TRUSTS AND WILLS OUTLINE - 2011
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Testamentary freedom = freedom to dictate what happens to your property after you die
o why allow such freedom
 fairness = prop is the fruits of your labor
 efficiency = confiscation encourages underproduction during life
 confiscation encourages waste at end of life
 confiscation might encourage excessive wealth transfer during life
 enforceability concern: ppl would circumvent confiscation by some fiction of
transferring just prior to death
 good for society – strengthens family ties
o what is wrong with testamentary freedom
 massive wealth inequality
 up to 80% of the capital in the econ may be inherited, not earned
 creates an aristocracy - the rich stay powerful
 seems unfair
 bad for beneficiaries
Donor’s intent controls
Dead Hand Control
- rather than leaving prop outright, you attempt to control what happens to it after you die
o ex: I’ll give you X if you do Y
- cant allow total restraint – but allow partial restraint allowed if reasonable
o how partial – think about how reasonable the partial restraint is
 is there a public policy issue
Shapira – dad gives to his son via will but says his son has to marry a jewish girl – ct says that this is
reasonable, many jewish girls out there, there is a public policy issue so it is reasonable
- cant put total restraint on marriage (son cant marry)
INTESTACY
PROBATE
- probate = ct supervised transfer of a dead person’s assets [trusts not subject to probate]
- prop passes through probate if someone dies w/ a will or intestate
- probate serves 3 functions:
o 1. It clears title – ct order that transfers ownership of prop
o 2. Protects creditors – administrator publishes notice giving creditors opportunity to file
a claim in probate
o 3. Distributes prop
UPC – Intestate – Surviving Spouse gets
- The entire estate if
o No kids or parents of decedent survives him (no kids or grandkids or parents); or
o all of d’s kids/grandkids are also surviving spouse’s kids/grandkids
 ex: h dies, leaving w, and no children or parents
 ex: h dies, leaving w, one of his parents and one child from his relationship w/ w
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ex: h dies, leaving w, both of his parents and 13 children from his relationship
w/ w
 ex: h dies, leaving w, both of his parents, 20 children from relationship w/ w and
25 grandchildren from those 20 children
the first $300k plus ¾ of any balance of the intestate estate if
o no kids/grandkids but d leaves parents
 ex: d dies intestate w/ estate of $100, and one parent – surviving spouse takes all
the first $225k plus ½ of any balance of the intestate estate if
o d leaves one or more kids/grandkids who are also surviving spouse’s but surviving
spouse also has one or more kids/grandkids who aren’t d’s
the first $150k plus ½ of any balance of the intestate estate, if
o d leaves kids/grandkids who aren’t surviving spouses
CA– Intestate – Surviving Spouse gets
- CA recognized community prop = CP [CA also recognizes domestic partners]
- CA also recognizes quasi-community prop = QCP
- Then there is separate property = SP
o This (cp, qcp, sp) is all irrelevant re UPC
- Re CP and QCP = surviving spouse gets it all
- SP has separate rules
o The surviving spouse gets the entire estate if
 Decedent leaves no kids or grandkids, parents, siblings, nieces or nephews
o Surviving spouse gets ½ of the estate if
 decedent leaves only one child, or no child but a grandchild, or
 Decedent leaves no kids but leaves a parent or parents, or siblings
o Surviving spouse gets 1/3 of estate if
 Decedent leaves more than one child, or
 Decedent leaves one child and the grandkid of a child who is dead
 Decedent leaves grandchildren from 2 or more children who die
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CA Separate Property
Is Decedent
survived by
issue?
NO.
Is Decedent survived
by one or more
parents, OR by issue
of either parent?
YES.
Is Decedent survived by:
- more than 1 child, OR
-1 child + issue of 1 or more
deceased children, OR
-issue of 2 or more deceased
children.
NO.
Spouse takes all.
YES.
Spouse takes ½.
NO.
[i.e. Decedent is survived only
by 1 child, OR by issue of
only 1 deceased child]
Spouse takes ½.
YES.
Spouse takes 1/3.
SIMULTANEOUS DEATH
- In order to take in intestacy, you must survive the decedent
- If 2 ppl in the same accident, very important to determine who died first
- Old version of the Uniform Simultaneous Death Act – if there is no sufficient evidence of the
order of deaths, we assume that beneficiary died before the donor
- Modern approach = in both USDA and UPC = need clear and convincing evidence that the
beneficiary survived the decedent by 120 hours (5 days)
o USDA has exception that don’t need the 5 days if there is clear and convincing evidence
that one spouse survived the other
SHARE OF ASSETS BTWN DENEFICIARIES
3 distribution scheme
- 1. Per stirpes – aka English Per Stirpes
o Treats e/ line of descendants the same – divide into shares at children’s generation
o Share of a deceased child w/ issue is split among that child’s issue
o So if A has 3 kids, B, C, D – A’s estate is divided into 3 – if one of the kids is dead,
example C is dead leaving 2 kids, F and G – F and G split C’s share
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o However, if there is a kid that is dead and has no kids, then you drop that – so if A had 4
kids, B, C, D and E – and E was dead leaving no kids, A’s share is split into 3 among B,
C, D
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2. Per capita w/ representation – aka modern per stirpes = CA
o Divide into shares at first generation w/ living takes
o Same example on top – we look at the surviving generation – so here there are 4 – so A’s
estate is split into 4 – E, F, G and H e/ take 1/4
o The above example – bc one of the kids is alive (D), you split at that level – so you split
1/3 btwn the kids, and F and G take C’s 1/3
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3. Per capita at e/ generation = UPC
o Goal is near/equally dear – all similarly situated relatives treated alike
o Divide into shares at fist living generation – give that portion to the person who is living
– then put the rest in a pot and split btwn the others
o So here, bc D is alive – split A’s estate into 3, give D his 1/3
 Then take the 2/3 that is left and split it evenly to E, F and G
Share of Heirs other than Surviving Spouse - UPC
- Any part of the estate not going through SS (surviving spouse) or if there is no SS, the estate
passes through the following order
o 1. D’s kids by representation
o 2. Ds parents equally, or if only one parent survived then to him
Share of Heirs other than Surviving Spouse - CA
- If doesn’t go to the surviving spouse, then it goes to
o 1. The kids of d, the kid taking equally if they are all of the same degree of kinship to d,
but if unequal degree those of more remote degree take in difft manner
o 2. If there is no surviving kid, to the d’s parent or parents equally
Transfers to Children
Who is a Child?
Adoption of a child
- An adopted child’s adoptive parents are treated as his legal parents
- The child can inherit from his adoptive parents
- Adoptive parent can inherit from the child
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o But adopted child cant inherit from or through his biological parents
o Hall – 4 kids trying to get inheritance from natural uncle – however, when dad died, the
mother married another man where the 4 children were adopted by the new man – the ct
ruled that bc the kids were adopted, they were “rebirth” such that they couldn’t inherit
from the natural dad’s family members
Adopted child treated as natural child of adopted parents – the child no longer shall be
considered a child of the natural parents
o If child still w/ natural mom and adopted dad – then child considered child of natural
mom and adopted dad
Adopting an adult
- Adopting an adult to affect your own estate plan
o For gay/lesbian couples, adopting e/o makes it harder for their siblings, parents or more
distant relatives to challenge their will/trust
o Most states allow you to adopt an adult if it will help protect your estate
- Adopting an adult to affect someone else’s estate plan
o A will or trust leaves a share to a class, and one of those ppl adopts an adult in order to
appoint them to take part of the estate
o Cts are skeptical about adopting an adult to influence someone else’s estate plan
Minary - son of decedent adopted his wife so she will be part of his mom’s estate such that the wife
would be considered the son’s “heir” and can get some of the trust if he died – ct here said that you
cant do that – even though you are allowed to adopt adults – the only reason the son did it here was to
mess up the mom’s estate – mom should be able to dispose her estate as she wants w/o her son
adopting his wife to mess it up
Meaning of a child
- Posthumously born child = rebuttable presumption that a child born to a woman more than 280
days after her husband dies is the husband’s child
o This presumption can be rebutted
- Non-marital children – most states now allow non-marital children to establish paternity
(usually through DNA) and take intestacy
- Posthumously conceived children
o Woodward v. Comm – held that a posthumously conceived child will be deemed to have
been born during the decedent’s lifetime if 1. Decedent consented to posthumous child
and 2. that he would provide for the child
o Cal Code states:
 1. Decedent consented in writing to posthumous reproduction
 2. Within 4 mths of the decedent’s death, notice of posthumous conception is
served upon decedent’s administrator, executor or trustee, and
 3. Child is in utero w/in 2 yrs of the decedent’s death
Woodward – husband dies, wife uses h’s sperm and has kids 2 yrs later and wants h’s social security
to benefit her kids – the ct here ruled that there was no evidence to show that the husband wanted to
have the kids or that he would consent to the kids so the kids don’t get the social security rts
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Advancements and Bars to Succession
- Under advancements doctrine – cts deduct the value of certain lifetime gifts from the heir’s
share of the intestate estate
- Have to answer 3 questions
o 1. Is the gift an advancement
o 2. How do you value the gift
o 3. How do you calculate the shares after deducting the advancement
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1. Is gift an advancement
o Under common law – all gifts were presumed to be advancements – heir bore burden of
proving that the gift was not meant to be an advancement – this has changed
o UPC and CA today refuse to deem gifts to be advancement unless either
 1. Decedent executes a contemporaneous writing that gift is an advancement or
 2. The heir acknowledged in writing that the gift is an advancement
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2. How to value the advancement
o Prop advanced is valued as of the time the heir came into possession/enjoyment of the
prop, or as of the time of the decedent’s death, whichever occurs first
o However – under CA – if the value of the prop is expressed in the writing, that is the
value given
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3. Calculating the shares
o Hotchpot:
 1. Add the amt of the advancement to the total estate
 2. Divide the estate into shares by representation
 3. Subtract the advancement from the share of the heir who got the gift
 However, if the heir who got the advancement dies before the decedent who
gave the advancement, the advancement doesn’t reduce the shares of the heir’s
 So if the kid dies before the decedent, there is no advancement issue
o If child received a large advancement, he will just keep it and not participate in the
inheritance at all
 Ex: A dies intestate leaving 3 kids, B, C, and D – has $100k estate
 But A gave B $80k advancement – if we did the hotchpot, B would owe
money – so B opts out of the advancement – and C and D just split the
$100k
 If in addition A gave C $20k, we can do the hotchput btwn C and D and
just ignore B (so C would get $40k and D would get $60k)
Bars to Succession
Slayer Rule
- Most states have some type of slayer rules – what the SS gets if SS killed decedent
- If state doesn’t have slayer statutes – then there are 3 approaches (Mahoney)
o 1. Killer keeps the property
o 2. Killer doesn’t get to keep the prop
o 3. Killergets the prop but then a ct of equity imposes a constructive trust on it
- Mahoney – ct opts for the 3rd option but only for an unintentionally killing
- If slayer cant take, should issue be able to take if not decedent’s issue – cts are split
o CA says no
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Effect of criminal judgment: a final conviction of intentional and felonious killing bars the
slayer from inheriting – acquittal doesn’t mean slayer can inherit
Mahoney – w killed h, h had no issues but only left parents and w, but it was manslaughter,
question of intent, so ct said that this doesn’t automatically mean that h’s parents get estate –
remand to ct
Disclaimer
- Disclaimer = voluntary refusal to inherit – usually done for tax purposes
o So heir can disclaim the prop so it will directly go to her heirs – this means that prop
will only get taxed once = not twice
- However, one heir cant screw the other heir by disclaiming her interest, having her kids get the
interest and the sibling would get screwed
o Ex: O dies intestate – has 2 kids, A and B, and A has 4 children – A disclaims
 In this case, there are 5 heirs now – A’s 4 kids and B – if A disclaims, then
under English per stirpes, O’s estate would be split 5 ways
 But UPC stops this – O’s estate would be split evenly btwn A and B, and bc A
disclaims, A’s 4 kids would split A’s half
- Any disclaimer has to occur w/in 9 mths of decedent’s death
o UPC’s minority approach contains no time limit
- Disclaimers also method to avoid creditors
o Exception – cant disclaim to avoid creditors if you have already began bankruptcy
proceeding
o Also cant disclaim if IRS is after you and you disclaim so IRS wont get money
 Drye – d owed IRS $325k, d’s mom dies leaving prop to him – d disclaims the
prop so it goes to his daughter – ct said you cant do this – the IRS here is the
creditor and you are disclaiming to avoid the creditor
WILLS
Functions of Formalities
- 1. Ritual function - performance of some ceremonial for the purpose of impressing the
transferor w/ the significance of his statements – this about how important this will is
- 2. evidentiary function - supply satisfactory evidence to the ct
- 3. protective function - prophylactic purpose of safeguarding the testator
- 4. channeling function - standardization of form– makes it easier for the cts
Witnesses Signing the Will
In re Groffman – wife claims h’s will invalid bc the witnesses didn’t sign in presence of e/o - all in the
house – h and witness sign the will in the dining room, then 1st witness goes to other room and 2nd
witness goes to dining room and signs the will – witnesses not in front of e/o – ct rules this was an
invalid will – testator has to acknowledge his will in front of both witnesses together
Stevens v Casdorp – same witness rule here that the 2 witnesses have to be together and see decedent
acknowledge \ will – here d in wheelchair, someone takes him to bank to get his will signed by
witnesses - d signs and acknowledges his will but not in front of the witnesses – ct says even though no
fraud or undue influence, he didn’t follow the rules so will ruled invalid
Wade - exception that if formalities are substantially complied w/, then ok – look at intent of the T
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Presence in Will Execution
- Lines of Sight Test
o the testator does not actually have to see the witnesses sign, but must be able to see them
were the testator to look
- Conscious Presence Test
o Testator, through sight, hearing, or general consciousness of events, comprehends that
the witness is signing
Formalities of Will
- UPC re Wills – wills must be
o 1. In writing
o 2. Signed by the testator (or by someone in testator’s conscious presence and discretion)
o 3. Either
 1. Signed by at least 2 individuals
 signed reasonable time after they witnessed signing of the will by testator – or
the testator’s acknowledgment of that signature or acknowledgment of will
 No rule here that the 2 witnesses have to sign in front of e/o
 2. Acknowledged by the testator before a notary public or other individual
authorized by law to take acknowledgments
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CA re wills – will shall be signed
o Signed by the testator (or by someone in testator’s conscious presence and discretion)
o Will witnessed by being signed, during the testator’s lifetime, by at least 2 ppl who
 Being present at the same time, witnessed either the signing of the will or the
testator’s acknowledgment of the signature or of the will and
 CA more strict bc witnesses have to be present at the same time
 Understand the instrument they sign is the testator’s will
Super Strict Stephens approach – witnesses not only sign in front of testator but sign in front of e/o (the
witnesses sign in front of testator and the other witness)
Signature in Will Execution
- Purpose to provide evidence of finality and distinguishes a will from mere draft or notes
- Different types of signature
o Type of mark
 Name in full - X, abbreviation or nickname - Electronically printed name in full
- Initials and date - Mark made by someone else at the direction of T
 Idea that signing in full name is not necessarily required
o Location of mark
 At the end of the doc
 Subscription – at the foot or end thereof
o Order of signing
 Additions to will made after signing may be invalid
 Witnesses:
 At time of t’s signing or acknowledgment, as part of one continuous
transaction
 w/in reasonable time
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Taylor v Holt- d typed will, left everything to woman he was dating – his signature was cursive type –
had proper witnesses and even got it notarized - ct held that the will was valid
- Ct held here the signature includes “a mark, the name being written near the mark and
witnesses or any other symbol or methodology executed or adopted by the part w/ the intention
of authenticating the will”
Purging –interested party a witness
- For ex – have a statute that states the witnesses cant be interested parties
- Some states will strike the gifts invalid or some will have it go through intestacy
- If there are more than enough witnesses that are not interested parties, and there is an interested
party who is a witness – ct will say that is ok
- If interested party gets less through the will than he would get via intestacy, ct says it is ok
- UPC = no rule against interested parties
- CA = rebuttable presumption that gift was procedure by undue influence
CURATIVE DOCTRINES
1. Does the will comply w/ the wills act (writing, signed, witnessed, etc)
2. If not, does a curative doctrine (substantial compliance or harmless error) remedy the flaw?
In re Pavlinko (Penn)– h and wife create identical wills and both leave the same heir, w’s brother
- H mistakenly signs w’s will and w signs h’s will - even though h/w intended the prop to go to
e/o – ct said invalid wills bc they didn’t sign the will correctly – statute says that the testator
has to sign the will and bc he didn’t, will invalid
o Strong dissent here – it was a simply mistake, have to look at the intent of the testator’s –
this will should be valid
In re Snide (NY)– similar case re Pavlinko – spouses have the same exact wills but they sign e/o’s will
– h signs w and w signs h – but here ct says that the will is valid – they signed at the exact same time,
exact same will but made the mistake – no fraud issue here – intent is crucial
Dissent – we have had these cases before and have ruled the other way
Substantial Compliance and Harmless Error
- Substantial Compliance
o ct may deem a defectively executed will as being in accord w/ statutory formalities if
there is clear and convincing evidence that the purposes of those formalities were served
 Have to actually go through the requirements and see if the purposes of the
formalities were served
 So would have to go through formality, evidentiary, ritual, etc
- Harmless Error Rule – UPC and CA
o The ct may excuse noncompliance if there is clear and convincing evidence that the
decedent intended the doc to be his will
 Don’t go through the reqs, just look at the intent of the testator
In will re Ranney (NJ)
- Atty had the witnesses only sign the affidavit and not the attestation clause of the will – w
contests the will – ct finds no fraud or undue influence – ct found that the will didn’t meet the
strict reqs of the NJ law, but found that it substantially related to the law so valid – but said
this shouldn’t be a substitute for carelessness
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In re Hall (Montana) – h has a will – then makes a new will but has no witnesses – tells w to tear up
old will, atty assures h that new will is valid, will really invalid bc no witnesses – but ct rules that there
was clear and convincing evidence that h wanted the 2nd will to be valid – so ct rules valid (harmless
error rule = looking at h’s intent)
- Under substantial compliance rule – this probably wouldn’t work
HOLOGRAPHIC WILLS
- Holographic will must be
o 1. Written by testator’s hand, and
o 2. Signed by the testator
- Signature
o In almost all states permitting holographs, the will may be signed at the end, at the
beginning or anywhere else on the face of the doc
o But, if not signed at the end, there may be doubt about whether the decedent intended his
name to be a signature
- Handwriting
o First generation: entirely written, signed and dated
o Second generation: material provisions in handwriting
 CA follows this approach, but also allows statements of testamentary intent to
be set forth in commercially printed will form
o Third generation: material portions to be in testator’s handwriting and to allow extrinsic
evidence (including typewritten language in the doc) to prove that the testator intended it
to be his or her will (UPC)
- UPC
o Will that doesn’t comply w/ attested wills reqs, can be holographic will - Doesn’t have to
be witnessed as long as material portions of doc are in testator’s handwriting
o Extrinsic evidence – intent that a doc constitutes the testator’s will can be established by
extrinsic evidence, including for holographic wills, portions of the doc that are not in
testator’s handwriting
 Under UPC, signature has to be in handwriting also, but can argue to bypass this
if intent shown by other parts of the doc
- CA
o Will that doesn’t comply w/ attested wills, can be holographic will, whether or not
witnessed, if signature and material provisions in handwriting of testator
o Any statement of testamentary intent contained in a holographic will may be set forth
either in testator’s own handwriting or as part of a commercially printed form will
- Substantial compliance and harmless error doctrines apply to holographic wills
First determine whether it complies w/ the rules
If it does not, is there a curative doctrine which applies [harmless error, substantial compliance]
Kimmel’s estate – writes ltr to family saying if something happens to him, wants prop to go to his sons
–ct says valid: 1. Testator disposed prop on the condition of an event occurring, 2. Event occurred was
his death, 3. Testator was sick when he wrote the letter, 4. Testator sent letter to the beneficiaries
- T signs ltr as “father” which is what he has done before – the intent was clear here –
holographic will is valid
- Circumstances must strongly suggest that testator was making disposition of prop in case that
his death occurred – which is what happened here
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Estate of Gonzalez – he prepares a form will and gives prop to some of his children – he has witnesses
sign a blank form of which he intends to copy the form will to that blank form but before doing so, he
died – some of the kids contest the will – ct says the only way the will valid is if it is a holographic will
but kids say the material parts of it were on the form and hence not holographic
- Ct says that where form and you fill in the form, can consider that holographic will if you have
the intent for that to be the will
- It is ok for the immaterial words to be typed and material part to be handwritten
- Ct found it to be a valid holographic will
Signature
Williams v towel – testator wrote his name in block letters at the top of the will – ct said it was a valid
signature so valid holographic will
Estate of Kuralt – has a will where prop goes to wife/son – but writes a ltr to mistress saying he wants
her to have some prop – mistress tries to probate that letter – rule here is that the ltr is a codicil if T
expresses intent and he believed he was close to death and facts show intent to convey a specific item
- D here gave a cabin to his mistress and wrote in his ltr he wanted her to have the accompanying
land of the cabin – question of whether that ltr was valid holographic will
- Ct rules ltr is valid holographic will – ltr even said he would have an atty go to the hospital to
complete the transfer of land - they had a close relationship, wrote the letter when he was dying
– said he wanted to inherit the land – didn’t give her all his estate but that specific prop – he
would financially take care of her – lots of evidence
MENTAL CAPACITY
Testator must be capable of knowing and understanding in a general way
- 1. Nature and extent of his prop
- 2. Natural objects of his bounty (those related to him, has relationship w/)
- 3. Disposition that he is making of the prop (understand what you are doing w/ prop)
- 4. Capable of relating these elements to one another and forming an orderly desire re the
disposition of the prop
Go through the 4 steps to see if they lack capacity
Majority Approach: we presume person is capable – burden falls on opponent to prove that testator
was incapable
Minority Approach – burden falls on proponents of the will to prove testator had capacity
In CA – if holographic wills -minority approach - proponent of will must prove capacity
Estate of Washburn – testator made one will in 1986, new will in march 92 and another in apr 92 –
niece challenging the capacity of testator in the last will
- In this state, presumption that you are sane, so burden falls on person trying to prove that
testator was not capable – niece has docs testify that aunt had Alzheimer’s, she was forgetful,
she didn’t recognize ppl
- Bc it was shown that she lacked capacity, the burden then re-shifts to the proponent of the will
and the proponent couldn’t rebut this evidence
- So ct ruled 3rd will invalid due to lack of capacity
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Wilson v Lane – testator writes will – later she files docs w/ ct that she cant take care of herself –
objector of will claims she was incapable, jury agrees, ct takes appeal and says she was capable
- On appeal, burden falls on person claiming it was invalid – judge says opponent didn’t prove
that testator was incapable, even though she had early stages of alzimers and some dementia,
no proof that she didn’t know what she was doing
- Dissent says there is so much proof here, she didn’t know the months, she couldn’t take care of
herself, should give the jury the benefit of the doubt
- Idea that there was evidence in capacity but cts don’t like to rule that way
Insane Delusion
- Legal term = false conception of reality and testator adheres against all evidence and reason to
the contrary - a belief not susceptible to correction
- Even if you meet 4 elements above, you can lack capacity if you suffer from an insane delusion
Majority Rule re Insane Delusion
- Is delusion insane: delusion is insane even if there is some factual basis for it if a rational
person in the testator’s situation could not have drawn that same conclusion
- Did delusion cause bequest: insane delusion materially affected or influenced the will
o Have to show the causal relationship of bequest and insane delusion
o If you can come up w/ another argument why the will is the way it is, separate from the
insane delusion, then there is no capacity problem
Minority Rule re Insane Delusion
- Is delusion insane: if there is any factual basis for the delusion, it’s not insane
- Did delusion cause bequest: insane delusion might have caused or affected the will (ie, presume
causation if there is an insane delusion and an unnatural disposition)
o Usually assume causation if there is an insane delusion
In re Strittmater – question of whether will was product of insanity – proof that she was suffering from
paranoia – she changed her will leaving to the natl womens party – proof that she had this hatred
towards men
- Ct ruled that she had an insane delusion – this hatred towards men – will invalid
UNDUE INFLUENCE
- A donative transfer is procured by undue influence if the wrongdoer exerted such influence
over the donor that it
o Overcame the donor’s free will and,
o Caused the donor to make a donative transfer that the donor wouldn’t otherwise have
made
- Undue influence = substituting testator’s free will for beneficiary’s free will
- Cts usually apply undue influence when they don’t like what someone has done w/ their will –
can either strike the whole will invalid or only parts of it
- If there is no direct evidence of undue influence, circumstantial evidence is sufficient if
contester proves
o 1. Donor was susceptible to undue influence
o 2. Alleged wrongdoer had opportunity to exert undue influence,
o 3. Alleged wrongdoer had a disposition to exert undue influence, and
o 4. There was a result appearing to be the effect of the undue influence
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If ct finds undue influence, then T didn’t have testator intent, so will invalid
Presumption of undue influence: 1. Confidential relationship and 2. Suspicious circumstances
If show this, burden shifts to alleged wrongdoer to prove no undue influence – have to prove w/
clear and convincing evidence
Types of Confidential relationship
o Fiduciary = lawyer, pwr of atty
o Reliant = financial advisor, doctor
o Dominant-subservient = one who has trust/confidence in that person, ie caregiver
Examples of suspicious circumstances
o Secrecy or haste
o Reasonable person would regard it as unnatural, unjust or unfair
o Donor’s attitude toward others changed by reason of his relationship w/ the alleged
wrongdoer
o Alleged wrongdoer assisted in preparation of the will
o Big discrepancies btwn old and new wills
Estate of Lakatosh – old woman, roger her caregiver, woman executes will giving most to roger
- Ct said presumption of undue influence: 1. Confidential relationship (dominant-subservient bc
caregivier) and 1. Unusual circumstances – most of estate goes to roger, atty of will was roger’s
cousin, roger didn’t even take care of her well
- Burden shifted to roger to prove w/ clear and convincing evidence that no undue influence and
bc he couldn’t do that, will invalid
In re Will of Moses – testator has sexual relationship w/ her atty, moses – 15 yrs younger – has will
which leaves most estate to him – relative disputes will – moses didn’t even know of the will
- Ct says there is undue influence, 1. Fiduciary relationship and 2. suspicious circ
- Question of this was not the right way to go – minority says that there was lots of evidence to
show that testator wanted moses to have the prop – maj just doing this bc doesn’t like the idea
of 15 yr younger man having a sexual relationship w/ woman
- Sets forth lots of questions re this doctrine
In re Kaufmann’s will – Robert, wealthy artist, leaves his family home, goes to NY and has gay
relationship w/ walter, Walter takes care of Robert’s business – Robert gives estate through will to
Walter – R writes ltr to family re love of W - family claims will invalid bc of undue influence
- Ct claims undue influence: 1. Confidential relationship, W took care or R’s finances, 2. Ct
claims suspicious circ – W had decision making role, too much influence on R
- Will revoked – but idea that ct just didn’t like R giving estate to W – so claims undue influence
– doctrine very criticized bc of this
CA “Care Custodian” Statute
- If CA resident, and testator over 65 who is dependent adult (cant take care of himself) gives
caregiver gift through will, gift presumed invalid
- To rebut presumption, caregiver must either
o 1. Get an atty to sign a “certificate of independent review” attesting that the transfer
reflects testator’s wishes, or
o 2. Establish the latter through clear and convincing evidence
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REVOCATION OF WILL
4 ways to revoke a will
1. Execute an anti-will
- A doc that complies w/ the Wills Act formalities, or the requirements for holographic wills, and
says “I revoke my will.”
- Under UPC, but not CA, harmless error applies
2. Perform a revocatory act
- Ripping, burning, tearing, crossing out the will – w/ the intent to revoke the will
- If instruct someone else to do it, has to be done while in the conscious presence
- Some cts allow partial revocation by physical act – so you can cross out one part of a will and
write in someone else’s name for ex
o UPC and CA allow this
- Under UPC, but not CA, harmless error applies
3. Execute a new will that revokes the previous will explicitly or implicitly
4. If the will was last in the testator’s possession and cant be found after she dies
Revocation by Inconsistency
- Create a codicil that doesn’t completely get rid of the original will
- Ex: 2003, have a will that gives all prop to X, 2008, have a codicil that gives car to Y
o This codicil is meant to supplement the 2003 will
- If destroy the 2008 codicil, the 2003 will is not destroyed
- But if destroy the 2003 will, the 2008 codicil is destroyed
Harrison v Bird – speer executes will naming H as beneficiary – 2 yrs later, speer instructs atty to
revoke will, atty tears it up and mails it to speer along w/ a ltr that will revoked –when speer dies, the
ltr and the pieces of the will are not found
- They physical act of tearing was not enough to revoke bc she didn’t do it herself and she wasn’t
present when will torn up, she told her atty to do it on the phone
- But the will, even though torn up, was not found in testator’s home, so will was invalid
Thompson v Royall – kroll makes a will, then signs a codicil, kroll tells atty she wants to destroy will
and codicil but atty just writes “null and void” on them
- Ct rules wills are still valid – didn’t revoke according to any of the 4 ways
- If atty had wrote over the will and codicil “null and void” while testator was there, that would
revoke it by the physical act, but it didn’t happen in presence of testator
- If we were to apply UPC harmless error rule, then will and codicil would be invalid bc there is
clear and convincing evidence that she wanted to revoke both
Holographic Wills
- If a holographic will doesnt contain a date of execution, and omission results in doubt as to
whether provisions or inconsistent provisions of another will are controlling, the holographic
will is invalid to the extent of the inconsistency unless the time of its execution is established to
be after the date of execution of the other will
- Ex: will in 2008 that leaves prop to A, then undated holographic will leaves prop to B, and
unclear when holographic will executed, holographic will is invalid and A takes prop
o We are suspicious of holographic wills so previous will prevails
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Dependent Relative Revocation – DRR
- A revocation of all or part of a will is ineffective if it stemmed from a mistake
- Ex: T revokes will 1 bc she incorrectly believes that her new will, will 2, is valid
- Rule based on the legal fiction that the mistake negates T’s intent to revoke
- Idea that if testator knew the truth, she would have not revoked her will in full or part – idea
that you never had the valid intent to revoke – just revoked bc of a mistake
- Revival: when T executes will 1, then revokes it by executing will 2, and then revokes will 2,
generally it does not revive will 1 unless there is additional proof that T intended to do so
o So if you revoke will 2, generally, you are left w/ no will
LaCroix v Senecal – have a will that leaves half of prop to nephew nelson L, has a codicil which
corrects nephew’s name but the witness was her husband, so codicil invalid – the prop that would go to
the nephew now is invalid
- But ct applies DRR, says that the name in the initial will was fine, but bc testator mistakenly
thought she had to fix it, we will apply DRR, nephew still gets prop
Partial Revocation by Physical Act
- If in a state that doesn’t allow partial revocation by physical act – so will says 1k to X, cross
out 1k and write in 2k, bc doesn’t allow partial revocation, X would just get 1k
- If in a state that does allow partial revocation by physical act (CA and UPC), and same facts as
above, X would get nothing bc you partially revoked the will
o However, can apply DRR here – testator is making a mistake, testator trying to give X
2k, testator is not trying to give X nothing - but bc not done properly, we will just stick
w/ what is on the will and give X 1k
Limitations to DRR
- Alternative path of disposition that fails
o Need to have something to fall back on
o If you validly revoke a will, then start drafting a new will but don’t finalize it, there is
nothing to fall back on, cant use DRR here
- Applies to situations even where there is no alternative path to distribution where the mistake is
recited in the instrument itself
o Ex: will says I give X 5k, then codicil says I revoke 5k to X bc X is dead – if X really
isnt dead, you can apply DRR and X gets the 5k
Estate of Alburn – T makes will 1, then makes will 2 which replaces will 1, she destroys will 2
thinking reviving will1 but in reality, she is not reviving will 1 by destroying will 2, so dies intestate
- Ct rules that it will apply DRR and say that will 2 is the operative will – ct says that testator
wouldn’t have torn up will 2 if she knew that tearing it up doesn’t revive will 1, bc the wills are
somewhat similar, will apply will 2
Is Will Revived
3 difft scenarios re revival: have will 1, then create will 2 revoking will 1, what happens when you
destroy will 2?
1. If will 2 wholly revoked will 1 -Revocation of will 2 does not revive will 1 unless proponent of
will 1 shows that the decedent intended the revocation of will 2 to revive will 1
- Absent such proof, testator dies intestate
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2. If will 2 only revoked will 1 in part ( so will 2 type of codicil), then the revocation of will 2
does revive the rest of will 1, unless the party arguing against revival shows that the decedent
didn’t intend to the revocation of will 2 to revive those parts of will 1
3. If will 2 is revoked by a later will, will 3 doesn’t revive will 1 unless the text of will 3 indicates
such a result is what the testator intended
- Ex: make 2007 will, then make 2008 will revoking 2007 will, then make 2009 will (or antiwill) saying I revoke my 2008 will – then you die – you die w/o a will bc the 2009 will didn’t
specifically say I am revoking the 2008 will and reviving the 2007 will, w/o such language, you
have no will
COMPONENTS OF A WILL
1. Integration of Wills
2. Republication by Codicil
3. Incorporation by Reference
4. Acts of Independent Significance
Integration of Wills
- Under the doctrine of integration, all papers present at the time of execution that T intends to be
part of the will are integrated into the will
- Things to look at whether T intended papers to be part of will
o Staples to will - Page #s - Having T sign or initial e/ page - Font is consistent
Estate of Rigsby – have 2 pages, both in handwriting, both initial and dated on top – first page starts w/
“inasmuch as I do not have a will” - then begins listing out pers prop – signed at the bottom of the first
pg, 4 lines empty, then 2nd pg continues
- Ct ruled that 2nd pg not admitted – no signature, not stapled or clipped together – some
inconsistencies w/ the first page- only first pg goes to probate, not 2nd
Republication by Codicil
- Under the doctrine of republication by codicil, cts deem a will to be “executed again” e/ time a
codicil to it is executed
- Thus, if t executes a will in 1991, and a codicil in 2009, cts will consider the will to be executed
in 2009
Incorporation by Reference
- any writing in existence when a will is executed may be incorporated by reference if the
language of the will manifests this intent and describes the writing sufficiently to permit its
identification
- allows a will to refer to other doc then in existence, and brings its terms w/in the will itself
- diff than integration bc doc doesn’t have to be present at will signing – instead, will must
clearly identify the doc
- so 1. Doc must be in existence at time of will, 2. Sufficiently described in will, 3. Intent of T to
use that doc
Clark v Greenhalge – T has will - states there is a “memorandum” which lists pers prop that should go
to difft ppl – has a farm picture that she tells nurses and Clark that she wants Clark to have the farm pic
– testator dies, prop distributed but nothing re memorandum
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-
-
there is a notebook that is found but executor doesn’t consider it the memorandum
ct says that just bc the notebook isnt titled “memorandum,” it still serves the same function as
what testator had in the will – it is a doc that was intended to distribute the pers prop, here the
farm pic goes to clark as indicated in the notebook
so the notebook could be used as part of the will – it is incorporated by reference
Simon v Grayson – has will dated 3/25/32 that says 4k will go to the person that is listed in a letter in
my desk dated 3/25/32 – has a codicil to the will on 11/25/33 – t dies
- they find a ltr that direct 4k to be paid to x, but ltr has difft date
- ct says the ltr is the one that was mentioned in the will – even though dates are difft, it is what
T meant – the ltr was dated before the codicil, so the codicil republished the will and the ltr – so
ltr used and 4k goes to X
Johnson v Johnson - T has a typed will not signed, then handwrites on the will that he gives brother
$10 and signs the handwriting part and dates it
- opponents of will argue that the will is not valid, the codicil cant be valid bc for the codicil to
be valid, there has to be first a valid will and this one isnt bc it wasn’t signed – trying to split up
the will and codicil and 2 separate docs
- ct holds that a valid codicil does republish the original will even if will not signed/dated
- so ct rules that whole will and codicil are valid
- dissent: it is an invalid will, seems to be only the beginnings of a will, and codicil isn’t even
complete bc doesn’t have any reference to the will – whole thing should be invalid
Acts of Independent Significance
- a will may dispose of prop by reference to acts and events that have significance apart from
their effect upon the dispositions made by the will, whether they occur before or after the
execution of the will or before or after the testator’s death
- non-testamentary acts – acts that are unlikely to be motive by testamentary consequences are
permitted to have testamentary consequences w/o Wills Act compliance
- ex: my car goes to X, if T buys a new car, that new car will got o X
- ex: dad leaves art collection to X and money to Y, he buys new art before he dies, that also
goes to X
CONSTRUCTION OF WILLS
Mistaken or Ambiguous Language
2 traditional rules that bar the admission of evidence to vary the terms of a will
1. plain meaning or no extrinsic evidence rule
- extrinsic evid may be admitted to resolve some ambiguities, but the plain meaning of the words
of the will cant be disturbed by evidence that another meaning was intended
2. no reformation rule
- reformation is an equitable remedy that, if applied to a will, would correct a mistaken term in
the will to reflect what the testator intended the will to say
Mahoney v Grainger – T has will that leaves residue to heirs to divide equally, the true heir according
to the will was the aunt, however, while T was dying, she told atty that the heirs were her 25 cousinsbut reading the language the of the will, the legal heir is the aunt
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-
ct ruled that cant bring in evidence here to show who the heirs were – the will clearly says
living heir, the heir is the aunt so the aunt gets the prop
only when the testamentary language is not clear in its application to the facts that evid
may be introduced
here the language is clear, even if the atty made a mistake drafting the will, the language is
clear that the living heir is the aunt and not the cousins
Patent ambiguity – appears on the face of the will
- ex: my estate goes to ½ to A, ½ to B and ½ to C
- traditionally, cts have refused to consider extrinsic evid to clarify patent ambiguities – they
interpret the will the best they can using interpretive principles and looking at the “four
corners” of the will – not extrinsic evidence
o today, more and more cts are abandoning this rule and admitting extrinsic evid to resolve
patent ambiguities
Latent Ambiguity – appears only when the ct tries to apply the terms of the will to the real world
- Equivocation – where 2 or more persons or things fit the description
o Ex: my estate to my cousin Laurie – but problem bc T has 2 cousins names Laurie
 Cts first admitted extrinsic evid to resolve equivocation problems
- Total Misfires – where the will describes something or someone in a way where nothing/no
one fits the description
o Ex: to Mr. and Mrs. Hess residing at X – but Mrs. Hess divorced Ms. Hess and they sold
the prop at X
 Cts also admit extrinsic evid to resolve total misfires
Arnheiter – T devises her one half share of prop on 304 Harrison to be sold and divided to her nieces,
problem that she didn’t have interest in 304 Harrison but had interest in 317 Harrison
- Ct says we usually cant make this change – but here obvious that testator made a mistake in the
building number, the rest of the will is accurate (the street name, the fact that she only had ½
interest) – so will strike out the building number and the will is valid
Estate of Gibbs – testators leave percentage of prop to Robert L. Krause at X address – problem was
that the Robert they knew was Robert W. Krause at a difft address
- Ct said that traditional rule is not to change wills or allow in extrinsic evidence when the will is
clear – but obvious here that will cited to a wrong Robert
- Ct said despite traditional rules, where such details of identification are involved such as
addresses and middle initials, that there is a high degree of mistake, we should allow
evidence in to show the intent of the testators
Erickson – T drafts a will giving most of his estate to soon wife to be – 2 days later, they marry - but
state law was that a will is automatically revoked when testator gets married – so daughter won the
case and will was revoked
- Ct rules that we can use extrinsic evid here – it was obvious that it was a mistake not to include
a contingency clause in the will to hold it valid even though they got married – the will was
designed for the wife to be
- Hence, allow in extrinsic evidence to prove that it was a mistake and that wife should have
gotten things through the will
- This court opened reformation – extrinsic evidence permitted
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UPC – Reformation to Correct Mistakes
- The ct may reform the terms of a governing instrument, even if unambiguous, to conform
the terms of the transferor’s intention if it is proved by clear and convincing evidence that
the transferor’s intent and the terms of the governing instrument were affected by a mistake or
fact or law, whether in expression or inducement
- So UPC allows clear and convincing evidence of any mistake
- but under CA law, extrinsic evidence cant be allowed unless person shows that the will is
reasonably susceptible to her interpretation
o Ex: will says “I give my house to MS” – T’s niece offers evidence that T meant to say
“MX” not “MS”
 Under UPC, this evidence is admissible - allows clear and convincing evidence
of any mistake
 Under CA, this extrinsic evidence is not admissible bc the will is not reasonably
susceptible to the niece’s interpretation
Pre-Deceasing Beneficiaries, LAPSE AND ANTI-LAPSE
- Residuary clause = safety set – anything not specifically mentioned in the will goes through the
residuary clause – whoever is designated to be the residuary
o Ex: T devises watch and 10k to A and B, and residue to C – A and B die, so their gifts
lapse and C takes both the watch and 10k
- No Residue of the Residue Rule = At common law, when residuary lapses – so for example X
is residuary but X dies before T – rule was that residuary devise that lapses passes to the T’s
heirs through intestacy
o Even if residue is split, so residue split btwn C and B, if C dies before T, C’s share of the
residue doesn’t got to B, it goes to T’s heirs
o Ex: t’s will says: “I give my house to my friend C, and residue of my estate to my
friends, O, B and J. C dies before T, leaving child U, O dies before T leaving child R. if
jur follow no residue of residue rule, who received T’s house? – 1/3 goes to B, 1/3 goes
to J and 1/3 goes to T’s heirs through intecacy – B’s share goes through intestacy
o If the jur doesn’t follow the no residue of residue rule, the B and J would split the house
[again, anti-lapse doesn’t apply here bc the jur doesn’t follow it – even if we did have an
antilapse statue, wouldn’t go to B’s heirs since they are not family (B and T) but friends]
- Class Gifts – difft than residue of residue rule, the other class members take if one of the class
members die before T
o Ex: T devises 10k to A’s children (B and C), B dies before T, so C takes B’s share
o Idea that T meant for that class to share the gift equally, if some class member dies, it
goes to the other class members
Estate of Russell – T’s will says half goes to chester, half goes to my dog, and $10 to Russell – Russell
argues that the dog’s portion should go through residue, which is T’s heir which is her
- Chester tries to enter extrinsic evidence to show that T wanted her to have the money to take
care of the dog, ct says no – ct says you have to offer a reasonable interpretation of the will
before you can offer extrinsic evidence – no reason to interpret the will, it clearly was to
go to the dog
- Gift to the dog is void, cant make gifts to dog – so the gift lapses
- Ct rules for Russell, dog not supposed to get half, dog is dead -, so goes through residue, no
residue so goes through T’s heir which is Russell
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Submitting Extrinsic Evidence
- Rule in CA – have an ambiguous will, in order to allow in extrinsic evidence, you have to give
a reasonable interpretation of what the will says, then show extrinsic evidence if it is consistent
w/ your interpretation – doesn’t mean the evidence is admissible, the judge will review it and if
the judge determines it is reasonable, then he will allow it to be admitted before the jury
- Under UPC, allows clear and convincing evidence of any mistake
AntiLapse statute
- Idea behind this is that if the beneficiary dies before T, the gift to the beneficiary doesn’t die
but it goes through that beneficiaries heirs
- Some antilapse statutes are narrow, the heirs of the beneficiary who dies have to be the kids
- UPC antilapse applies to those who share the same grandparents (siblings, uncles/aunts,
nephews/nieces, cousins)
o Ex: “I give my house to my brothers X, Y, Z” X dies before T leaving kid K – under
UPC, brothers applies to antilpase so K would take X’s share
 Some other states might be narrow where K cant take X’s share bc K is the
nephew of T
- Ex: T’s will says I give my house to my son C, and the residue of my estate to my friends, O, B
and J. C dies before T leaving kid U. who receives T’s house? = that would be U – under
antilapse, U takes C’s share bc C and T are father/child
Ex: T gives ½ to A and ½ to B – B dies before T, B has a child C – what happens to B’s share
- Common law – B’s ½ lapse and passes by intestacy – A and C split B’s share so A gets ¾ and
C gets ¼
- Without the “no residue of the residue” rule – B’s share goes to T’s intestacy, A being T’s
intestacy, so A gets the whole thing
- With Antilapse Statute – C takes B’s share, so A gets ½ and C gets ½
However, can have default rules if one dies
ex: T gives ½ estate to son A and ½ to son B, “but if A or B or both do not survive me, then I give such
predeceasing child’s share to my friend F” – so if A dies, then A’s shares goes to F – A’s share does
not go to A’s heirs bc there is a default in the will
the term Living
- if that term is in the will, antilapse statutes don’t apply, the ppl have to be living
- ex: T devises entire estate to “my living brothers and sisters, A, B, C, D and E, to share and
share alike”
- Allen v. Talley – interpreted the underlined words to mean a requirement of survival
- so if A, B and C die before T, their share does not go to their respective heirs, bc T meant his
estate to go to those living, then the remaining living siblings, D and E will split T’s estate
evenly
- Estate of Kuruzovich – if the will does not have the word living in it, then A, B and C’s share
do go to their heirs
o so will says “I devise my estate to my brothers and sisters, A, B, C, D, and E, to share
and share alike”
o no term re living, so it goes to A, B, C’s heirs bc they died before T
o this will doesn’t override the antilapse statute
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term: If he survives me .. or “to my surviving x”
- 2 difft approaches re “if he survives me” in a will
o Majority approach = this means T had an intention that the beneficiary’s descendants
should not be substituted for the beneficiary, so if the beneficiary died before T, the gift
would go to someone else, not the beneficiary’s heirs
o UPC – the terms is not sufficient expression of contrary intent – it would go to the
beneficiary’s hiers
- Ex: T devises house to “my son X if he survives me,” residue to Y – X dies before T, leaving
child D – T dies
o Majority approach: if he survives me means X’s heir, D, does not take the house, so it
goes to the residuary Y
 These words show T’s intent to override the antilapse statute
o UPC – if he survives me is not enough for intent – so X’s heir, D, takes the house
 These words, under the UPC, don’t show T’s intent to override the antilapse
statute – so the antilapse statutes would still apply
Ruotolo v Tietjen – will that said estate goes to my step-daughter “if she survives me” – step daughter
died 17 days before testator –question of whether estate goes to T’s residue or to the heirs of the stepdaughter
- Ct said that the survivorship language was not enough to disregard the anti-lapse statute
- Here, the anti-lapse statute ev en included step children so the estate would go to the stepdaughter’s heirs, not to the residue of T
- Ct said that we need to read the anti-lapse statute broadly – if T intended the bequest to lapse,
he could have explicitly said that
Class Gifts
- Common law lapse rule, gift to classes are treated difftly than gifts to individuals – if a class
member dies before T, the surviving members of the class divide the total gift
- Test re class gift – is T “group minded?”
o To A’s children
o To my nieces and nephews
Dawson v. Yucus – wife left her share of a farm to husband’s newphews, X and Y – Y died before T so
his share went to residue
- X argues that this was a class so Y’s share should go to him
- Ct said no – there are individuals named, it is not a class, bc Y died before T, his gift lapsed so
it goes to T’s residue
Antilapse Statute Trump Class Gift Concept
- If state has an antilapse statute, it will trump the class gift concept
- Ex: T devises estate to sisters A, B, C but A dies before T
- In a state w/ no antilapse statutes, bc it is a class gift, B and C would take A’s share
- However, if there is an antilapse statute, that would override the class gift concept, so in the
above, A’s heirs would take A’s share, B and C would not swoop in and take A’s share
o Note that bc it is sisters we are talking about, the anti-lapse statute would have to be
broad enough to include siblings and not just children [UPC includes anyone from the
same grandparents]
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Changes in property after Execution of Will
BEFORE DEATH
Ademption by Extinction
- Specific devises = subject to ademption by extinction – if the specific item of property is not in
T’s estates when T dies, then the beneficiary doesn’t receive the property
o Specific devises include: “my Picaso, my house, my wedding ring, etc
o do not include: $100,000
- demonstrative devises: $100,000 to be paid from the sale of my IBM stock
- Residuary devises: all the rest, residue, and remainder of my estate
2 theories of what happens re Specific Devises
- Identity Theory – old common law doctrine – if there is a specific devise, ex my wedding
ring, and it is not in my estate when I die, the gift goes away, it is adempted by extinction
o Most cts are doing away w/ identity theory
- Intent theory – UPC theory – includes the identify theory plus an escape – the escape is if the
beneficiary can show that adempting the property is not what the testator wanted – not the
testator’s intent – then the beneficiary can be entitled to the replacement for, or cash value of
the original item
o Have a kind of replacement theory – you say I give my ford to X, but buy a bmw to
replace your ford, so that bmw would go to X when you die
Estate of Anton – testator gives duplex to ½ Gretchen and ½ Robert, then residue to ½ R and ½ N
- Nancy taking care of mom T, uses assets and sells duplex to pay for nursing care for T
- When T dies, only 104k left from sale of duplex – question of whether Gretchen gets nothing
bc ademption by extinction – or if that $104k is part of that duplex
o Is that 104k part of the residue or the duplex
- under identity theory – there is no duplex so Gretchen doenst get anything
- ct uses “modified intention theory” – identity rule wont be applied to cases where specifically
devised prop is removed from the estate through an act that is involuntary to T – so here, T
didn’t even know that the duplex was sold
- ct hold that this sale was not an ademption by extinction bc T didn’t even know about it – bc
she didn’t know, T didn’t have an opportunity to change the will
- ct places the $104k as the duplex and splits it up by Gretchen and Robert
Ademption by Satisfaction
- applies to general pecuniary bequests
- in parent-child relationship, when you give something to the kid similar to the will, rebuttable
presumption that the gift is in satisfaction of the will
- ex: will says T gives B $50k, parent-child relationship; T gives B $20k before T dies –
rebuttable presumption that T intended the $20k to reduce B’s gift of $50k pursuant to the will,
so when T dies, B only gets $30k
- but the money wont take place of a specific bequest
o so T’s will says I give B my Air Jordans – if T gives B $5k before T dies, B still gets the
Air Jordans when T dies
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AFTER DEATH
Abatement
- doctrine of abatement applies when the estate doesn’t have enough property to satisfy all of T’s
bequests
- unless T specifies otherwise in the will,
o (1) residuary devises abate first,
o (2) followed by general devises, and then
o (3) specific and demonstrative devises
- All abatement w/in particular class of devise is pro rata
- Ex: will says T leaves $100k to A, house to B and residue to C – T dies owning house and $20k
= B takes the house, A gets $100k, C gets nothing
- Ex: will says A gets $100 and B gets $300; T dies with only $300 = A gets $75 and and B gets
$225
TRUSTS
- Trust = arrangement whereby trustee manages prop as a fiduciary for one or more beneficiaries
Creation of Trust
- to determine whether trust created, sole question is whether the grantor manifested an
intention to create a trust relationship
- can have a transfer of prop to an individual to hold “for the use and benefit” of another person –
this manifests an intention to create a trust
- need property – res in trustee’s possession when creating the trust
Third Party Rights
- creditors can go after trustee re claims of trust property, or payments from trust property
- creditors of the individuals can go after the trustee as an individual for claims of personal prop
or payments from personal prop
Lux v Lux – will said “my real estate shall be maintained for the benefit of my grandchildren”
- question of whether T meant her real estate to be held in trust or give outright to them
- ct said T intended the prop to be held in trust
- ct said depends on circumstances of e/ case – doesn’t matter if the magic words “trust or
trustee” were not included in her will
- the words shall not be maintained and shall not be sold strong indication of T’s intent that prop
was to be retained and managed by someone
Jimenez v Lee – 2 difft ppl gave dad money for the benefit of his kids’ educational needs – dad uses
money to invest in stock –
- ct says that both these gifts were intended to go to dad to hold as trustee for the benefit of the
kids – so couldn’t just invest in stocks – said this was a breach of his fiduciary duty
- kids get their share back
- but dsd is allowed to subtract from that amt money which he used for kids’ education
gift v trust
- 1. Need present intent to make a gratuitous transfer
- 2. Prop must be delivered
- 3. Donee must accept the gift
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-
delivery can be constructive or symbolic, doesn’t have to be physical
o constructive – gives donee means of obtaining the prop, ex key
o symbolic – gives donee something symbolic of the object, ex: written instrument handed
over when manual delivery is impractical
Hebrew Univ v. Nye – husband has a mass collection of Hebrew books, h dies, w goes to the univ and
said she is giving book collection to univ, begin catalogued books and tells univ she wants to ship
books, tells others that owner of books is the univ and not her
- ct rules that no trust was created – all w did was that she orally said she was giving the books to
the univ, she never declared a trust or made herself trustee = there must be a trust, even if made
orally, for someone to be a trustee and no proof of that here
- ct ruled that a gift was made here w/ constructive delivery – she had put together a catalogue of
all the books and orally said at the luncheon that she was giving it to the univ – the donor
announced the gift w/ the steps of making an effective transfer (making the catalog w/ the
intent to send the gifts off_
Necessity of Trust Property
- You cant have a trust w/o a “res” – some property that is placed “in trust”
- In the overwhelming majority of cases, this is a non-issue – settlor fund trusts w/ real estate,
cash, stocks, art, etc
- The only circumstances where this is an issue is when
o 1. There is doubt about whether settler even intended to create a trust, or settler tries to
o 2. To place some esoteric prop interest in trust
o 3. To create a “dry” trust that only includes an anticipated future prop rt
Unthank v Rippstein – ltr that said I will give you $200 every mth for 5 mths – it was handwritten and
ct ruled not a proper holographic will – p tried to say that it was a trust
- ct ruled not trust bc no res – no prop that settler putting aside to make payments of $500 a mth
- ps fallback argument that T putting whole estate in trust to make the payments but the ct said
there was no intention in that settlor for T to do that – no res here
Brainard – 1927 T says I am investing in stocks and proceeds will go to beneficiaries – 1928, proceeds
taxed to beneficiaries – question of whether trust was made in 1927 or whether trust was effective
1928 – was there res in 1927 or was there res in 1928 when he got proceeds from stocks
- Ct said no trust in 1927 bc no res - Profit on stock is speculative – so no trust here
- Don’t even know what stocks he is going to buy – no trust here
Speelman – T gets exclusive rts to play in 1952 – 2/1954, T promises in writing a portion of profits of
show to speelman even though show still not in production , 7/54, T dies
- Did the promise in 1954 create a valid, complete and present gift to Speelman
- This is about a gift, not trust
- Ct rules here that there was a property interest -and there was a valid delivery of a gift (the ltr)
- Ct says difft than brainard bc here there is a k rt to a license for the play – he had anticipated
expected royalties of the play
- Case similar to bell –in bell, T owned a print shop and had a k to do some future print work, so
his gift of money for future printing work was ok ct held
Seems like future expectation of profit of stocks is difft when you have a k or license of something
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Necessity of Trust Beneficiaries
- Trust cant exist unless the trustee owes fiduciary duties to someone
- Trust must have ascertainable beneficiaries – ppl who can keep the trustee honest
- Exceptions to this rule for:
o 1. Charitable trusts
o 2. Statutory purposes trust
o 3. Honorary trust (quasi-exception)
Clark v Campbell = will says “bequest to trustees all my prop... make disposal to… my friends”
- Ct rules that the beneficiaries here are not ascertainable – we cant figure out who T’s friends
are - no legal meaning of friends
- So prop here that the trustees hold will go through T’s residue
Will of Marilyn Monroe - trust said “prop goes to my executor to go to my friends and colleagues
whom I am devoted to” – prob bc never defines who friends or colleagues are – non-ascertainable
beneficiaries – not a valid trust
Honorary trust – bequest for the care of a specific animal or something else
Searight’s Estate – includes giving X $1 a day to take care of the dog
- Dog not ascertainable beneficiary bc it is not a human – but ct approves the trust by saying it is
an honorary trust
Trusts for Nonchartiable purposes
- Honorary Trust
o Transferee is not obligated to carry out settlor’s purpose
 Trustee can always say no
o If transferee declines, she holds the prop on resulting trust and prop reverts to settler or
settlor’s successor (Searight’s Estate)
- Statutory Purpose Trust
o Statutory trust for pet animal or other nonchartiable purposes
o Typically authorize ct to reduce excessive trust prop and provide for enforcement by
settler or ct appointee
Beneficiaries’ Rights
- Mandatory trust – trustee must make specified distribution to an indentified beneficiary
- Discretionary trust = trustee has discretion over distribution
Marsman v Nasca – wife leaves trust and says 1/3 of residue, income payable quarterly, principal paid
if trustees “deem it necessary or desirable” for h’s comfortable support and maintenance
- Trustee has the discretion here to give to the husband
- H falling on hard times, asks trustee for some money, trustee gives him $300 and asks for an
explanation of why he needs it
- H remarries Margaret – they sell house to daughter but allow h and Margaret to live there –
when he dies, Margaret asked to leave house - Margaret sues the trustee
- Ct says trustee breached duty to h – trustee had obligation to figure out how h as duty and
perform the duty under the trust – figure our h’s standard of living
- Ct says that Margaret will get the trust money that h was supposed to get
- Ct says that trustee discouraged h to ask for more money when trustee asked for an explanation
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Extended Discretion
- Trustee discretion is “sole, absolute or uncontrolled”
- In spite of extended discretion, trustee is still subject to judicial review
- Trustee must not act arbitrarily or capriciously, or abuse its discretion - must act in good faith
o So if trustee does something unreasonable plus, then he can be liable
o Even if trust says something not “decisions unreviewable in court,” if you show that
trustee did something “unreasonable plus” then can take to court
Exculpatory Clause
- Trustee is excused from liability or breach of trust
- If trustee is draftsman, trustee must show disclosure of clause and its meaning to settler
o The burden falls on the trustee
- Cannot excuse liability for bad faith, reckless indifference or intentional or willful neglect
o Can only exonerate from liability for negligence – not for flagrant breach of trust
o Can only exonerate trustee for unreasonableness – just not unreasonable plus
Spendthrift Trusts
- Theory is that the trust is a conditional gift; donor can impose conditions
o So settler will put conditions on the trust – cant sell it, get rid of it, creditors cant come
after it
- Idea that you are immune from creditors from coming after your interest in the trust
- You are putting a restraint on creditors against your interest in the trust
- Ex: living parent and child – where parent can provide for child – there is no recourse against
parent for child’s creditors
- Ex: Decease parent and child, where trust is to provide for child’s support – you can argue that
there is a recourse against the trust
- Some argue that spendthrift clause will create a privileged class that may indulge in
speculation, yet roll in wealth
Scheffel v. Krueger – k convicted of molesting wife’s child – wife bring civil suit against k
- K’s main source of income was the trust – trust included spendthrift: no principal shall be
payable… shall be subject to anticipation of assignment by any beneficiary thereof, or to the
interference or control of any creditors of such beneficiary”
- Trust limited for use of necessary maintenance, support and education
- Ct said there is no exception – there is a spendthrift clause and even though horrible child
molestation case, mother cant go after the trust
Shelley – trust w/ mandatory income to beneficiary and discretionary distribution of property – trust
also had a spendthrift clause
- D here married trust owing child support and alimony for 2 wives
- Ct held that bc income was mandatory the kids and wife can go after that – ct holds become
mandatory income, less protection under the spendthrift
- Re the principle – ct held that it is subject to the spendthrift bc it is discretionary
- Loophole here that the grandkids (beneficiary’s kids) were also beneficiaries to the principle, so
the kids could get the prop but not he wives
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Exceptions to Spendthrift Provisions
- A spendthrift provision is unenforceable against:
o A beneficiary’s child, spouse or former spouse who has a judgment or court order
against the beneficiary for support or maintenance
o A judgment creditor who has provided services for the protection of a beneficiary’s
interest in the trust
 This is geared towards atty/trustee relationship
- A claimant against which a spendthrift provision cant be enforced may obtain from a ct an
order attaching present or future distributions to or for the benefit of the beneficiary
Modification and Termination
- If settler and 1. all the beneficiaries agree, they can modify or terminate a trust – the trustee
can’t stop them
- If settler is dead, the traditional rule is that the beneficiaries 2. cant modify or terminate a trust
if doing so would contravene a material purpose of the settler – Claftin doctrine
- idea that the property still belongs to the dead settler, not the beneficiaries
o Traditionally, the following types of settler-imposed directives qualify as a material
purpose
 Spendthrift clause
 Requiring the beneficiary to reach a certain age before receiving a distribution
 Giving the trustee discretion to make distributions
 Support clauses (Marsman)
- Under traditional equitable deviation rule, trustee may deviate from the administrative (not
dispositive) terms of the trust in light of changed circumstances not anticipated by the settler
o deviation must be necessary to accomplish the trust’s purpose – have to show that settler
would have done this if he knew what was going on
o can apply even if all beneficiaries don’t agree
o administrative, but not dispositive terms = issues like what the trustee can invest in
o dispositive = who gets what and when
Stuchell – T dies, will creates trust for family
- when Edna dies, principal to be distributed to her children or their descendants per stripes
- Edna’s son is unable to live independently
- Question of whether trust can be modified to provide for continuation as special needs trust if
necessary to preserve John’s public assistance?
- Other beneficiaries are trying to secure the trust – trying to withhold it from the state so john
would still get the assistance from the state and then the other beneficiaries can take that money
- Ct says cant do that, the only reason they want to change trust is to benefit the beneficiaries
- Also, this seems to be a dispositive, not administrative term so cant use equitable deviation rule
Modern Law - Equitable Deviation
- CA passed statute that allowed trustees to modify or terminate not just administrative but also
dispositive provisions of a trust if circumstances not anticipated by the settler would defeat or
substantially impair the purpose of the trust
- No distinction btwn admin or dispositive terms - rule has been liberalized
- So have to show:
o 1. Circumstances not anticipated by settler
o 2. Circumstances would defeat or substantially impair purpose of the trust
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Riddell – parents have a will that say, “when our children die, principle to be distributed to their child
(grandchildren)” – one of the grandchildren, Nancy, cant live on her own
- can trust be modified to provide continuation as special needs trust for nancy’s benefit?
- Trying to meet equitable deviation test
- 1. Unanticipated circumstances – this is met bc the settler didn’t know that nancy would not be
able to live independently
- 2. Change to further purpose of settlers –ct says that trustees can do that here – the purpose of
the trust was to take care of the grandchildren, so can change the trust to take care of nancy –
idea that if settlers knew, they would have done it to take care of nancy
Trust Protector – checks on the trustee
o Examples of protector powers: Replace trustee - prove modifications to trust provisions Terminate trust - Select a successor trust protector
Claftin rule – Modern Law
- CA allows all beneficiaries to agree to modify or terminate the trust if “the reasons for
modification or termination outweigh any conflicting material purpose of the settler”
o If change seems more important than material purpose, can change it
- UTC preserves the traditional Claftin rule and forbids modification or termination when doing
so would violate a material purpose of the settler
- Definition of material purpose has narrowed
o Spendthrift clause, standing alone, is no longer a material purpose
o Material purpose = particular concern or objective on the part of the settler, such as
concern w/ regard to a beneficiary’s management skills, judgment or level of maturity
Estate of Brown – will that read: “trust shall be used to provide an education for the children of my
nephew… when purpose accomplished, the trust shall continue for the care, maintenance and welfare
of my nephew and wife for and during the remainder of their natural life”
- Money used to pay for nephew’s kids’ education, then to live the life style they were
accustomed to - Instead of the lifestyle part, nephew want property- all beneficiaries consent
- Look to see what the material purpose of the settler was – under tradtl doctrine, the purpose
would be the lifestyle, not the property, didn’t want to give the property in one lump sum, if
sell property, it is much difft than the material purpose
- Ct didn’t see this - Real issue is that the material purpose was for the family to continue living
in the house and that the nephew’s kids could also use the prop even after the parents died – if
parents get the prop here, they can sell it and do as they want
- So ct rules cant get the prop – difft than the material purpose
- CA might have ruled difftlly since they use the more modern deviation rule
CHARITABLE TRUSTS
Private Trust
For benefit of an ascertainable
Purpose
beneficiary
Claflin doctrine
Modification
Equitable deviation
Beneficiaries
Enforcement
Other
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Charitable Trust
For the benefit of a charitable
purpose
Cy pres doctrine
State Atty General
Exempt from RAP and certain taxes
Charitable Purposes
- To create a charitable trust, settler must have a charitable purpose
o 1. Charitable purpose was the dominant purpose of the trust and
o 2. Trust is actually likely to further that purpose
- trusts which are devoted to mere benevolence /liberality/generosity cant be upheld as charities
- if simply for the benefit of “all employees” – that is not charitable
- but trust to “benefit sick or needy employees” is charitable
- trust awarding scholarships for education achievement is charitable
Charitable purpose includes:
- Relief of poverty
- Advancement of knowledge or education
- Advancement of religion
- Promotion of health
- Govtal or municipal purpose
- Other purposes that are beneficial to the community
Shenandoah Valley Natl Bank v Taylor – trust that said: on last school day of e/ calendar yr before
Easter, my trustee shall divide the net income into as many equal parts as there are children and shall
pay one them, to be used by such child in the furtherance of his obtainment of an education
- Ct ruled not a charitable trust bc dominant intent to bestow happiness upon children on 2
holidays – even though settlor’s intent to further education, trustee isn’t supposed to do that, all
trustee does here is divide the money and give it to the kids
- Trust is merely benevolent and doesn’t serve any charitable purpose
Cy Pres
- Charitable trust can be modified under cy pres if
o Settler has a general (not specific) charitable purpose
o If carrying out settlor’s wishes would be impossible, illegal, impracticable or wasteful
- the ct may direct the application of the trust property to another charitable purpose that
approximates the settlor’s intention
- Presumption of general charitable intent
o Party opposing cy pres must show donor lacked general charitable intent
In re Neher – trust said: my home, as memorial to the memory of my beloved husband, H, w/ the
direction to said village that said prop be used as a hospital to be known as H memorial hospital
- Where hospital was supposed to be, town said that they didn’t have enough resources to upkeep
the hospital, but wanted to use the building as an admin building – said that the town next door
had a hospital which also benefited this town
- Town claiming a general intention of T to devote prop to charitable purposes instead of an
intention to limit the use of prop as a hosp
- Ct agreed that when will read as a whole, there is a general charitable purpose rather than a
particular charitable purpose
- Compliance of using building as a hospital is impracticable since there is already a hospital that
benefits the town – the gift of the prop may be executed cy pres by the ct for carrying out the
general charitable purpose – town can get the prop
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SF Chronicle – the Buck Trust
- Buck devises estate to foundation for needy of Marin– trust grows from $9 mil to $300 million
- Foundation seeks judicial authorization to use the money to also fund 4 other counties –
claiming that money increased and cy pres theory to also benefit other counties
o Foundation claiming that if she knew her money would increase, she would have wanted
other counties to benefit - She chose a foundation who also worked w/ nearby counties
- Trustee resigns, ct orders creation of new foundation as trustee
- Ct rules against cy pres petition of foundation – says that there is nothing impossible or
impracticable– it is to be used in the marin county as the settler wanted
o Just bc something becomes more efficient, like using the money for other counties,
doesn’t make it impractible – we do as the settler wanted
POWERS OF APPOINTMENT
- Persons
o Donor = creates the pwr
o Donee = holds the pwr
o Objects = persons in whose favor the pwr may be exercised
o Appointee = person in whose favor the pwr is exercised
o Takers in default of appointment = persons who take if the pwr is not exercised
- Types of appointment
o General pwr = pwr that is exercisable in favor of at least one of the following
 The donee
 His Estate
 His Creditors
 His Creditors of his estate
 This is like owning the property
o Special pwr = pwr that is not a general pwr
 this is like being a custodian of property
Ex: S transfers his house to T to hold in trust for the benefit of S during life, then to pass to A for life,
and then to such of A’s creditors as A appoints by will. S has no other testamentary instruments
- S is the donor
- A is the donee
- A holds a general pwr bc A can appoint to her creditors
- A’s creditors are the objects of pwr
- House is the appointive prop
- S’s intestate heirs are the takers in default bc they will receive the prop if A doesn’t appoint it
Often litigated is whether a pwr of appointment was made
General requisites for exercise of a pwr:
- A pwr of appointment is exercised to the extent that
- 1. Donee manifests an intent to exercise the pwr in an otherwise effective document
- 2. Donee’s expression of an intent to appoint satisfies the formal requirements of exercise
imposed by the donor and by applicable law, and
- 3. The donee’s appointment constitutes a permissible exercise of pwr
- Whether or not the donee has manifested an intent to exercise a pwr of appointment is a
question of construction
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Beals v. State Street Bank and Trust Co – will that says will go to my kids, and when my kid dies, goes
to whoever my kid wants in their will (this is a general pwr of appointment)
- T dies, goes to the 3 daughters –
- Isabel, one of the daughters, then dies and has a will that says the residue will go to B
- Question of whether that residue clause in her will consisted the pwr of appointment
- Did Isabel manifest an intent to exercise the pwr of appointment she held under the trust
- Ct goes w/ minority approach – residuary clause exercises the general pwr
- This case a little complicated bc isabel’s pwr used to be general, then became special (bc she
gave the prop to a law firm to control) –but ct said that bc used to be a general pwr, the
residuary clause in her will shows she exercised that pwr – so B gets the prop
Majority Rules
- Residuary clause presumptively does not exercise a general or special pwr of appointment
Minority Rules
- Residuary clause presumptively exercises a general pwr of appointment (Beals)
Super Minority Rules
- Residuary clause presumptively exercises both a special and general pwr – but for the special
pwr, the devises also have to be objects of the pwr
However, don’t need to even look at the rules if:
1. Will expressly claims to be exercising a pwr or 2
a. The will says: “I am exercising my general pwr pursuant to my father’s trust”
2. Donor imposes a specific reference requirement
Specific Reference Requirement
- If a governing instrument creating a pwr of appointment expressly requires that the pwr be
exercised by a reference, it is presumed that the donor’s intention, was to prevent an
inadvertent exercise of the pwr
- These specific reference requirements must be honored by the donee
o So donee has to say “I am exercising my pwr of appointment pursuant to x’s 2011 trust”
- Blanket exercise clause – “I give all my prop over which I have a pwr of appointment to x”
o if the pwr of appointment includes a specific reference req, a blanket exercise clause
does not exercise the pwr – it is does satisfy the specific reference req
o if the pwr of appointment doesn’t include a specific reference req, then the blanket
exercise clause satisfy the pwr of appointment, whether specific or general
 when you use a blanket exercise clause, not even important to determine
whether it is special or general pwr, as long as you have done what the settler
wanted you to do
TRUSTEE’S DUTIES
Duty of Loyalty
- trustee must administer the trust solely in the interest of the beneficiaries and not in the
trustee’s self interest
Duty of Prudence
- trustee must act reasonably
- ex: make bad investment decision and it is unreasonably – breached duty of prudence
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Hartman v Hartle – T has trust w/ prop as res – the trustees are her son-in-laws – will says that you
sell my prop when I die and divide it by my 5 kids
- trustee sells the house to one of the kids (his wife) – then wife sells it to someone else
o first sale $3900, 2nd sale $5500
- one kid claims that the kids should get a share of that $5500 sale bc the first sale was a sham
- ct holds that the trustee has breached his duty of loyalty – he sold the house to his wife – this is
self dealing = buying the prop for yourself or your spouse - breach of loyalty
- no further inquiry is needed here – it was self dealing, the executor was on both sides of the
transaction – so “no further inquiry rule” applies – no need to look into this further
In re Gleeson’s will – X leases farmland from T, T dies naming X as trustee and tells X to sell the land
and give proceeds to the kids - X decides to live on the land another yr
- Ct says you cant do that – you are the trustee and leasing the prop to yourself – you are on both
sides of the transaction, self dealing – breach of duty of loyalty
o X argued that whatever he did was in the open, did not hurt the trust, special
circumstances since farmland – ct said no to all
o Ct said good faith and reasonableness are irrelevant
Defenses to the No Further Inquiry Rule
- 1. If trustee or executor can get all the beneficiaries to consent after full disclosure, then
trustee/executor can act on both sides of the transaction
- 2. If settler actually authorizes, by the terms of the trust/will, that specific self interested action
can be done by the trustee
- Even if prove any of the above, have to show that it is reasonable
In re Rothko
- Painter dies, leaving hundreds of painting – names R, S and L as executors
- Executors dispose of paintings w/in 3 weeks to MAG and MNY
- T’s children and AG sue to remove executors and rescind ks
- Ct finds the following re the executors
o R, as an officer of MNY, was conflicted
o S, a struggling artist, was conflicted by need to curry favor w/ MAG and MNY
o L, though not conflicted, acted imprudently, bc he knew of R’s and S’s conflicts of
interests and didn’t do anything about it – breached duty of prudence
- Ct finds that lots of these contracts that were made by the executors were very questionable
- Ct finds for T’s children and AG – the executors get removed and ks rescinded
- Here there was a clear conflict of interest – R and S, had relationships w/ the galleries and L
knew and didn’t do anything about it
- Transactions simply not fair here – breach of loyalty
RULES AGAINST PERPETUITIES – RAP
- Applies only to private trusts, not charitable trusts
- in CA, attys cant be liable for malpractice if they draft a trust that violates RAP
- Rule: no interest [in real or personal prop] is good unless it must vest, if at all, not later than 21
yrs after some life in being at the creation of the interest
- law doesn’t like uncertainty – cant vest interest in something that is not clear who you are
giving your interest to
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-
RAP requires all contingencies/conditions about how to distribute settlor’s prop to be resolved
no later than 21 yrs after the “life in being” (life of some person) who is alive when settler dies
o Re the 21 yrs, only become effective if there is a # in the problem and if that # is greater
than 21, usually is a RAP problem
How to Solve RAP problem
1. find a “life in being” – it will be someone named in the trust
2. pretend you are the trustee – do you know to whom you will be distributing the prop, or do you
need to wait until something happens
3. ask how long you will have to wait – is it possible you will have to wait longer than 21 yrst
after life in being dies? If so, RAP voids that gift
Examples of RAP problems
- income to A for life, then income to A’s children for their lives, then principle to B. A has no
kids
o 1. A “life in being” 2. As trustee, we are either going to give to A’s children or B 3. No
RAP problem bc when A dies, he has no kids –we don’t have to wait for anything – it
goes to B – everything will be resolved when A dies, we will know if A has kids or not
- $10k to A when she marries and $5k to A’s first child – A is unmarried and has no kids
o 1. A is “life in being” 2. Money will either to go wife or kids 3. No RAP problem, we
will know as soon as A dies if he is married or has kids – hence don’t need to wait for
anything
- Pay income to A for life, then principal to A’s kids who reach age 20 – A has no kids that age
o 1. A is life in being 2. Money will go to kids when they reach 20 – no RAP problem bc
when A dies, the kids will reach age 20 before 21 yrs
 If the age were age 25, then there would be a RAP problem bc if A has a kid that
is 2 yrs old when A dies, we will have to wait more than 21 yrs for that kids to
be 25 – bc longer than 21, RAP problem
- To A for life, then to the first child of A to be admitted to the bar
o RAP problem bc we don’t know when a kid will pass the bar, can be more than 21 yrs
later
- To A for life then to B if any person goes to Saturn
o RAP problem bc even after B dies, someone can go to Saturn 100 yrs later,
- To A fo life, then to B if B goes to Saturn
o No RAP bc when B dies, we will know if B went to Saturn
- To A for life, then to B for life if any person goes to Saturn
o No RAP problem, B only has a life estate, so when B dies, we will know whether
someone went to Saturn
- To A (age 80) for life, then for A’s children for their lives, then to A’s descendents then living
o We third clause – to A’s descendents then living – we don’t know who these ppl are and
whether they will be living for more than 21 yrs, so this is a RAP problem (?)
- H for life, then to H’s widow for life, then to H’s surviving descendents
o When settler dies, we need to figure out in 21 yrs if the surviving descendents will get
the money
 Here, we might not be able to do that if h’s widow lives on after 21 yrs
 3rd clause – to surviving descendents is void
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