Wills and Trusts
Professor Jenkins
“In Terrorem” Clause


“A beneficiary shall
forfeit his bequest
under the will if he
contests the validity
of the will.”
Rule: Is valid in
Texas, but will not
apply to an attack on
the will that is based
on reasonable
grounds and
instituted in good
Property Destruction Orders
Under the Will

Court Will:


Weigh social
utility of
destruction
against loss to
society of
valuable
resource.
Weigh
motivation of
testator.
Probate Process



Probate or
administration of

estate of living
person-VOID.
Probate of one
believed to be dead
proved by
circumstantial
evidence
4 year statute of limitations
(unless proof that party was not
in default-muniment of title only)
Probate of Lost Will


Date of execution
Executor
Proof Required




Person is deceased.
4 years have not elapsed
since date of death.
Court has jurisdiction and
venue.
Person applying for
“letters” is qualified.
Venue

First sought in
primary or
domiciliary
jurisdiction (where
decedent was
domiciled at time
of death).
Intestacy- Statutes of Descent
Descent and
Distribution
Section 45-Community Property
Disposition of Whole Community
Real Estate






Married-No Kids All TO SS
Married W/Kids of Surviving SpouseALL TO SS
Married-Kids not Kids of Surviving Spouse1/2 SS & 1/2 KIDS
Other Property






Married-No KidsALL TO SS
Married W/Kids of Surviving SpouseALL TO SS
Married –Kids not Kids of Surviving
Spouse½ SS & ½ Kids
Separate Property
Probate Section 38(a)
Real Estate

Unmarried-W/Kids


To Kids equally per stirpes
Unmarried-No Kids

½ to MOM & ½ to DAD (or
brothers and sisters in place)
Other Property

Unmarried W/Kids


To Kids equally per stirpes
Unmarried No Kids

½ to MOM & ½ to DAD
Real Estate

1/3 SS
for
life
Married w/
Kids
2/3 to kids
equally
Real Estate
Married –
No Kids
¼ to
MOM
¼ to DAD
½
to
SS
Other Property
1/3 SS

Married
W/Kids
2/3 to Kids
Equally
Other Property

Married-No
Kids
ALL TO
SS
Section 41
Half Blood
S
Half
1/5
B, D
A (Decedent)
Whole
2/5, 2/5
Will Execution-Section 57

Who may execute?
One who is over 18 years (or
married or a member of the armed
forces).
 Of sound mind






Nature & Extent of his/her property.
Persons who are “natural objects of
her bounty.”
The disposition being made.
How these elements relate to form an
orderly plan for distribution.
These only set the stage
Testator must have mind &
memory relevant to all the things
AND
Must understand the significance
of her acts!
Relate
Direct Bearing
ACTS
on
Testamentary
Act
Other
Factors
To
Time
Of
Execution
Insane Delusion
 Delusion-
reality
 Insane
false conception of
Delusion- false
conception of reality to which
testator adheres against all
reason and evidence to the
contrary
Execution by Interested Witness
TX Section 62
“Purging” Statute

A bequest to subscribing witness
shall not be void if his testimony
proving the will is corroborated
by…
 ONE OR MORE DISINTERESTED
and CREDIBLE PERSONS.
Anyone
present at the
execution.
Section 61

If no corroboration, and intestacy
occurs, interested subscribing
witness takes.

LESSER OF WILL SHARE OR
INTESTATE SHARE.
Will Revocation
Intent & Capacity Required
Section 63

By subsequent




Will
Codicil
Declaration in writing, executed with
like formalities
By T


Destroying
Canceling Or causing it to be
done in his presence
DRR
Doctrine of Dependent Relative
Revocation & Revival


Allows court to disregard a
revocation based on a mistake of law
or fact.
TEXAS
 “No Revival of a Revoked Will”
 JURISDICTION
SIMILAR PROVISIONS
WILL 1
WILL 2
10,000 to A
15,000 to A
Gold watch to B
Gold watch to B
House to C
House to C
$5,000 to D
Residuary to X
$3,000 to E
Residuary to X
 IN
TEXAS, IF T DESTROYS
WILL # 2 THINKING HE IS
REVIVING WILL # 1,
COURT WILL REVIVE WILL
#2 UNDER DRR.
NO partial revocation by
physical act in Texas
If will is not found -
Presumption of revocation
by physical act.
Integration


Asks:
 Which pages present @ the time
of signing comprise T’s duly
executed will?
Look for:
 internal continuity
 staples.
Republication By Codicil
An implied restatement
or rewriting of the
language of a valid will
as of the date of the
codicil.
Incorporation By Reference

Applies only when instruments
that NEVER HAD testamentary
life are incorporated into a will
and given TESTAMENTARY
EFFECT


1. Will must refer to writing IN
EXISTENCE with reasonable
certainty.
2. Will description corresponds to
description and was the one
intended by T.
A Devise of Contents:
Section 58 (d) (1)



Does mean tangible, personal
property
Does not include tangibles,
choses in action, “titled”
personal property represented
by a certificate of ownership
requires a formal title transfer.
Caveat: One must expect to find
item in such a location.
Example
WILL STATES “I leave the
contents of my iron chest to
Mary.”
At death, the chest contains:
a) Passbook with $5,000 showing
on deposit
b) $5,000
c) Automobile title to antique
Mercedes Benz
d) Diamond tiara worth $1,000,000

Joint Will
The wills of 2 or more individuals in one
instrument
Reciprocal Wills
Separate reciprocal wills which
mirror each other.
Mutual Wills
Joint or reciprocal wills based on
a contract between testators.
Contractual Wills



Two Types
 Contract Not Revoke
 Contract To Will
TX: Section 59 A
 State a contracts exists
 Contain material provisions of
the contract
(Contract may be incorporated by
reference into the will if all
elements are met)
BASIS OF CONTRACT
 Survivor
will not revoke
 Contract
Law Applies
 Then Wills Law Applies
 Remedy:
Trust
Constructive
Ambiguities
Latent
Patent
Does not appear
on face of
instrument.
Appears on face
of instrument.
Extrinsic Evidence freely received to
determine intent.
Ambiguities
 WILL
I
leave $6,000
to my nephew
Ben.
There are 2
nephews named
Ben.
WILL
 I leave my beach
home in Kemah
as follows:
 25% to Ben
 25% to Jerry
 50% to Bartles
 25% to James

TRUST
A
fiduciary relationship in
which one person is the
holder of legal title to
property subject to an
equitable obligation to keep
or use the property for the
benefit of another.
SETTLOR
Trustor
Donor
Grantor
RES

TRUST PROPERTY

SUBJECT MATTER


CORPUS
PRINCIPAL
TRUSTEE (legal title)
 FOR
 BENEFICIARY
(Equitable
Title)
 “Cestui Que Trust”
Res
RES
Settlor
Trustee
For benefit of
Beneficiary
Requirement to Create Valid Private
Trust
 1.
Expression of Intent
 2. At least one beneficiary
 3. Property interest in
existence or ascertainable
A TRUST WILL NOT FAIL FOR
WANT OF TRUSTEE – THE
COURT WILL APPOINT ONE
Delivery


Constructive- gives donee
means of obtaining the object
(e.g. a Key)
Symbolic- gives donee
something symbolic of the
actual object (e.g. written
instrument)
 When manual delivery
is difficult or
impractical
Resulting Trust
 Arises
by an operation of law where an
express trust FAILS or makes an
incomplete disposition.
 Outcome?
 Takes
estate
res back to settlor or settlor’s
Power of Appointment


The right (power) to select
(appoint) within prescribed
limits who shall receive an
interest in property or how
various interests in property
shall be allocated.
Permits one to dispose of
property while postponing or
giving to another the authority
of disposition.
House to H to leave at his
death to one or more of 4
children. If he fails to
direct, then to A.
“I leave my house to H with
power of appointment under his
will.”
T’ee to
choose
among my
nephews.
Power of Appt.
T’ee at his
discretion.
Semi-secret
trust-invalid
Oral Intervivos Trusts of Land are
Invalid

Restatement

Rule: where the owner of an
interest in land transfers it inter
vivos to another, but no
memorandum properly evidencing
intent to create a trust is signed as
required by SOF, and the
transferee refuses to perform the
trust, transferee holds the interest
upon the constructive trust for the
transferor if the transferee at the
time of the transfer was in a
confidential relation to the
transferor.
Elements to Impose
Constructive TRUST
Confidential relationship
Deed by Donor
Oral Agreement to Reconvey
Real Property
Unjust Enrichment of
Transferee
Secret Trust
 Will
indicates no trust e.g. “I
leave $50,000 to Ben”
Remedy - constructive trust
Semi-Secret Trust

Will describes a trust but no terms
Result – VOID
e.g. “I leave $50,000 to Ben to dispose
as I have instructed.”
Resulting trust
Termination

Claffin Doctrine:

A trust may not be terminated
by all of the beneficiaries if it
would interfere with a
material purpose of the
settlor.
Charitable Purposes






A) Relief of Poverty
B) Advancement of Education
C) Advancement of Religion
D) Promotion of Health
E) Governmental or Municipal Purposes
F) Other Purposes the Accomplishment of
which is Beneficial to the Community.
The Doctrine of Cy Pres

Applies where the purpose of a
trust has become
 Illegal
 Impossible
 Permanently impractical of
performance
Duty to Study Terms of Trust
Instrument
Duty to Take Possession of
Trust Property
Duty to Defend Trust Against
Attack
DUTY TO EARMARK
Duty To
Separate
Separate
&
Earmark
Trust
Property
Duty to Make Trust Property Productive
Duty to Make Trust Property
Productive
$$$$$$$$
Conservative, Prudent Investment
Duty of Undivided Loyalty to
Beneficiaries
Duty not to Mingle
Duty Not to Mingle Trust Funds
With Trustee’s Own Funds
Duty Not to Delegate
Impartiality
Duty of Impartiality in Dealing
With Income Beneficiary and
Remaindermen
Duty to Retain Trust
Documents and Vouchers and
Keep Records
Duty to Account to
Beneficiaries