Trusts Can create it in life (inter vivos) or at death (Causa Mortis) Dont want to

deal with leases money, late ect (just want the profits). So create a trust where you
transfer ownership of the property to the name of the trust (Folami trust).
Trustee Has fiduciary duties (need to treat it a certain way pay taxes etc.)
Beneficiary for life
Separates burdens from benefits]
Estate If Ashley dies, her administrator will look for an heir (children etc.)]
Decedent(No Will)/Descendent/Ancestor/Siblings/Siblings
Kids/Grandparents/Aunts+Uncles/Cousins/State
No will/other means for property to transfer, has to go through surrogacy (lot of
money and time consuming to go through surrogacy)
Intestate (Died with will) Name executor (has to do what is written duty to
perform)
Testator (Person who dies with will)
If you fail to devise some property, goes through heirs)
Intestacy Going through heir

Wescott v. Bank of Elizabeth

Issue Who gets the money
Legal Issue Relevant Parties Westcott is grandfather of the dead soldier, Soldier, Bank,
Heirs(Next of Kin)
Dispositional Intent what he wants to happen to the property

Testamentary intent - Capacity (mindset) that this writing is the will, and it has to
be dually executed

Dead Hand Control Limit control of property and assets from the grave
Today
Freedom of disposition
Testamentary Intent
Dispositional Intent
Due execution
Balancing dead hand control
Probate Property - Under the decedents will or through intestacy. If there is no will
or if the will does not completely devise of everything he has or if the will has a
provision that was struck through for some reason. (Would be closed and probated
= creditors wont come at you later)
Real Property = Have to go through Probate
Residuary clause- Catch all clause
Non-Probate Property Property that passes through something other than will.
(Will substitute). Executed prior to death of decedent and it includes a joint tenancy,
life insurance policy (named as beneficiary). All you have to do is contact the
insurance company. Pension plan
Three reasons for probate: 1) collect and figure out everything testator or decedent
owns, to notify the creditors (including paying any state/federal taxes), also serves
as title clearing function (duty that the executor has to serve). Admin has to do it if
there is no will
1) Collection of assets
2) Notifying and paying creditors, including paying estate taxes
3) Title clearing & distribution
How does it begin?
1)
2)
3)
4)

Notify surrogacy court that someone dies

Jurisdiction
Letters Testamentary or Letters of Administration
SOL (Notice Must give notice to heirs, and those named in the will,
Contests) 3 years after death

Personal Represetatives Tyes

Executor
Administrator

Court Depends on Jurisdiction

TestateDecedent:
Devises (Devisees
Bequeaths (Legatees)
IntestateDecedent:
Descends (heirs)
Distributes (next of Kin)

For a will
Testamentary Capacity Requires mental capacity
- 18 years old
- Of Sound Mind

Four Part Test

Restatement (Third) of Property: Wills and other

Donative Transfers Sec. 8.1.)

Breeden cases Cunningham Test

Note Mental capacity can be defective due to an insane
delusion, undue influence, ect.
No mental capacity = whole will is struck. If there is insane
delusion for a certain section = only that part is struck or
whatever is effected by the insane delusion
Nature and Extent of Property
Natural Objects of Bounty
Disposition Being Made
Understanding of Overall Distributional Plan
Testamentary Intent- Requires testamentary capacity (if you have intent you would
have capacity)
Due Execution

Undue Influence Another theoretical challenge to testamentary capacity

-

Something more than just influence

When the wrongdoer exerts influence over the donor that
it gets the donors free will to go away and have the donor
give away something he doesnt want to
Age, inexperience, dependence, physical/mental weakness
Other majority juris four part test: Susceptibility,
Opportunity Disposition, and Causation

Constructive Trust
Fraud Tort action (not probate)
o Deception
o
Implicit reliance by testator
o Misrepresentation
o Intent (to deceive)
o Purpose (for the purpose of effectuating a
testamentary disposition)
o Two types of fraud (execution and inducement)
Duress Wrongdoer threatened to perform or did perform a wrongful act that
coerced the donor into making a donative transfer that the donor would not
otherwise have made
Intentional Interference with an Expectancy (1) the existence of an expectancy,
(2) intentional interference wit the expectancy through tortious conduct, (3)
causation, (4) damages
-

You need an expectancy

Or there was a will where you were named but she was
unduly influenced
Then need intentional interference with an expectancy

Tortious interference
Does not challenge probate of the will
Seeks tort damages or a remedy to a third party (has to have an expectancy)
Not limited by way of probate statute of limitations
Damages available
Not all states recognize it (those who do require an exhaustion of probate
first)

Due Execution
Three Key Issues:
1) What requirements does the statute impose?
2) How should wills be executed?
3) How should we treat wills that do not comply with the statutory formalities?
Revocation
Revocation - Termination of a will by the testators own act or by operation of law
(1) By subsequent instrument (e.g., will or codicil)
- Express or implicit? Partially or wholly?
NOTE- Must be a duly executed subsequent instrument
(2) By a physical act
- Partially or wholly?
NOTE A minority of jurisdictions do not allow partial revocation a single
devise to several people
Revocation by Operation of Law Divorce? Marriage?
The common law requires that:
(1) The testator or someone in the testators presence and at the testaors
direction
(2) With intent to revoke

Revival Bringing back a will

Partial Revocation Problems (3 different approaches we need to know)
1) UPC does not care about fraud as far as partial revocation (striking names out of
a will)
2) Other jurisdictions would not recognize the strike through (all four still take)
3) Jurisdictions will recognize the strike through (C doesnt take), will go
through to residuary (residuary clause) , goes to intestate if no residuary clause
(dont want others not in residuary taking an increased share

Tree to A, House to B, Residuary to C and B

C is struck out

Tree to A, House to B and C, Residuary to C and B

B is struck through in regards to house; C is struck through in regards to Residuary

1) UPC A Tree, B Cars, C House

3) A Tree, B House (50% through residuary) C House (50% through original)
Tree to A, House to B and C
B is struck through
A Tree, C 50% house, Intestate 50% house

Jurisdiction Revival Approaches

Will 1 executed, and then will 2 executed which expressly or implicitly revokes will
1, then will 2 revoked. Is will 1 revived?
Common Law: FYI (DONT NEED TO KNOW)
-

Will 1 is not revoked unless Will 2 remains in effect until

the testators death
Will 2 revokes Will 1 at the time of Will 2s execution and
Will 1 can be revived if the testator so intends
Will 2 revokes Will 1 at the time of Will 2s execution but
cannot be revived unless duly executed or republished

UPC
-

HYPO

If a later will that WHOLLY revoked a previous will is

revoked by PHYSICAL ACT, previous will remains
revoked unless it is evident that the testator intended it to
be revived (NOTE The presumption is that the testatrix
did not want revival but intent can be shown and the
presumption rebutted)
If a later will that PARTLY revoked a previous will is
revoked by PHYSICAL ACT, previous will is revived unless
testatrix clearly intended it to stay revoked (NOTE The
presumption is that the testatrix did want revival but
intent can be shown and the presumption rebutted)
If the later will that revoked previous will in whole or in
part is later revoked by ANOTHER LATER WILL, the
previous (1st) will remains revoked unless it is revived
(NOTE The intent to revive is sown from terms of the
later (3rd) will ONLY, and can only be revived by the terms
of that will

Will 1 Disposes of estate to A

Will 2 Disposes of estate to B
Will 3 Revokes Will 2 only
Is will 1 revived?

Will 2 revoked Will 1, Will 3 revokes 2 but since it does not name 1 it goes to
intestacy (C )
Bills will 1: Property to Hillary
Will 2: Property to Monica
What effect does Will 2 have on Will 1? UPC Will 2 revokes will 1 wholly under
inconsistency
What is the effect on Will 1 of physically revoking Will 2? UPC - Will 1 does not
come back because the assumption is that he did not want Will 1 to come back
(Evidence can be brought in to bring back will 1)

Will 1: Everything is left to Dean Lane

Will 2: Wills, T&E Casebook to Professor Folami
What effect does Will 2 have on Will 1? Partially revokes Will 1 by Inconsistency
What is the effect of physically revoking Will 2? Will 1 comes back

Dependent Relative Revocation (DRR)

Arises in most situations when the first will is revoked under a mistaken belief of
law or fact (usually physical revocation)
DRR will not apply if there is evidence that he did not want the first will to come
back
Deciding whether to apply DRR GOLDEN TIPS
-

Was the intent to revoke conditional?

Did the condition fail to occur?
Would the testator prefer revival of the revoked will over
intestacy?

Substantial Compliance/Dispensing power jurisdiction goes for second will which

may not be good under strict compliance

9/29
REVIEW
T 1,000 TO NEWPHEW CHARLES BLANK, T CROSSES OUT THE 1000 AND
SUBSTITUTES 1,5000. T WRITES HER INITIALS AND THE DATE IN THE RIGHTHAND MARGIN OPPOSITE THIS ENTRY
A) WHAT RESULT IN A STATE THAT RECOGNIZES HOLOGRAPHIC WILL?
- BECAUSE THE WILL IS TYPE WRITTEN, THE STRICT
GENERATION WILL NOT ACCEPT
- MIDDLE GROUND WOULD NOT PASS BECAUSE ONLY THE
DOLLAR AMOUNT IS CHANGING. KEY TERMINOLOGY MUST BE IN WRITING.
(BEQUEST, DEVISE ARE KEY TERMINOLOGY). HERE, KEY TERMS ARE ALL TYPE
WRITTEN
- MATERIAL PORITIONS (UPC) THEY WILL ALLOW IT
BECAUSE THEY DONT TEASE OUT KEY TERMS (FLEXIBLE)

5000 TO JOHN BOOONE. CROSSES OUT JOHN AND SUBSTITUTES NANCY

IS THE DISPOSITION TO NANCY VALID? NOT ATTESTED, KEY TERMINOLOGY
NOT IN WRITING
DRR NOT GOOD BECAUSE THE TESTATOR MAKES IT CLEAR THAT HE DOESNT
WANT JOHN TO TAKE
COMPONENTS OF A WILL
Integration All papers that are present at the time of execution and are intended
to be part of the will are treated as part of the will (Page numbers, staples, pages
flow ect. show intent to integrate pages)
Republication By Codicil A validly executed will is treated as re-executed
(republished) as of the date of the codicil
Invalid on execution grounds
Some jurisdictions allow republication of an invalid will if the codicil fixes it (NY
does this)1

Incorporation by Reference A 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 (Integration has to be
present, Incorporation does not have to be present, but has to be sufficiently
detailed and describe in the will)
Acts of Independent Significance A will may dispose of property 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 if the will or
before or after the testators death. The execution or revocation of another
individuals will is such an event
Interpretation of Wills
Plain Meaning Rule Four corners of the will. Plain meaning of the words of a will
cannot be disturbed by evidence that the testator intended another meaning
Latent Ambiguity Manifests itself only when the terms of a will are applied to the
facts
Patent Ambiguity Evident from the face of a will
Personal Usage Exception Where the courts sometime allow in evidence (oral
declaration) as far as stuff such as nicknames that would not otherwise get in
Specific or General Devise If a specific or general devise lapses, the devise falls
into the residue
Lapsed (Common Law FYI) If a beneficiary is not living when the will goes into
effect, the gift failed into the residuary (Intestacy if no residuary)
Class Gift - If a member of a class dies or pre deceases the testator, instead of that
member sharing falling to the residuary or intestacy, it is redistributed to the other
class members
Residuary Rule If it is a residuary gift, and the residuary predeceases, no residue
of a residue, the part falls to intestate (Class default rules kick in if its a class)
Void Gift If the person was already dead, falls to residuary or intestacy
Lapse is a default rule

Anti-lapse Kicked in to try and remedy a harsh result of lapse.

Protected Relationship between testator and beneficiary Lineal descendant
EX To my son Corey, residuary to law student Jonathan. Corey predeceases
Regular common law Goes to Jonathan
Antilapse If Corey has an heir, protected relationship (lineal descendant), then it
goes to his heir
(1) Qualifying protected relationship and (2) a qualifying substitute taker (3)
Contrary language of intent (If on the face of the will, there is contrary
language of intent against antilapse, it goes to where they say)
The goal if this is to keep the devise in the family
Is it a protected relationship (which turns on the relationship of the beneficiary to
the testator)
1) Lineal descendants Majority
2) Lineal descendant of grandparents - UPC
3) Do not care about the relationship Minority
Whether the predeceased beneficiary has the qualifying substitute taker
1) Has to be a lineal descendent of the predeceased beneficiary
2) Could be any heir

EX House to neighbor Reed and residuary to son Omar and first cousin Justin.
Omar predeceases. No residue of a residue
Does antilapse statute apply? If so, then go to the (3)
Antilapse trumps the class gift lapse rules
Antilapse trumps lapse residuary rules

EX To my fall 2014 wills class, residuary to Eric

Reed predeceases
Reed is my son (Eric is Reeds son)
Does antilapse apply? Protected relationship? Qualifying substitute taker? Contrary
language
Eric takes Reeds share because he is his son
Contrary Language of intent UPC Words of survivorship is not enough
Specific Gift My house to
General Gift 50 dollars to
Demonstrative Gift Hybrid gift that is both genera and specific (50k to whoever
from the proceeds of my tv show)
Residuary Gift Catch all gift
Ademption Two types (by extinction or by satisfaction}
Ademption by Extinction Where a gift that is bequeathed no longer exists or in
the hands of the testator - SPECIFIC DEVISE
Ademption by Satisfaction Presumption is for satisfact4ion where testator gave
portion of bequest while alive to child (For him not to get full 30,000, it needs to be
in writing that some was paid UPC) GENERAL DEVISE
Majority just needs evidence to show that some was given during life and you only
get the rest of it rather than all of it for the will
Addition/Accretion Absent contray intent of the testator, specific gifts to the
beneficiary usually accrued but do not
With a specific gift, additions in value, n
Specific gifts to the beneficiary usually accrued unpaid income
It includes accrued income that has not been paid out. Stock increase in value

EX Apple stock as a gift valued at 5,000..Spikes up to 70K at death.

The accrued value goes to her as long as the value hasnt been paid out by a cash
dividend. Residuary would get it if it was paid out (She only gets the stock)
Stock dividend New view is that a stock dividend is part of the specific gift and it
would go to the beneficiary
Stock split Beneficiary would take. Same percentage of ownership, its just
relocation
Exoneration
Common Law It passes to Allison without the debt attached.
UPC It passes to Allison with the debt unless there is specific writing saying
to pass it otherwise
Abatement Is there enough money to pay the debt from the residuary? Then from
general, and then last option, from specific
Spouses and children some states give them a priority
EX A devises:
Ties to B
House in NY, free and clear to C, his wife
20k to D
40K to E
Residuary to C
His estate at death: Personal effects, including ties, the house in NY with an
outstanding 25K mortgage, and 65K in cash
25K comes out of 65K left with 40K. Devise to E and D, with 40K left the court will
try to approximate that. About 13 to D and 26 to E

10/13
Intestacy

Why Intestacy?
Most often for those who:
1 Never write a will
2 Write a will that does not completely dispose of their estate
3 Write an invalid will, and/or
4 Write a valid will with invalid portions
Point of reference for Intestate Distribution
-

Rigid distribution scheme

Preference for descendants over ancestors
Relevance of intent diminished
Applies only to probate property (not non-probate
property)

Who is eligible to take?

The order in which people take?
The allocation of share among takers? (NOTE Split in
jurisdictions primarily on whether shares to takers in
equal relationship to the decedent should be distributed
equally)
Whether remote collateral relatives take at all

Descent Issues

Who is eligible to take?

-

Those who are not specifically disinherited

Those who survive the decedent

Under the UPC, the surviving spouse gets

-

100% if no surviving parent(s) and no descendant(s). And

if decedent does have children they are also the surviving
spouses. (only mutual children in other words) NOTE If
there are mutual children: parent(s) do not matter
300K + if a surviving parent but no descendant(s)
NOTE Step-children of deceased spouse do not
matter. Also, parents take more under typical intestate
non-UPC (where they get instead of
225K + if the decedents descendant(s) are also the
surviving spouses descendant(s) and the surviving

spouse has one or more other descendants. NOTE

(Mutual children and one(+) step-child of deceased)
150K + if some but not all of the decedents
descendant(s) are also the surviving spouses
descendant(s) NOTE (Mutual children and one(+) are
only the decedents)

Other half goes to heirs (other kids or parents)

Strict Per Stirpes
1st Step: First generation of decedents descendants
2nd Step: Split at next level among survivors and dead with issue (those who are
dead with no issue take nothing)
3rd Step Split and distribute equally the deceaseds share at next level (if
applicable) among issue

Per Capita with Representation (Modern Per Stirpes)

1st Step: First generation of live takers
2nd Step: If dead and has substitute takers, same distribution as above
3rd Step: In essence the same as Step 2
Per Capita at Each Generation
1st Step: First generation of live takers
2nd Step: If dead and has substitute takers, same distribution as above
3rd Step: Pool (Add) shares of the deceased with issue then and distribute the shares
equally

A died and has three children (B, C, and D)

B Predeceasing her
B left daughters (E, F, G)
C and D = 1/3
1/9 E, F, and G
Ancestors and other Collaterals

Ancestors (first line collaterals)

Everyone else (second line collaterals). Who takes? Two approaches
1) Parentelic System
More than one taker in a line?
Three approaches (per stirpes, etc)
2) Degree of Kinship
More than one in degree of kinship?
Three approaches, including parentelic tie breaker

Adopted Children
Rights Re Natural Parent
Common law (Slides)
Approaches
-

Retention of full inheritance rights with adopted child

Elimination if all ties with adopted child
Adopted child inherit form natural parents but not from
natural parents kin (Hall)
Natural parents prohibited from inheriting from adopted
child while adopted child inherits from them
Adopted child cannot inherit from natural parents except
where custodial natural parent marries and the
stepparent adopts the child (UPC)

Mom, adopted dad and step dad. Mom can inherit from and through me, but Dad
cant (UPC)

Calculating the Elective Share

-

Determine Augmented Estate (everything they both own,

eligible transfers out, gifts to wife, etc)
Determine Marital Portion of Augmented Estate (%, which
is based on length of marriage, multiplied to the
Augmented Estate amount)
Then half the Marital Portion amount
Then deduct or credit out surviving spouses assets
Result is the elective share amount to which surviving
spouse is entitled
Know percentages for 1, 5, 10, 15 years

*** Know how to do Case 5 on page 536, but nothing more difficult than that4***
9/10 if the surviving spouse is given something under the will, and made a sizeable
amount of money, elective share will be low (augmented share penalizes someone
who works more)
-

Where will specifically attempts to disinherit surviving

spouse
Will devises something that is less than you think youre
entitled to

EX -

Married for 18 years

Step 1 - Total 450k
Step 2 - 100% Martial Property (Married for more than 15 years)
Step 3 - 225K
Step 4 - -75K, -25K, -50K, -50K
Step 5 - 25K
100K to marriage and W brings 25K. H earns 400K more and W stays home. 4.5
years of marriage, H dies and leaves W 75K
300K to wife under Community Property
166K under Traditional elective share state
UPC Step 1 525K
Step 2 24% of Marital Property (4.5 years)

Step 3 63K
Step 4 63K-25K = 38K
Three US Systems for Protecting Spouses
(1) Community property
(2) Separate property with traditional elective share
(3) Separate property with various estate approach
Waiver of Spousal Rights
UPC allows waiving elective
Factors have to be in place for agreement to be valid
Unenforceable if unconscionable when executed, spouse did not have adequate
disclosure, signing spouse did not know extend of decedents property (knowledge)
Needs to be knowledge and reasonable disclosure
Grey v. Lambeff Strict Statute v. Discretion
Trusts
Intent: Settlor intent to create a trust
Settlor (e.g. Grantor, Trustor) Need evidence of intent to create trust: sometimes
need more than a statement of a trusts creation, e.g., delivery.
Trustee

Beneficiary

Rule: Trust does not fail for want of trustee

- Acceptance by, nor designation of, a trustee is not
required
- Fiduciary Duty attaches with designation, as does
personal liability for breach
Need another if the trustee is also a beneficiary
- Creditors of Beneficiary cant touch the trust
- Usually multiple beneficiaries with differing equitable
interests

O executes irrevocable trust

X is trustee
Trust instrument provides Income to A for life, Remainder to B
O delivers copy of trust and 100K to X and should be held under trust
X puts money in safe and divides it between D&E.
Os residuary legatees
Is it a trust? Affirmative act made by X, accepting his duty as a trustee
Can A&B recover the assets from D&E if it is a trust?

Four Considerations re Trust Validity

-

Whether there was intent to create a trust

Whether there was trust property
Whether there are (valid) trust beneficiaries
Whether the trust instrument was in writing, if required

Factors to consider leaning towards creation of a trust:

-

The person wished to create duties

The express goal would be best implemented by finding a
trust
The person wished to create a legal obligation
NOTE Distinguish Precatory language and/or Equitable
Charge

Declaration of Trust Oral Settlor is the trustee (declares himself trustee)

Private Trusts dont have to be identified by name, but they have to be ascertainable

How does RIVT work typically?

-

Settlor and trustee generally different (NOTE: not in

Farkas though)
On settlors death, truth assets distributed in accordance
with the inter vivos trust

Traditional Questions re validity of RIVT?

-

What was the underlying problem at common law?

Consider Farkas?

O sets up a revocable inter vivos trust naming X as trustee.

O transfers to X, as trustee, his stocks and bonds. O then
executed a will devising the residue of his estate to X, as
trustee, to hold under the terms of the inter vivos trust

Pour Over Will

Isnt the disposition testamentary (occurs after death) by a document that is not a
will and that
UPC
-

Pour over permitted for trusts created during lifetime or,

At death via a document executed before concurrent or
after execution of the will
No trust res needed

Trust Classifications (not mutually exclusive):

-

Revocable vs. irrevocable

Private vs. Charitable
Inter vivos vs. testamentary
Mandatory vs. discretionary

Categorizing trusts re Beneficiary/Creditors Rights: Restatement and UTC

Mandatory: Can compel under both unless there is a spendthrift clause
With Trustee Discretion: Restatement Can compel.

UTC Cannot compel (Exceptions as to child support and

alimony but not more than trustee had discretion to distribute
When can a creditor attach a trust (Question) ^^^

Pure Discretionary Trust The trustee has absolute discretion over distributions
to the beneficiary
Support Trust - The trustee is required to make distributions as necessary for the
beneficiarys needs
Spendthrift Trusts A beneficiary of this trust cannot voluntarily alienate her
interest in the trust, nor can her creditors attach her interest
Modification & Termination
Revocable Trust Yes, if settlor consents
Irrevocable Trust Yes. If settlor consents and all beneficiaries agree (What if
settlor is dead)
Claflin Doctrine (1) Consent of all beneficiaries and (2) Modification not contrary
to a material purpose of settlor
- A trust cannot be terminated or modified prior to the time
fixed for termination even if all the beneficiaries agree, If
termination or modification would be contrary to the
material purpose of the settlor
Application of Claflin Doctrine
Under the Claflin Doctrine, a trust will more often than not be terminated if:
(a) it is spendthrift
(b) it delays the receipt of principal until a particular age
(c) it is discretionary
(d) it is a support trust
These provisions are generally said to constitute a material purpose of the settlor
and are never fulfilled prior to their natural point of termination

UTC
The court may modify or terminate the administrative or dispositive terms of a trust
if there are circumstances unanticipated by the settlor, modification or termination
will further the purpose of the trust/settlors intent
The court may make an administrative (terms but not dispositional) change if
continuing the trust terms is impractical, wasteful, or impairs the administration of
the trust. Doesnt have to further the settlors purpose or have unanticipated
circumstances
UTC Trustee Removal
- Settlor, co-trustee or beneficiary may request remo
Davis (Trustee has not done anything)

Future Interests
Who can hold the future interest?
Transferor
-

Reversions

Transferee

Vested remainder
Vested remainder, vested remainder subject to open (Subject to RAP),
vested remainder subject to complete divestment (Subject to executory
limitation)
- Contingent remainder
Unascertainable and Condition precedent (Both Subject to RAP)
- Executory Interest
Springing and shifting (Both Subject to RAP)

EX O creates a trust for A for life, then to As children who survive A

A Life estate
As Children Contingent Remainder (has to have children and survive A)
O Reversion
Passes RAP because within 21 years of As death we will know if he had
children/whether they survived A
Contingent Remainder Will never cut short a proceeding estate. Has to be natural
termination
Executory Interest Does not natural follow the end of the estate
EX for A for life, then to B if B survives A
A Life estate
B Contingent remainder (has to survive A)
O Reversion
Passes RAP because within 21 years of As death we will know if B survived him
EX For A for life, then to As children
A Life estate
As children Contingent remainder
O Reversion
Passes RAP
EX For A for life, then to As children (A has a child)
A Life Estate
As Children Vested remainder subject to open

EX For A for life, then to As heirs

A Life Estate
As heirs Contingent remainder
O Reversion

EX - For A for life, and on As death to As children in equal share (At time of
conveyance, A has two children B and C. Two years later, D is born to A. A year after
that B dies intestate)
Originally A Life Estate
B and C Vested remainder subject to open
D Vested remainder subject to open
B dies Just goes to his heirs
EX For A for life, and on As death to the heirs of B (At conveyance, A and B are
alive and B has two children C and D. D dies, leaving son E, and a will devising
property to W. B dies devising everything to charity. A dies, survived by C, E and W.
At the time of conveyance
A Life estate
Bs heirs Contingent remainder (heirs are determined upon death)
VRSCD v. CR
Whats the difference?
RAP Relevance

Turns primarily on punctuation

VRSCD cuts short the prior interest while CR does not
VSRCDs are given to an ascertainable person with a
condition subsequent which can take the gift away
CRs are given to unascertainable person/s and have a
condition precedent that must occur before person takes

CR is subject to RAP, VRSCD is not

EX For A for life, then to B if B survives A, and if B does not survive A, to C

A Life estate
B Contingent remainder
C Contingent remainder
O Reversion
Contingent remainder because the words if B survives A are incorporated
into Bs gift
Ex For A for life, then to B, but if B does not survive A, to C
A Life estate
B Vested remainder subject to complete divestment by Cs executory interest
C Executory interest
Between the commas setting off Bs gift, there are no words of condition
There is a condition subsequent to Bs gift introducing the divesting gift over to C

EX For A for life, then to B, but if B dies before A without issue surviving B, then to
C at As death
A Life estate
B Vested remainder subject to complete divestment by Cs executory interest
C Executory interest
EX For A for life, then to As children, but if at As death A is not survived by any
children, then to B. At the time the trust is created, A has no children.
A Life Estate
As Children Contingent Remainder (Not ascertainable, commas dont work)
B Alternate contingent remainder
O - Reversion