contract to Make a Will (google the article)
Optional Reading – great article; if nothing else keep for future reference
When Death and Divorce Collide;
Trusts and Estate Quarterly – Spring 2005 (I’ll email those who want a copy)
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Fall 2012 – Syllabus and Reading Assignments
WEEK 8: Construction of Wills- continued; change in
circumstances – changes in beneficiaries (lapsing gifts);
antilapse statute; changes in property; In class review of exam
Review exam in class
CC Chapter 5: pages 133-151
Cases:
CITIZENS BUSINESS BANK V CARRANO
ESTATE OF DYE (PART II)
ESTATE OF LENSCH
BROWN V LABOW
Read ESTATE OF MOONEY and ESTATE OF BEGLEY both cited in the
problems on page 145-46 of CC: Great review cases
Text Chapter 5: Construction of Wills - continued; Mistake or Ambiguity;
Lapsing interests Page 358-392 (But skip 381-389)
CASES:
ESTATE OF RUSSELL page 359 – predeceased canine
beneficiary
Skim RUOTOLO page 367 – lapse of bequest (I don’t think well
reasoned, important facts not addressed but will discuss briefly)
DAWSON page 376 – effect of death on class gift
Make sure you read the sections on pages 390-392
Outside Reading: ESTATE OF AUSTIN (113 CA3rd 167) December 11, 1980;
change in form; no extinction;
http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/113/167.html
ESTATE OF DUKE (12/15/2011) B22795; recent California case regarding use
of intent and extrinsic evidence if no ambiguity
ESTATE OF TOLMAN (2/11/10) 181 CA 4th 1433 – general disinheritance
clause does not show contrary intent with respect to anti-lapse statute
CPC Codes:
5000 – POD accounts; 5020 – transfer of community property;
5301- multiple party accounts; 5302 – rights of survivor to joint
account; 6300 – pour over wills; 21110 – anti-lapse statue; 21111
– effect of failed transfer; 12002 – specific devises of real
property; 21117 – general, specific, demonstrative and residuary
gifts; 21131 – no right of exoneration for loan on property; 21132
– ademption, change in form – entitlement to posthumous stock
splits & dividends; 21133 – ademption, right to unpaid proceeds;
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Fall 2012 – Syllabus and Reading Assignments
CA Civil
Codes
21135 – satisfaction – deduction from testamentary gift; 21402 –
order of abatement; 21403 – abatement within class; 21612 –
abatement to satisfy omitted spouse’s share; 21109 – failure to
survive decedent; 21110 – anti-lapse statue; 21111 – effect of
failed transfer;
682.1 – community property with right of survivorship; 683-683.2 –
joint tenancy
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Fall 2012 – Syllabus and Reading Assignments
WEEK 9:
Restrictions on Power of Disposition –
Protection of Spouses and Children; Introduction to Trusts2
note – we skip chapter 6; will come back to it
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CC Chapter 7: page 183-192
ESTATE OF WILL is cited in the notes on page 187 – I recommend you skim
this case.
CC Chapter 8: page 193-199 (top)
Cases:
CURDY V BERTON
Chapter 7: Omitted Spouses and Children; Marital Agreements
Page 469-483; skim the elective share provisions of other states and under the
UPC; think about the different approaches; what is included in the “estate” for
such purposes? pages 499-501; 506-515; 519-520; bottom of 521-525; family
maintenance (see statutes in CA below); 527-539 – not any good cases on the
CA statutes so really important that you READ the applicable statutes
CASES:
Skim LAMBEFF page 522 – note Australian law
GRAY page 528 – unintentional omission
KIDWELL page 536 – pretermitted heir
Chapter 8: Trusts; Introduction and Creation
Pages 541-543 (skim historical discussion); 547-588 (skip taxation section); 59395
CASES:
JIMENEZ page 558 – beneficiary’s demand that Trustee provide
accounting
Skip HEBREW UNIVERSITY page 563, 566 characterization of
failed transfer as a trust (two cases)
UNTHANK page 569 – characterization of donative promise as
trust declaration
Skim BRAINARD page 572 – trust corpus based on expectancy
Skim SPEELMAN page 572 – trust corpus based on expectancy
CLARK page 579 – necessity of ascertainable beneficiaries
Skip SEARIGHTS ESTATE page 582 – Trustee’s obligations in
honorary trust for a pet (see CA statute on point) OLLIFFE page 593 – secret & semi-secret trusts; what is the law in
CA?
I’ve modified the order of the reading for the first time so there may be adjustments..stay tune
I think this is when Moot Court Competition gets intense, so the reading is a bit light – reading may get
re-arranged.
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Fall 2012 – Syllabus and Reading Assignments
CPC Codes:
UPC Codes:
Family Code
6540 et seq, - family allowance during administration; 60 et seq, homestead exemption; 6501 et seq – personal property
exemption; 100 – disposition of cp after death; disposition of quasi
cp; 140-147 – waiver of spousal rights; 15211 – duration of trust
for non charitable purpose; 15212; pet trusts; 21610- share of
omitted spouse; 21620; 21611- exceptions to omitted spouse
rules; 21612 – exceptions to omitted child rule; 6560 – share of
omitted spouse when T died prior to 1/1998; 15205 – no
requirement for designation of beneficiary;
1615 – premarital arrangements
What California Code section authorizes “pet trusts”?
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Fall 2012 – Syllabus and Reading Assignments
WEEK 10 Rights to Distributions From Trust Funds; Trust
Administration; the Fiduciary Obligation
We’ll watch the movie Descendants and discuss the issues presented
CC Chapter 10 page 239--249
Chapter 10: Introduction to Trust Administration; Fiduciary Duty; Duty of
Loyalty; Prudence; Pages 675-685; read article on Co-Trustees, page 687;
skim 694-699 – but make sure you review CA’s corresponding statute; 702-709;
712-721
Cases:
HARTMAN V HARTLE page 675 – duty of loyalty
IN RE GLEESON’S WILL page 676 - conflicts
IN RE ROTHKO page 678
IN RE ESTATE OF JANES page 702 – risk, return diversification
WOOD V. US BANK page 712
CC Chapter 14 - Rule Against Perpetuties
CPC Codes:
15620 – co-trustees; 16000 – duty to administer trust; 16002- duty
of loyalty; 16003 – duty of impartiality; 16004 – conflicts of
interest; 16012 – duty not to delegate; 16045 et seq – Prudent
Investor Act –skim, but note 16052 re. delegation of investment
responsibility; 16060-16064 – duty to notice and accounting;
16440- breach of trust – damages; skim powers of a trustee
16200 et. Seq; Prudent Investor Act (skim)
PC21200 et seq Uniform Statutory Rule Against Perpetuities; PC
21205 – 21 years after life in being or 90 years;
UPC Codes:
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Fall 2012 – Syllabus and Reading Assignments
WEEK 11: Non probate transfers; Will Substitutes; Trusts –
continuing; Constructive Trusts And Resulting Trusts; Creditor
Issues In Trusts; Modification of Trusts
CC Chapter 6: pages 153-181
Cases:
ESTATE OF HEGGSTAD
MASRY V MASRY (in my opinion, this case doesn’t belong here,
but read it here, and we’ll discuss again in a few weeks…
AGUILAR V AGUILAR
LEE V YANG3
DORN V SALMON
Text Chapter 6: Non probate transfers
Pages 393-397; 416-417; 426-431; 443- article on pour over wills; skim 448-468
Cases:
STATE STREET BANK page 416 – self settled trusts liable for
debts of testator
EGELHOFF v EGELHOFF page 426 – ERISA pre-emption
Optional Reading: BUSH v SCHIAVO page 459
Outside Cases:
ESTATE OF MIRAMONTES-NAJERA 118 CA 4th 750 (2004)
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/d042212.html
ESTATE OF ALLEN
12 CA4th 1762 (1993)
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/12/1762.html
IN RE. MARRIAGE OF RUELAS
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2007/b191655
.html
CPC Codes:
6122- provisions revoked in dissolution; 12002 – specific devises
of real property; 21109 – failure to survive decedent; 21110 – antilapse statue; 21111 – effect of failed transfer ; 5000 – POD
accounts; 5020 – transfer of community property; 5301- multiple
party accounts; 5302 – rights of survivor to joint account; 6300 –
pour over wills; 19001 – property subject to claims; ; 6400 et seq
This case is being revised by Assembly Bill 2683 – now chaptered and signed into law.. Please review
legislative change.
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Fall 2012 – Syllabus and Reading Assignments
CA Civil
Codes
15400 – presumption of revocability; 15401; methods of
revocation, modification; 15402 – modification; 15403modification of irrevocable trusts; 15040; 15409; - what is the
difference between this three statutes? – California Health
Care Decisions Act (summary review);
682.1 – community property with right of survivorship; 683-683.2 –
joint tenancy
I’ll discuss use of Powers of Attorney and Health Care Directives – Section F
Chapter 6
Chapter 9: Modification Of Trusts: Pages 641-659;
Cases:
IN RE TRUST OF STUCHELL page 643 – modification of trust
Skim IN RE RIDDELL page 645 – special needs trust
IN RE ESTATE OF BROWN page 653 – termination of trust
What is the Clafin principal? top of page 653
I know this part is out of order, but I think it can fit here as a separate unit.
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Fall 2012 – Syllabus and Reading Assignments
WEEK 12: Trusts- continued; administration; creditor issues;
CC Chapter 8:
Cases:
CABRAL V SOARES
CC Chapter 9
Cases:
pages 199-203
page 203-238
LAYCOCK V HAMMER Rights of Beneficiary’s creditors
VENTURA COUNTY Special creditor status
YOUNG V MCCOY Restitution Creditor – discretionary trusts
CANFIELD V SECURITY –FIRST NATIONAL BANK spendthrift
provisions/support trust
DeMILLE v RAMSEY –limits on spendthrift protection (local case –
example of good lawyering in drafting of documents)
CHATARD v OVEROSS – spendthrift clauses
SHEWRY V ARNOLD – special needs trusts
Skim CONSERVATORSHIP OF KANE – changed circumstances
Chapter 9: Rights to Distributions from Trust Fund – Beneficiaries and
Creditors; Page 597-634 (skip Arbitration Clauses); much of the creditor
discussion you can skim as it is cover by CA cases, except for cases specifically
assigned.
CASES:
CPC Codes:
MARSMAN page 598 – right of beneficiary to distribution from trust
SCHEFFEL page 616 – spendthrift trusts as shields against
creditors
FTC V AFFORDABLE MEDIA page 628 – offshore trust
IN RE LAWRENCE and Epilogue #1 page 634 – top 635
15300—15309 – restrictions on voluntary and involuntary
transfers (creditor’s rights);
If you want a good overview of trusts go to:
http://www.scselfservice.org/probate/prop/TransferringTrustProperty.htm
Outside Reading: good review case
ESTATE OF POWELL (2000) 83 CA4th 1434; 100 CR2d 501; see also AB
1683; now chaptered (signed in to law – how has Section 15401 changed?)
GARDENHIRE V. SUPERIOR COURT (2005) 127 CA4th 882
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/127/882.html
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Fall 2012 – Syllabus and Reading Assignments
WEEK 13: Trust Administration Continued; Charitable trusts;
Introduction to Powers of Appointment
CC Chapter 12:
pages 251-258
Text: Chapter 10 Read page 725-730; 736-750 (skim sections on accounting)
Cases:
HOWARD V HOWARD page 726 – income v principal, impartiality
FLETCHER V FLETCHER page 739 – duty to inform
Text: Chapter 11 Read page 751-787 (skim supervision of charitable trusts);
optional pages 795-799
Cases:
SHENANDOAH BANK page 752 – charitable purpose required
IN RE NEHER page 761 – cy pres doctrine
The Philadelphia Store – the Barnes Foundation – page 769
Skim SMITHERS page 776 – supervision of charitable trust
Looks like a lot, but not a lot of cases; easy reading (and I think interesting)
Text: Chapter 12 803-810; 813-821
Cases:
CPC Codes:
IRWIN UNION BANK page 806 – rights of creditor to reach
property subject to a general power of appointment (See CPC 682
– CA has specific statute on point)
BEALS V. STATE STREET BANK page 813 – exercise of power of
appointment
16100 – charitable trusts; 4947 - non exempt charitable trusts;
21000 charitable trusts in educational institutions; 15205 – no
requirement for designation of beneficiary; 16061.5 and 16061.7 –
duty to provide note, copy of trust; skim powers of appointment
600 et seq (read the headings primarily) , but read this in
particular: PC 641- residuary clause does not normally exercise
power of appointment
UPC Codes:
Outside Cases:
OSSWALD V. ANDERSON (1996) 49 CA4th 812
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/49/812.html
One of my favorite cases.. so ripe with sex and issues.
KAREN THOMAS V. ROBERT GUSTAFSON (2006) 141 CA4th 34
Good over all review case of use of trusts, interpretation of trusts, right to invade
principal.
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Fall 2012 – Syllabus and Reading Assignments
WEEK 14: Power Of Appointment – Continued; Construction Of
Trusts - Future Interests; Rule Against Perpetuities
CC 13-14 pages 259-263
Text: Chapter 12-14
Read pages 832-836; 837-846; 853-857; 862 (bottom)-883; read summaries of
the rule of perpetuities and the law in California; skim page 897-909
Cases:
CPC Codes:
LORING V MARSHALL page 832 – failure to exercise power
FIRST NATION BANK OF BAR HARBOR page 853 – survival to
time of possession – vested interests
DEWIRE V HAVELES page 863 gift of income
ESTATE OF WOODWORTH page 869; when do interests vest
LUX V LUX page 880; when does a class close
PC 21111 – failed transfers; PC 21114 – transfers of future
interests, when interest determined – favor late vesting;
UPC Codes:
Read articles concerning the following:
Rule In Shelley’s Case
Doctrine of Worthier Title
Outside Cases:
ESTATE OF EDDY 134 CA3d 292
http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/134/292.html
ESTATE OF BERDROW 5 CA4th 637
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/5/637.html
TIME PERMITTING AND INTEREST – WILL DISCUSS TAXES
(ESTATE, PROPERTY AND INCOME)
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Fall 2012 – Syllabus and Reading Assignments
WEEK 15: REVIEW/PARTY
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