I Trusts Professor Serkin To Estate The Facts Spring 2012

I Trusts Professor Serkin to Estate the Facts Spring 2012
Introduction 1
1 - Testamentary freedom is our lodestar. (but we dont obey orders to destroy property)
Probate 1
2 - Probing the Probate System
3 - Only probate property goes through probate: wills cannot convey IV trusts!
1
1
Professional Responsibility2
4 - Professional Responsibility
Intestacy: did someone die without a will?3
5 - What are intestacy rules? defaults if: (1) no will; (2) no valid will; (3) will doesnt dispose of all prop
6 - Did a spouse survive?
3
7 - Living/ dead kids? Representation: (1) strict per stirpes; (2) modern PS; (3) per cap. @ each generation
8 - No spouses left & no children left? Ancestry and Collaterals, 92
4
9 - Simultaneous Death: Did the person survive the decedent for long enough to take?
5
10 - Is an adopted child a child?
5
11 - Posthumously conceived child is it issue for intestacy purposes?
6
12 - Advancements was there a lifetime gift that counts against Tmentary distribution?
7
13 - Bars to Succession: Slayers and Disclaimers
7
3
3
Will Challenges: how to strike down a will!8

14
15
16
17
18
19
20
Capacity? Did they understand 4x. Poweful attack invalidates entire will
8
Insane delusion: erroneous belief not amenable to factual refutation strike resulting dispositions
Undue Influence: confidential relationship + suspicious circumstances
9
No contest clause tell people theyll lose out if they challenge will, and give it teeth
10
Fraud? Did caretakers deceive the T?
10
Duress: the most straightforward signed under duress == invalid
10
Tortious interference w/ expectancy: collateral attack
10
Formalities: strike down will if noncompliant11

21
22
23
24
Why engage formalities that disengage Ts intent?

Witnesses: guarding against ye olde switcharoo
Signatures at the end: subscription, 227
Attestation Clauses & Self-proving affidavits
11
11
11
11
Curing defective execution?12

25 - Ad Hoc Exceptions: should we excuse obvious execution defects? early, opposite, results
26 - Substantial Compliance with formalities? (narrower than harmless error; focus on Will Act)
27 - Harmless Error/Dispensing Power? (broader; focus on Tmentary intent, novel) Not in NY!
12
12
12
28 - NY does not allow holographic wills.

29 - Was it testamentary? Did it contemplate death? No witnesses needed, handwriting serves
13
13
Holographs: did someone write something testamentary?13

Revocation 14
30
31
32
33
34
35
36
Best practices: revoke former will w/ formalities AND dispose of residuary

14
Revoking a codicil? restore original dispositions, no need for re-execution
14
Dependent Relative Revocation revocations made on mistaken perceptions may be invalid 14
by physical act + Tmentary intent (revocation of Ts copy revokes will, see 288)
14
by Operation of law, p. 305
15
by subsequent testamentary document
15
by inconsistency dispose of entire estate? UPC 2-507, p 286.
15
Revival? 16
37 - Was it reexecuted? majority rule.
38 - @ UPC, revocation might revive. presumption-shifting; complex; 2-509 pp. 304
16
16
39
40
41
42
43
17
17
17
17
17
Extrinsic evidence: can we look outside the will?17

-
Overview: Increasing T flexibility post-execution

Integration: a rule of collating
Republication by Codicil: that which does not revoke, presumptively republishes
Incorporation by reference doesnt exist in NY
Acts of Independent Significance
Modify the will to get @ what T wanted? Mistake, reformation19
44 - Mistake, Reformation: when doctrine obstructs Donors Intent

19
45 - permitted @ New UPC/Rest where clear + convincing evidence wills now just a presumption?19
Property in will changes after execution21
46 - Ademption: when specific devises once existed but no longer do result varies @ CL v. EPTL/UPC
47 - Abatement, or: when the pie is too small to pay debts and devises
21
48 - Satisfaction: Advancements Applied to Wills. Lifetime gift can satisfy disposition against estate 21
21
Did the B die before the T?22

49 - Predeceasing, eligible beneficiaries cannot take UNLESS (1) antilapse; (2) class gift
22
Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 1
2: Cal and prudential limitations on the SC

50
51
52
53
No Residue of a Residuary! But not @ EPTL

Antilapse Statutes: substitute Bs by operation of law if sufficiently close relationship
Class Gifts: Avoiding Intestacy by redividing gift amongst members of a preferred class
Class Gifts + Anti Lapse interact, 379
22
22
23
23
Non-Probate Transfers24
54 - Non-probate transfers: joint tenancies; PoD Ks; life insurance; trusts
24
Non-Probate Transfers: Trusts24

55 - Trusts: legal != equitable ownership; single greatest innovation of the CL
56 - Can a trust be revoked by operation of law? no; only on the trusts own terms!
24
24
Spousal Share & Omission: restricting tmentary freedom25

57
58
59
60
61
62
How can a spouse take?

25
Elective Share but only in sep. prop. JD; not in communal property JD
25
Elective Share Statutes reject illusory xfer and other tests: apply % to augmented/net est825
Is there a barrier to the spouse taking? incompetence; waiver/prenup
26
Omitted spouse from will? Even if spouse provided for in a trust? intestate share, ish
26
Spouse also gets 4x other things
26
Omitted Children?27
63 - Child born after will + omitted from will? assume unintentional
64 - @ UPC, omitted children get intestate share
27
27
Trusts: Background & Elements28

65
66
67
68
Flexible counterpoint to wills.

Intent to create the trust
Property Res confusing; not sure what to make of this material
Beneficiaries: who will enforce the terms of the trust? Cant be (1) vague; (2) impermissable
28
28
28
29
Trusts: Rights to Distributions30

69 - What kind of trust is it? Discretionary v. Mandatory?
70 - Can a creditor get at the Bs trust property/income? Discretionary v. Mandatory no, yes
71 - Is it a spendthrift trust? It is invulnerable to creditors!
30
30
30
Can we modify the trust?32

72
73
74
75
76
Modification then?
Modification now?
Trust Protector? offload modification to third party, pg. 651
Termination: What counts as a material purpose?
Remove the Trustee?
32
32
32
32
33
appointment?34
77 - Whats an appointment? Instantiation of humility (Im not sure who best B is. . .)
78 - Was the appointment exercised properly?
34
34
Trust Supervised properly by Tree?36

79
80
81
82
What are the remedies when a Tree breaches?

Duty of loyalty? Tee must act on Bs behalves, not on behalf of self
Duty of Prudence: changed with investment theory
Duty of impartiality: 725 what kind of investments do we make?
36
36
36
36
(1) purpose instead of IDable benef; (2) not subject to RAP : important area of law
What are valid charitable purposes? Need more than benevolence
Cy pres when courts modify charitable trusts: no RAP lets them become stale, outdated
The Barnes Foundation
What Cy Pres Exposes About TE
38
38
38
39
39
Charitable trusts38
83
84
85
86
87
2 | Brendan Rigbys Trusts and Estates Spring 2012 Serkin
1. The Right to Inherit and to Convey, Intro to Probate

1-10, 16-20, 24-49
INTRODUCTION
1 - Testamentary freedom is our lodestar. (but we dont obey orders to destroy property)
state creates, controls your right to posthumous property dominion
pros: avoid concentrations of inherited wealth; encourage industry during lifetime; fairness (you own it!); state
shouldnt maximize amount it returns to itself; encourages thrift (efficient transfer?); strengthens social bonds
(through choosing dis/inheritance); give creditors chance to claim assets? cons: rewards birth lottery; state may
maximize the value of wealth that returns to the state
Does a law force something to escheat? its a taking, not Cal

Hodel v. Irving (1987) 3. Fractional ownership by Native Americans held in trust by Bureau of Indian Affairs proves
too onerous. Congress attempts to cure by declaring if below certain ownership % or income threshold No
undivided fractional interests of any tract of trust or restricted lane . . . shall decedent [sic] by intestacy or devise but
shall escheat to that tribe. Court: Invalid taking. Right to pass property too important; theres a Cally protected
sphere around right to leave property. This regulation goes too far, citing PA Coal Co v. Mahon. Serkin: fractionated
parcel has no value if you cant pass it, hence, taking right to leave property too fundamental to valuation? 100%
tax taking
Beyond that, no right to take if your Jewish dad insists you marry a Jew to get his
money, he can do that
Shapira v. Union National Bank (1974) 28. Father leaves property to sons if within 7 years theyre married to Jewish
women w/ Jewish parents. If neither is, Israel gets it absolutely. Son challenges: this is (1) unCal and (2) invalid
restraint void for public policy. (1) Cal challenge: were not enforcing a burden on his right to marry; were enforcing
Ts restriction on sons inheritance. right to receive property by will is a creature of the law, and is not a
natural right or one guaranteed or protected by . . . the C. (2) public policy: court enforces if reasonable. (a) not
enough Jewish women! court: no; reasonable as a partial restraint upon marriage; court examines number of eligible
Jewish females in this county (b) this is like conditioning inheritance on divorce! no. overall: Ts intent, through to
Israel cl. shows depth of the Ts conviction . . . his purpose was not merely a negative one designed to punish his
son. court seems, P suggests, to hang its hat on that. on Ts intent. Serkin: Shelley v. Kramer inquiry: is court
enforcing promise that violates the C? No; Shelley was high water mark.
PROBATE
2 - Probing the Probate System
Whats the vocabulary?
NY: devise = bequeath = dispose; (traditionally, devise real property; bequeath personal property)
Whats the purpose of probate system?
evidence of transfer of title: provides Bs w/ dox needed to show ownership (Surrogates Court is document factory.)
protects creditors of the estate: akin to bankruptcy in that assets pooled and distributed
distributes property
Why avoid probate? Expense! executor, administrator fees; accounting, time, court
approval; notice to creditors
it can take years! if you have non-probate property (hubby and wife, only property is joint tenancy) might not
bother
Why choose probate? Give creditors a deadline; get court sign-off of something thats
contested
if creditors dont come forward w/i six months, claim dies but you cant avoid taxes!
3 - Only probate property goes through probate: wills cannot convey IV trusts!
How can we avoid probate? use none-probate transfers; 4x
none of these escape taxes, only the probate process: youre going to pay when you die, either at first or at the
end
(1) joint tenancies (cotenancy w/ right of survivorship); (2) life insurance (lobby worked hard to be without
probate process); (3) Ks/bank accounts with payable on death provisions; (4) trusts (the big one);
How does probate work? Executor manages.
in NY, personal representative: can be atty or just family member (save $!) ID, inventory, collect assets (get
arms around Ds property: open bank account, dump into it) manage assets during probate (difficult if
investments/businesses); keep assets at work! receive/pay creditors & taxes (and ID them!) clear title
(important for real property); distribute assets (ID and pay Bs) pay beneficiaries close probate
What rules apply to probate? Varies by JD, lots of i-dotting, t-crossing clerk can
1. The Right to Inherit and to Convey, Intro to Probate

1-10, 16-20, 24-49
almost always reject if wants to
What are the tax stakes? DO NOT SELL STOCK.
estate, not inheritance, tax: Ds estate taxed, not what Bs take net estate: after creditors are paid
traditionally much higher, 45-50% of all money over 300k; not it only applies to over $5 million (most arent
subject to it)
Dont let clients sell stocks before death. Capital gains = (sale price buy price), and taxed on that B should
take, buy price is FM value
new B owner of stock takes stepped up basis of current FM value of stock significantly less tax for capital
gains
2 | Brendan Rigbys Trusts and Estates Spring 2012 Serkin
2. Professional Responsibilities; Intestate succession

My first class
PROFESSIONAL RESPONSIBILITY
Professional Responsibility
Atty who writes homestead to wife in will, but in own notes writes house to wife
and land to son may be liable
Simpson v. Calivas (NH 1994) 58. P: I dont find this outcome surprising. Surrogates court ruled on will; this is
action against atty. Lawyers notes show house to wife in LE, land to son. W: homestead to wife. Fight is: does
hundreds of acres of land go to son or wife? Winner of this suit can sue atty for value of property. Traditionally, duty of
atty is only to client, not Bs w/ whom hes not in privity. Court employs third-party beneficiary status of K law. Not
deciding liability; reversing decision to dismiss negl. + BofK actions.
not the rule in NY. Recent case: Schneider v. Findermann court gave less privity. NY <3 attys.
Wrinkle: collateral estoppel: What is BenefSon going to prove to succeed? Ts intent was to bequeath property!
surrogates court determined intent of T was to leave to stepmom! difference: evidence
Surrogate cant look @ extrinsic evidence; cant consider attys notes b/c Direct declarations of a Ts
intent, however, are generally inadmissible in all probate proceedings. 61. surrogates inquiry is narrower,
so no collat. estop.
Notice: were not doing what T wanted as attys notes reflect, because probate only looks @ face of will
formalistic probate inquiry v. broad Tmentary desires inquiry
Be sure you dont make typos when you run your conflict check software. implead
to get order to seal
A v. B (NJ 1999) 64. Firm represents husband and wife in planning estates. Seeks to disclose to wife existence of
fathers illegitimate child. 3x: husband, wife, husbands illegit childs mother. She sues in paternity action, hires firm to
rep her thats repping wife and husband in paternity suit. Firm didnt catch conflict b/c of typo. Firm to hubby: if you
dont disclose to wife, we will (assets might go, through will we drafted before notice of conflict, to your illegit child).
Firm immediately withdraws from representing mother. Q: can they tell wife about kid? They want to, husband doesnt
want them to. Court: (1) not obligation to disclose physical harm, ongoing fraud; too attenuated; (2) permissive
disclosure doesnt apply. NO waiver of confidentiality, only of conflict.
What responsibilities are in conflict? Beneficiary of estate; conflict of obligation
duty to protect confidentiality of your client runs to the husband. information that atty learns subject to duty
of confidentiality
duty to mother of illegitimate child gone when she wasnt a client. duty to protect interests of wife, who is
client of firm
Whats best course of action for professional? is disclosing child proper?
point: could disclose, there is an effect; didnt reveal ID of them; counterpoint: husband screwed b/c law firm
screwed up
what of legitimate children beneficiaries?
noisy withdrawal weve discovered something but cant discover what it is youre adverse to one another
in ways you dont know possible, firm couldve done that, but hes not sure thats living up to highest goals
of firm in terms of providing good representation to clients
what could they do on front end to prevent problem from arising?
have a potentially awkward conversation w/ them separately.
Great lawyering: husbands atty impleads law firm in action as soon as paternity suit happens; gets an order
sealing
husband and wife did sign waiver of conflict, usually
but here the firm didnt get a waiver of confidentiality, that mightve helped them if thered been an explicit
waiver of confidentiality also
but it can be difficult to do; need may vary by context, but its not a terrible idea (potentially awkward); its
part of my standard practice to have a brief conversation with each of you individually
2. Intestate Succession
71-80; 87-97
INTESTACY: DID SOMEONE DIE WITHOUT A WILL?

What are intestacy rules? defaults if: (1) no will; (2) no valid will; (3) will doesnt dispose of all prop
Interests of person v. interests of state; tees up complex inquiries, pitfalls of planning how families should take
Goal: achieve what most people would want in most situations. protect state, protect needy beneficiaries; state
asserts control if you dont
Did a spouse survive?

@ UPC 2-102 what they take depends on who else survives
share of surviving spouse dependent on pre-marital children that decedent spouse has; whether living parents, no
children
no matter how old child is, parent dies w/o will passed to kids. idea: itll get to kids anyway, so give to
parents now
entire estate if: no descendent/parent of D survives D. 2-102(1)(A); OR
all Ds surviving descendants also descendants of surviving spouse AND
no other descendent of surviving spouse survives D (all descendants are descendants of the spouses) 2102(1)(B)
300k + .75(remaining estate) if: no descendent survives D but parent of D survives D 2-102(2)
(young person? no kids, but surviving parent)
D: if you have kids that arent mine you get less (dont give my $ to my stepkid!); if I have kids that arent yours
you get even less (you wont fund your stepkid!) (4); im not worried that youll steal $ from our shared spawn (1)
(B) [not always good assumption]
Wendy and Howard. 2 kids together, W dies, both Ws parents alive D survived by issue, spouse, parents
@ ETPL : D any children at all spouse gets 50k + .5E (aka one half) and gets get rest
@ UPC: surviving spouse gets everything; EPTL: 50k + .5E + rest to son
Problem 1, p. 77 Interesting. Howard and Wendy 2 kids; Wendy child from former husband. If W predeceases H H
takes under (4) = 150k; H predeceases W, 225k. Premium for having kids from prior marriage; assumption that W
will give additional $ to Former Child.
@ EPTL 4-1.1: spouse gets 50k+1/2 residue rest to issue by representation (a)(1)
EPTL 4-1.1 doesnt distinguish b/w different familial arrangements; 50k + .5(E); issue, rest
protects kids more if not good relationship w/parents parents; protects against future children by remarried
husband diverting $$
Same-sex spouse? Probably not going to take; check state law
as typically drafted, spouse means spouse marriage.
Living/ dead kids? Representation: (1) strict per stirpes; (2) modern PS; (3) per cap. @ each generation
Representation = if one of several kids dies before D, that childs descendants represent dead child and divide
his/her share
Strict per stirpes (by the stocks) treat each line equally (crossed out =
predeceased Snobi)
Smobi
Lucy
Prof. Serkin
Daughter Amolia 1/3
NOTE: Amolia, equally
near and dear, takes nine
times more!
Lee
Clara
1/9
Forrest,
holly
Jeff
Philip 1/9
Claire,
Emily,
Aiden
(1/3 * 1/9)
= 1/27
Anna,
Rebecca
Bingle 1/3
(no one below takes b/c Bingle,
living, has)
Dunca
Beck
Celia
Malcol
n
y
m
Carte
Finn,
Emily
r
Harriet
Tim (0;
excluded)
Modern Per Stirpes division only at nearest generation with living class member
Smobi
Lucy
Prof. Serkin
Clara
(1/7)
Daughter Amolia (1/7)
Forrest
, Holly
Lee
Jeff
(1/7)
Claire,
Emily,
Philip
(1/7)
Anna,
Rebecc
Duncan
No issue,
no $
Bingle
Becky
Celia
(1/7)
(1/7)
Carte
Finn,
r
Harrie
Tim
Malcol
m (1/7)
Emily
No issue, no $
71-80; 87-97
Aiden
Per capita @ each generation equally near, equally dear UPC, NY Approach;
invented by Serkins T&E Prof.
Steps: similarly situated? rebundle, redivide, @ next level down; Treat each member of generation same unless
their ancestor already taken. hurts people like him w/ one daughter, but helps people who wouldnt see as much
money b/c they have more kids
(1) initially divide @ level where 1+ descendants alive (as in modern per stirpes)
(2) take shares of deceased persons, drop down and divide equally among representatives @ next generation
REMEMBER: once your parent has taken, that line is satisfied once Bingle takes, supra, we dont include Becky
in next division!
Smobi
Lucy
Lee
Bingle (1/3)
Tim
Prof. Serkin
Clara
Jeff
Philip (2/3 *
Dunca Becky
Celia
Malcol
(2/3 * ) = 2/12
) = 2/12
n
m
Daughter
Forrest, holly
Claire
Anna,
Carte
Finn,
Emily
Amolia
(1/3 * )
Rebecca
r
Harriet
(1/3 * ) =
= 1/12,
1/12
Emily id.,
NOTE: Same
Aiden, id.
as Aiden!
Each dead
parent,
gparent.
UPC: per capita @ each generation, but take some off for surviving spouse. real
dollar difference.
Snobi has child w/ man from another marriage when she died; all kids dead.
Snobi
Lucy
Prof. Serkin
Clara
Daughter
Amolia
Forrest,
holly
Lee
Jeff
Philip
Dunca
n
Bingle
Becky
Celia
Tim
Husband (1/2)E +
225k
Child
Malcol
m
Emily
Claire,
Anna,
Carte
Finn,
Emily,
rebecc
r
Harriet
aiden
a
FIRST: Ask what spouse gets? Under 2-102 2-103 discounts that amount
SECOND dole out by representation via 2-103, pp. 73
@ Strict per stirpes: Amolia: what Lucy wouldve gotten 1/3 (Tim dead no kids) strict per stirpes
~129.167
@ modern per stirpes Amolia gets 1/7 53.36k
@ UPC: 27k 3/42nd (divide by 7 @ Serkins generation; pass 3/7 down to next/ divide by 6 @ Amolias
generation)
Default rule: generally per stirpes.
often, strict English
Serkins wife gets nothing spouses of descendants would need a will to take.
No spouses left & no children left? Ancestry and Collaterals, 92

What if decedent dies w/ no spouse and no descendants of parents? p. 74, 2-103(4).
2x systems:
(1) parentelic system property goes to person w/ closest ancestor (start from parents and work down)
(2) degree of relship system how many steps does it take to get from you to that person (#s on pg. 93)
UPC 2-103(4), p. 74 modified parentelic, limited to grandparents and descendants

of grandparents
Parentelic = intestate estate passes to grandparents and their descendants; if none, go up to g-gparents, etc.
UPC is modified paranetlic: limits you to grandparents and descendants of grandparents
no living relatives closer than descendants of gparents, stepchildiren will take (novel!), otherwise escheats to
state the State
@ EPTL 4-1.1 modified parentelic, limited to great-grandchildren of grandparents

71-80; 87-97
(1st cousins once removed)
Notice: (6): shall not include more remote than grandchildren of grandparents first cousins
no one farther away than first cousins will take by representation
but then drop down to (7)
If youre only survived by G-grandkids of grandparents (first cousins once removed) they take, but not by
representation
they take per capita. EPTL 1-2.11
each of whom is to take in his/her own right an equal portion of such property
this means predeceasing first cousins once removed w/ kids of own get nothing.
we distribute to living class members @ level of first cousin once removed per capita means no
representation!
War on the laughing heir; avoid 26,000 claimants and 23 years of litigation. Estate of Garret (Pa. 1953) 95.
HYPO: first cousin once removed and great-grandmother @ EPTL, g-grandma wont taken even though closer in
degree of relshp
3. Intestacy: Simultaneous Death, Children

80-86; 97-109; 115-132; EPTL 2-1.6
4 - Simultaneous Death: Did the person survive the decedent for long enough to take?
an accident of cars, teehee (more cars = more spouses travelling, dying, together)
w/o sufficient evidence of order, 80, each B predeceased the other neither takes
from the other
Janice v. Taraswwicz (1985) 80. Big scare: someone lacing Tylenol with cyanide. Unsolved mystery. Husband H and
wife W young couple on honeymoon. Phone call: brother died, unknown causes. Fly back, arrive exhausted, takes
Tylenol and dies. They die too (same Tylenol). H, pronounced dead first; he has life insurance, B is wife if she
survives him, if she doesnt, to mother (). Fight between parents: Ws dad will take through intestacy if she
outlived him; if W didnt outlive/survive H, his estate means Life Ins. goes to mother. Statute, Uniform Simultaneous
Death Act: presumption of simultaneous death absent contrary evidence: survivorship is a fact which must be
proved by a preponderance of the E by the party whose claim depends on survivorship. 84. Medical E shows she lived
a bit longer, court upholds finding of survivorship, so she takes his life insurance. No consideration of Hs intent.
Bottom line: each person treated as having outlived the other for purposes of disposing of estate
husbands property goes to his heirs; wifes to wifes heirs: treat each as outliving the other b/c thats the result youd
want neither inherits from the other
EPTL 2-1.6: no clear/convincing evidence to have survived > 120 hours

predeceased
so above, if T stayed alive 121 hours, she/her dad takes
Practice Tip: how to draft survivorship provisions
Time requirement for survival? 30? 60? 90 days? Quality requirement? (no life support?) No survival
requirement -- just take?
Is an adopted child a child?

The Easy Theory: total transplantation child is child for all purposes, old ties all
severed
2 strangers to child total transplantation from biological family into new. new parents are parents, children
children. severs all ties
Harder Adoption: One Size Fits Hall. An anachronism that modern statutes cast away
Does remarrying and adopting sever the parent-child relationship? one parent biological not total
transplantation
Hall v. Vallandingham (1988) 97. Earl Vallandingham dies, his widow remarries two years later to Jim, who adopts
the 5 kids. Earls brother dies intestate w/ no surviving kids/spouse: sole remaining heirs are Earls kids that Jim
adopted. Kids dont take total transplantation means ties severed, Earl not dad. Court: adoption a rebirth into new
relationship; no dual inheritance right b/c thatd be superior status. Legislature giveth, and the legislature taketh
away. Serkin: administrative simplicity at a cost of nuanced rules; maybe Jims care shouldnt matter? whose
interests?
Rest. 3d Property 2.5 Parent and Child Relationship, 100 focus on who is adopting
(1) youre child of your genetic parents, whether married or not UNLESS (2) adopted or (5) abandoned
(2) exceptions: you are not a parent-child if . . .
condition
affect
Cite
Adoption removed child from families
child is not a child of either gentic parent
2.5(2)(A)
of both genetic parents (total
transplant)
Adopted by relative of either genetic
Still child of both genetic parents and new parent; can have
2.5(2)(B)
parent, or by spouse /surviving
multiple parents. Note: this disagrees with Hall! this is giving
spouse of such relative
a benefit to the adopted child over the traditional child.
Stepparent adopts
i) adopted stephchild is:
2.5(2)(C)
ii) child of adoptive stepparent AND
iii) child of genetic parent who is married to
stepparent AND
iv) child of genetic parent for purposes of
inheritance through that parent BUT NOT
from/thru the child unidirectional. Different
outcame than Hall. Kids would take from Earl,
but Earl couldnt take from Kids. Kids die: Jim
takes, not Earl. bad for mccully kulkin.
[he didnt mention] Stepparent does
v) child is not stepparents child
2.5(3)
not adopt

80-86; 97-109; 115-132; EPTL 2-1.6
[he didnt mention] Foster child
[he didnt mention] Parent
abandoned, refused to acknowledge
vi) not child of foster parent(s)

vii) parent barred from inheriting from/through child
2.5(4)
2.5(5)
UPC 2-118, 119, pp. 101 different: (1) focus on qualitative relshp b/w parent-child.
(2) unidirectional inheritance!
no formal categories; UPC: youre child of a parent to the extent that you have a parent-child relationship;
qualitative description
in stepchild (b)(2) (Hall) AND adoption by relative of genetic parent (c) p-c exists for purpose of adoptee to take
through genetic parent
Instrument clearly intended not to include adoptees cant be defeated by adoption:

difficult to operationalize
Minary v. Citizens Fidelity Bank & Trust Co. (1967) 103. Instrument: LE to sons, remainder to my then
surviving heirs, according to the laws of descent and distribution then [note that theres a when] in force to Kentucky,
and, if no such heirs, then 2 First Christian Church. She has 3x son: J, T, Alfred. J dies no heirs. T has kids T Jr., Amelia.
Alfs Myra. Alf adopts Myra to bring her w/i distribution (make her an heir). Is Myra a then-surviving heir? Yes; law
of KY permits it, and she used language indicating she wanted law. But it is act of subterfuge which in effect thwarts
the intent of the ancestors whose property is being distributed and cheats the rightful heirs. Reverse because
TEST: adoption of an adult for the purpose of bringing that person under the provisions of a preexisting testamentary
instrument when he clearly was not intended to be so covered will not be upheld. Serkin: temporal language
contempl8d change in law. NOTE: Will: my surviving heirs not theirs different result. Serkin thinks dumb:
people adopt all the time for estate planning
Seems contrary to good sense. T refers to laws of intestacy in force @ time of Alfs death, which says adult person
. . . may be adopted . . . with the same legal effect. 104. is child for all purposes. 105. Courts assessment as
subterfugre seems hollow; concerned for other Bs?
Subterfuge: line not drawn@ adult. could apply to children, charities, etc. ask if theres pre-existing
tmentary doc
Practice Tip: use power of appointment, grant in fee simple, in order to avoid
adoption as after-the-fact grab @ est8
grant it in FS not LE; grant a power of appointment (LE to Alf, with power of apptment. . . ); talk to client! note: LE
might impoverish spouse
You cannot un-adopt a child.

Doris Duke, 107. Adopts adult yoga instructor, entitling her to HUGE amounts of money. Hard to know if theres
parent-child relationship + how courts should interrogate content of these relationships. Settled out of court for loads
of money. Beware of inability to unadopt.
Defensive Adoption: Adopt to Deprive of Standing
Only those who might take in intestacy can challenge if theres a child, no one takes in intestacy but that kid
adopt someone!
Adoption for same-sex partners: wont work in NY, but can potentially result in
invulnerable will
adoption can make will invulnerable b/c standing requires that youd take if will struck down; kid in intestacy takes
estate. will struck down, your child is only one with standing forecloses remote relatives from challenging will
NOT ALLOWED IN NY. In re Robert Paul (1984) 102. even though adoption is entirely a creature of statute, NY
courts have said: sexual relationship incompatible w/ parent-child relationship., moot b/c of same-sex marriage,
but still: NY hostile to adult adoption.
Posthumously conceived child is it issue for intestacy purposes?

When is child alive for intestacy purposes? Posthumous death meets posthumous
conception
child: alive from moment of conception so long as born w/i 10 months of someones death
Is posthumously conceived child issue? Balance factors to see if daddy wanted his
sperm to be used
Woodward v. Commissioner of Social Security (MA 2002) 118. Husband and wife arrange for his sperm to be
stored; he dies, they use it to impregnate her years after his death. Children enjoy inheritance rights of natural
children re: intestate succession laws? Yes; under limited circumstances, they enjoy intestacy right of issue under
MA intestacy statute. They are. (1) look into best interests of child; P: this is uninsightful. when would kid not want to
take?; (2) states interest in orderly administration of estate. what of heirs and creditors? P: court punts on this issue.
(3) reproductive choices of individuals: s burden to show: (a) biological father consented to use AND consented
specifically to posthumous use.
query: dad is dead, wy value his reproductive rights? why do we care about those where SS is involved? its not

80-86; 97-109; 115-132; EPTL 2-1.6
his $!
In re Martin B (2008) 127. Grantors son dies, freezes sperm and babies pop up via his wife years later. Instead of
social security, this is trust: fixed pile of money, not government money. only issue is: can posthumously conceived
child be included in future distributions from trust? Yes. Serkins Query: This isnt hard. But what if posthumously
conceived child tried to take from distribution that occurred before they occurred? That case doesnt exist. court is not
required to confront most difficult issue. not sure In re Martin B adds that much
Query: would grandparent want posthumously conceived child to be included in these distributions?
A thought on posthumous conception
Would grandparent, Martin B, want posthumously conceived grandchild to be included in trust distributions?
What do we think the decedents purpose is in leaving money? sure its blood relationship, but is that the only one
we care about? or actual connection?
BUT: posthumous birth happens all the time, not always a big deal, no oppty to know mom and dad, but that
doesnt cut off inheritance rights
Statutes generally require written consent to mix sperm into baby cocktail.
California. 125n3, decedent mustve consented in signed, dated writing w/i 4 mos; w/i 4 months must serve executor
of possibility, dont have to have conceived w/i four months thats presumably to enhance orderly admin; child
must be in utero w/i 2 years of decedents death; 2 years not long w/ grieving time ; child is not a clone of D
UPC. Id. consented to posthumous in signed writing, or otherwise clear and convincing evidence; says 3 years
instead of 2
4. Intestacy Advancements, Minors, Bars to Succession

133-40; 145-157; EPTL 2-1.5
Advancements was there a lifetime gift that counts against Tmentary distribution?
formerly: lifetime xfer to B presumptively an advancement against share theyd take in intestacy
now: strong presumption that lifetime gifts are not advancement. EXCEPT if contemporaneous writing specifies
intent for advancement
BUT if savvy enough to have writing, probably not intestate! more likely: invalid will, contemporaneous
writing insufficient
How advancements work/How do you compute?
hotchpot = (probate estate + any lifetime advancements)
D dies with estate of $600k; 1(100k inter vivos); 2(300k during life); 3, 4, nothing
hotchpot = ( 600k + 100k + 300k = 1 mill ) divide by 4 250k to each
lo, problem: one kid already got 250K! Advancements wont let you claw this back.
because the one thing we know: parent intended kid 2 to get 300k
instead, we write this kid out hes paid off; so we do it again:
3 kids, 700k estate: 233k each kid 1 gets 133k, each other gets 233k lo, its 700k
What if the value of an advancement changes over time?

Parents buy apartment on Smith St for 100k in 1990, say they intend advancement, now that apartment is worth 1
million?
Value it at 1 million when they die? or Value is at 100k (recipient 1 million better off than siblings?)
EPTL 2.1-5(d)(2) value @ which appraised for estate tax purposes; @ time of death of decedent
UPC p. 135 valued @ time heir came into possession different!
Bars to Succession: Slayers and Disclaimers

Did the B disclaim? pretend they predeceased T
Why disclaim?
(1) tax skip a generation of estate tax Father dies rich with old son who doesnt need money and has two
sons; Son disclaims
(2) avoiding creditors: creditors: i have tort creditors and want to avoid them getting $, disclaim
predeceased, kids take by representation wont work against federal govt as creditor.
You cannot disclaim in order to affect the denominator of a representation-taking scenario
Ex. p. 154: O 2 kids, A and B; B dies survived by child C. O, widow, dies intestate. A has four kids.
A no disclaim takes half; but if A disclaims, does that mean that under equally near, equally dear, we
divide by 5, not 2? No!
UPC 2-1106(b)(3)(C) . . . disclaimed interest passes only to the descendants of the disclaimant who survive the
time of distribution. . .
So A can only disclaim of the estate cant divert money from other potential beneficiaries by representation
through disclaiming.
Slayer statute? constructive trust (criminal verdict not going to serve for equity and
constructive trust)
In re State of Mahoney, 145. Probate court gave parents of killer the money, against statutes. This court forwards to
chancery corut to dispense with the necessity of proof of the murder in a rpoceedings in equity to charge him as a
constructive trustee. 148. This court Slayer gets title in constructive trust (his heirs will take but he wont) D died
intestate, wife convicted of manslaughter, is serving 12-15 years. Court: choices are: (1) pass regularly slayer
keeps; (2) equity approach shouldnt benefit from crime, slayer barred from receiving in intestacy, but: flies in face
of statute, adds addtl penalty to criminal statute; (3) mix of both: pass title, but in constructive trust. Constructive
trust only available in court of general JD; so option 3 puts the case in a court w/ better competences to hold a murder
trial than surrogate court. Query: What is slayer statute trying to accomplish? does it reach down to acts of:
negligence? recklessness? just acts of homicide?
Trial court discretion under slayer statute to allow slayer to take in case of felonious but intentional killing. In re
Estate of Blodgett, 2006, p. 150
5. Will Challenges: Mental States: Capacity, Insane Delusion, Undue Influence; Fraud
159-199; 207-210
WILL CHALLENGES: HOW TO STRIKE DOWN A WILL!

Capacity? Did they understand 4x. Poweful attack invalidates entire will
Whats the test? Objectively capable of understanding 4x.
(1) nature, extent of property; (2) natural objects of his/her bounty; (who would be natural, appropriate, expected
beneficiaries); (3) capable of understanding disposition of property; (4) capable of relating all these together.
What policies and assumptions undergird consideration of capacity?
bar is low: lower than capacity for K, for gift; higher than capacity to marry
Background rule of Tmentary freedom: Ds presumptively allowed to control disposition of property @ death
protect people from selves: Will 1 while sane, Will 2 while insane. Protect Bs who are natural and desired
recipients?
Burden-shifting regime: rebuttable presumption of capacity, then burden to to show

capacity by preponderance
minority rule: contestant introduces evidence of incapacity, then respondent has to provide capacity by
preponderance
In re Estate of Washburn (NH 1997) 159. Lacked testamentary intent. Principle beneficiary = respondent niece. 3
wills: 86, 92.1, 92.2. (1) 1986: $1000 to few different people, miscellaneous dispositions; rest to sisters, or
alternatively, to niece (respondent); (2) 1992 March: writes second will: $1000 to few different, $5000 to caretaker
(new disposition), rest to niece; (3) 1992 April $5000 to niece, rest to caretaker (house!). 3 week time, complete
reversal of disposition. Niece challenges this 1992#2 on grounds of Tmentary capacity. Court rejected probate of
this will. Probates 1992#1. EVIDENCE: Alzheimers, regressive disease, diagnosed in Apr 1993 (year after these wills)
DIRECT EVIDENCE she in fact lacked intent @ time: she would forget things, confused sometimes; dramatic change
w/i 3 weeks. (P: I forget stuff!) CHANGE IN DISPOSITION shows inability to understand 1-4 persuasive enough to
not know what she had; couldnt recognize her niece (petitioners sister) and asked for bill from sisters funeral to be
sent from her even though shed paid in person. Query: should it matter if you cant recognize family? what if they
never showed up? what if change was because of change of heart? also: No capacity in Apr, but had C. in march? orly?
Irrational fear of toilets + Alzheimers + reasonable disposition = no capacity

challenge
Majority rule: contestant bears the burden

Wilson v. Lane (2005) 161. Jury concludes T lacked capacity. Trial court granted JNOV, reverses jurys verdict: no
evidence on which reasonable jury could find testator lacked capacity. Serkin: is there really no evidence?!
This E is things less directly connected to will: petn. for guardianship saying that she was senile, incapable of
managing her affairs (roughly contemporaneous, but then theres the argument that this petition was just so she could
get caretaker); irrational fear of flushing toilets, turning on sinks fear of flooding so profound that she wouldnt let
water run in her house: court: odd, but not evidence; she called fire department to report nonexistent fire. Court:
caveators challenged Greers capacity by showing that she was eccentric, aged, and peculiar in the last years of her
life. 162. expert admitted that he had never examined Greer, and that his testimony was based solely on cursory
review of some of Greers medical files.; equivocal, saying only it appears she was in some form of early to middle
stages of a dementia of the Alzheimers type. Serkin: Dr. didnt connect this to drafting ability pick better
witness. seems strong evidence at least profoundly confused. But, court: not enough to show she lacked capacity.
Serkin: Natural disposition: doctrine doing less work than courts overall judgment about appropriateness of will
16/17 Bs were blood rellatives, 17th was caretaker.)
Practice Tip: if someone lacks capacity do not draft.
Often: hired to draft wills for the old, infirm, suffering from effects of old age.
Ensure: no existing guardianship; dont videotape; do get medical opinion; do describe why youre changing the
disposition
Insane delusion: erroneous belief not amenable to factual refutation strike resulting dispositions
erroneous belief carried despite facts not amenable to correction; irrational. 169. legal, not medical: Delusion that
effects will disposition.
effect: invalidates any disposition resulting from the delusion, up to whole will (but need not be)
Practice Tips: Develop factual record.
Alternative dispositions unlinked to potential delusions; also, develop a narrative
Temper your fervor come testamentary time: Feminism to a neurotic extreme.

In re Strittmater (1947) 169. Leaves her estate to National Womens Party. Probate set aside. Woman lives w/ parent
forever developed extreme views re: men. the proofs demonstrated incontroverably her morbid aversion to mean
and feminism to a neurotic extreme. Dislike of men is irrational, insane delusion. So instead of fem-charity, her
dad takes. The odd: strength of her convictions hurts her! Her only relatives are some distant cousins.
Compare Shapiro, only to sons who marry Jews, fine because extreme intent. Here extreme intent hurts her!
159-199; 207-210
Thematic Qs
reason for belief? What if Strittmaters dad molested her? causation: insanity caused disposition that would not
otherwise have been made? (what if you give to DAUGHTER because you think Will Smith can defend her from
aliens?)
If the insane delusions didnt cause the disposition, those dispositions stand!
Breeden v. Stone (2000) 171. Breeden long-line of wealth. Hit and run commences2-day bender. Then D shoots
himself and his dog in his own home. Makes holographic will: I want everything I have to go to Syndey Stone. His
cocaine dealer. 4-day cocaine binge. Capacity + Insane Delusion challenge. Court: (1) capacity existed handwriting
legible, he describes his property in a list. (2) no insane delusions: put cornflakes out to alert self; throws out VCRs b/c
thinks someone is listening; thinks friend is unibomber; thinks hes covered in bugs; thinks friend was FBI informant
(he was!) although the defendant was suffering from insane delusions at the time he executed his will, [his] insane
delusions did not affect or influence the disposition of property made in the will. 177. D not close to will
contestants; had made no provision for Breeden Sr. or Connell.
Undue Influence: confidential relationship + suspicious circumstances
difficult to prove, so we rely on burden shifting + suspicious circumstances (Rest, pp. 185) burden shifting b/c
confidant should explain
Underlying Qs
Breadth? limit to relships of confidence; dont want everyone claiming it; Distinguishing from just regular old
influence that creates real, rsnble, appropriate, GF changes in will
Rest 8.3, pp. 181 Circumstantial evidence can prove UI where 4x: (1) susceptible; (2)
oppty; (3) disposition; (4) result
(b) A donative transfer is procured by undue influence if the wrongdoer extends such influence over the donor that it
overcame the donors free will and caused the donor to make a donative transfer that the donor would not other
have made . . . . Cmt. E
Cmt. E e says presumption of undue influence if no direct E, circumstantial E where: (1) donor susceptible to
undue influence weakened state; (2) alleged influencer had opportunity to exert undue influence; (3)
wrongdoer is the bad roger, not good; had the disposition, wanted to exercise undue influence, (4) result
appears to be UI: in fact caused it
Rest: UI Presumed where: (1) confidential relationships and (2) suspicious

circumstances
Cmt G., 184. a relationship based on special trust and confidence. Such a relationship might exist between a hired
caregiver and an ill or feeble donor or between an adult child and an ill or feeble parent.
Cmt H., 185: suspicious circumstances, nonexhaustive factors that create presumption of undue influence:
(1) the extent to which the donor was in a weakened condition, physically, mentally, or both, and therefore
susceptible to undue influence; (2) the extent to which the alleged wrongdoer participated in the preparation or
procurement of the will or will substitute; (3) whether the donor received independent advice from an attorney or from
other competent and disinterested advisors in preparing the will or will substitute; (4) whether the will or will substitute
was prepared in secrecy or in haste; (5) whether the donor's attitude toward others had changed by reason of his or
her relationship with the alleged wrongdoer; (6) whether there is a decided discrepancy between a new and previous
wills or will substitutes of the donor; (7) whether there was a continuity of purpose running through former wills or will
substitutes indicating a settled intent in the disposition of his or her property; and (8) whether the disposition of the
property is such that a reasonable person would regard it as unnatural, unjust, or unfair, for example, whether the
disposition abruptly and without apparent reason disinherited a faithful and deserving family member.
Two warring narratives: (1) genuine helper + appropriate disposition; (2) cat-freezing
evildoer who just wants $
Estate of Lakatosh (1994) 182n2. Rose, befriended neighbor Roger he caretakes; buys food. relationship of trust
develops. she gives him keys to house. Easy case because when Rose dies, Roger has left trash everywhere. Dead
cats in her freezer and bathtub. Lawyer who drafted Roses will was Rogers 2d coz, left all but $1k to Roger. Execd
power of atty and he converted $128k to improper uses.
One attorneys intermediary drafting will not exorcise the specter of UI if the court
doesnt like the outcome.
In re Moses (1969) 186. Finding undue influence. Older woman, 3 husbands. Court imposes Strittmater judgments
re: relshp. Successful businesswoman has sexual relationship w/ atty Holland. Undoubtedly a confidential relationship,
and sexual too. Older, drunken woman, 15 year younger attorney he leaves $$; she hopes hed marry her. There
was strong evidence that this aging woman, seriously ill, disfigured by surgery, and hopelessly addicted to alcoholic
excesses, was completely bemused by the constant and amorous attentions of Holland . . . . [and] entertained the
pathetic hope that he might marry her. 187. Court reverses TC determination that b/c indep. counsel drafted will,
overcame presumption (Holland didnt know about drafting of will, unrelated lawyer did it.) Serkin: reverse genders,
different outcome. Practice Tip: try to establish factual record that there is/not undue influence; but fact that
draftsman didnt ask here doesnt seem wrong.
Wholesome family of magnates challenges their sons bequest to his same-sex

partner, courts agree: undue influence.
159-199; 207-210
In re kaufmanns Will (NY 1965) 191. Child of Founder of Kay Jewelers tries to leave all property to long-time samesex partner. His family is furious. They object, disapprove of relationship. Court finds that partner, who was an atty, but
never served as his, was in confidential relationship overcame will of T, invalidated disposition; product of
dominance of the beneficiary
No UI where lawyer son drafts will, is beneficiary, and executor if the UI facts are
otherwise sparse.
Lipper v. Weslow (1963) 193. D(Sophia block) had prior husband + son with him(Julian Weslow). JW has kids: G1, G2,
G3. Julian has predeceased Sophia. JWs widow is alive. SB remarries (Mr. Lipper) + has kids: Frank, Irene. Will, that
atty Frank wrote, leaves it all to Frank and Irene. This is fight b/w grandkids(1-3 via JWs widow) and Frank+Irene.
Court: lacks vital facts of undue influence the substitution of a plan of testamentary disposition by another as
the will of the testatrix. 197. Reverses factual determination of trial court, which found undue influence, by saying
there is no probative evidence (only way to reverse factual finding). language a little iffy; seems almost like Frank
wrote the whole . Julians wife has standing as guardian for grandkids. Included no contest clause.
Checklist: Applying UI analysis to Lipper v. Weslow
(1) ask who is allaged to have execd UI; (2) confidential relationship? (3) suspicisiou sicrucmstances?
Note in Lipper: Court seems to think no UI even if, perhaps, UI himself wrote the narrative! This should give us
pause.
will + court tell one story, but imagine Hes a scumbag! out to take this money. How do we distinguish b/w
these 2 worlds?
one in which FL is dutiful son; one in which FL is scoundrel out to expropriate money from nephews
Ultimately, its a battle of evidence; challenger was just using circumstantial evidence. And Serkin things
evidence of UI is thin here.
but theres not the no evidence necessary to overturn the finding of fact!
Practice Tip: Does Atty have to refuse to draft will hes interest in? No! but be
careful
Safest: get someone else to draft. But Serkin wrote his wifes will. Key is: are you altering natural disposition? If so
get indep. advice.
Suggestions: have person write out thoughts (problem: can look bad, give contestants hook to hang on).
No contest clause tell people theyll lose out if they challenge will, and give it teeth
Lipper v. Weslow. Had no contest clause. 194 8: if you contest, not eligible to take. No contest cl. dies w/ will.
Ineffective here because the grandkids were already disinherited! Bottom line: leave non-trivial thing to those who
might challenge; force them to decide if we win we get more, if we lose we get nothing
What policy considerations control our thinking of no-contest clauses?
are we increasing the likelihood or probating wills secured through undue influence, duress? should we advise
client to put into will?
trade-off: administrative efficiency, effectuating testamentary intent v. possibility of probating wills that shouldnt
be probated
@ UPC & Rest. probable cause
UPC allows no-contest clauses UNLESS contestant can show probable cause that will was invalid, secured through
fraud, undue influence, etc.
if show PC and loses eventually no contest wont apply
@ NY what counts as a contest is cabined
EPTL: 3-3.5 (sup. 5) no contest cl. is valid, enforceable, but then says certain things cant deprive you of
benefit
forgery, infant/guardian no contest; contesting jurisdiction; (PC + will is forgery or revoked by later will)
Fraud? Did caretakers deceive the T?
sheds light on undue influence; UI isnt about lying re: the work thats fraud! but practically speaking, bring all
together.
in the execution
misrepresents what theyre handing T to sign; its not what they want to sign. will unprobatable hard to prove
in the inducement
more interesting: will secured through fraudulent misrepresentation about fax in the world
Puckett v. Krida (1994) 209. . Caretakers tell T her relatives want her in home & are wasting her $. aim to and do
affect disposition. Court invalidates provisions secured through fraud. family wasnt wasting $; caretakers made
false statement to the deceased and concealed facts from her. listened in on phone conversations. caretakers
confidential relship.
159-199; 207-210
niece wants aunt in nursing home but its the best thing for the aunt. nurses lie, say that they eat old people there
potentially fraud, but tricky
Duress: the most straightforward signed under duress == invalid

Constructive trust is the flexible and odd remedy it can go to cousins who say
theyd take under a will never execd!
Latham v. Father Divine (1949) 210. wrongful death action seeks Cive Tr. What this says about remedy is
interesting, not about duress. Wealthy woman leaves 350k to Father Divine + reld entities; seems to have second
thoughts, expresses desire, supposedly, to change disposition and give $ to first cousins. Court: Father Divine
prevented execution of new will, allegedly by killing her. Thats duress in the extreme. Little doubt that this should
affect the validity of the will; would have changed her will had she not been killed by beneficiary. claim is: had she not
been killed, shed have execd a different will, theyd have been Bs. Court doesnt who is B of Cive trust remands
for factual det. court OK w/imposing Cive trust for proposed Bs of will that was never executed. weird. a
Cive trust is merely the formula through which the conscience of equity finds expression. 213. Aberrant: courts
dont excuse minor technical deficiencies, but here Bs of unexed will make claim through Cive trust. what?!
Tortious interference w/ expectancy: collateral attack

Did someone prevent you from ever hearing of the probate? Collateral attack! like
Cive trust; parallel remedy
Schilling v. Herrera (2007) 215. Ds brother suing caretaker. D fell into poor health as she aged, brother arranged
Ms. Herrerra to caretake. Eventually D moved into Hs garage. Seems like undue influence, but not raised b/c Ds
brother didnt challenge probate proceeding: Herrera probated and only told Ds brother after finalized (only possible
because of FL expedited probate process if theres no challenge). Normally, required to exhaust probate remedies
before you can bring collateral action; oppty to bring UI probate would be res judcata. Exception for tortious
interference w/ expectancy; can collaterally attack prob8 judgment if claim says: some addl fraud, wrongdoing,
prevented will challenger from even appearing in the prob8 process.
So you must allege 2x wrongdoing: (1) underliyng UI; (2) wrongdoing that prevents contestant from bringing it up
in the prbate process
Derivate duty: Decedent-Defendant derivative (Tort Esoterica)
Tortious Interference Celebrity: Anna Nicole Smith and the Probate Exception to
Federal JD, see 220.
6. Will Formalities
221-242
FORMALITIES: STRIKE DOWN WILL IF NONCOMPLIANT

Why engage formalities that disengage Ts intent?
why in this area of the law do we care so much about form? UPC trends away from this, examines substance,
but its not the law anywhere
PURPOSES OF WILL FORMALITIES 225: (1) ritual function: impressed w/ importance of what youre doing;
less wont impress; (2) evidentiary function: party who is most important to construing the document is dead
create evidence; (3) protective against imposition, undue influences; (4) channeling function: form of will
makes it obvious its a will
Witnesses: guarding against ye olde switcharoo

Did the witnesses witness each other?
In re Groffman (1969) 228. Will Act, similar to ours. T has 2 friends over to serve as witnesses. Basic requirements:
(1) executed by testator; (2) witnessed by 2x competent witnesses. He invites friends to tea. No Room in what we
think is his quaint British cottage for them all to sign. Then brings each witness 1 at a time into next door dining room
table where theres room to sign. Each does. But will act in question requires presence of 2+ witnesses present at the
same time. Court: by removing each witness into next room, they werent present @ same time as one another when
witnessed, therefore will invalid.
Man in a wheelchair must have witnesses witness one another too, and his signing!
Stevens v. Casdorph (1998) 229. VA will act: . . . two competent witnesses, present at the same time. . . man
wheeled into bank in wheelchair, signs will in front of bank employee. instead of making poor wheelchaired man go
with, employee takes will around and has it signed. Problem: T didnt sign in the presence of acknowledge his
signature to the witnesses. No doubt that this reflects will of T; was intended to be valid, just an execution problem.
Being in bank @ same time insufficient for this court, not substantial compliance.
Theres an exception available that the court holds doesnt apply here: T acknowledges in front of W1. Then W1
signs, witnesses. Then T+W1 go to W2, say together these are our signatures and W2 can witness even though
wasnt present @ time of signing. Serkin: apply exc. here!
Two presence tests: conscious presence & line of sight
conscious presence ppl must be conscious of one another; LoS test they must be able to see each other; an
obstruction past the nose
NY EPTL 3-2.1, more permissive time requirement
(A)(2) signature shall be affixed in presence of each affixing witness, or acknowledged by T no simultaneous
presence requirement
But still quite formal: (4) there shall be 2 attesting witnesses w/i a thirty day period, affix their residence @ end of
will, Ts signature must be affixed or acknowledged in their presence
So: witnesses not present @ same time as each other || w/i 30 days of each other || present when T witnesses
invalid
@ UPC: 2-502 (227) reasonable time after witnessing T sign or acknowledge
also offers option of signature before notary instead of witnesses!
Acknowledging = in person
parent says they signed will, mail to witness dont do it; thye must acknowledge it in person. Skype? unclear.
Heartland = LoS + present
Signatures at the end: subscription, 227

EPTL 3-2.1(a): material after signature not effective unless exposes preceding
matter as incomplete
(a) material following the signature wont invalidate execution UNLESS will so incomplete without the material
following the sign that it cant be given effect; (b) no effect given to material following the signature OR (preceding
the signature if added after execution)
NY: witness must attest w/i 30 days 3-2.1(a)(4)

NY: if witness is B, there must be 2+ disinterested witnesses or disposition to B
purges, minus intestate amount
Estate of Morea (1996 NY) 239. 3x witnesses: Ds friend George, who gets bequest. Ds son Kevin, who got less than
intestate share in will, and non-B witness. Tortured reading of statute. Court: Because Kevin is actually adversely
affected by the admission of the will to probate because his intestate share would be greater than his bequest, he
does not receive the beneficial disposition that 3-3.2(a) aims to purge. Kevin recd disposition, but it was not
beneficial to him to the extent that he would have received a larger inheritance if he testified against the validity of
the will and the instrument were denied probate. so Gorge is fine b/c there are 2x witnesses who receive no
beneficial disposition.
6. Will Formalities
221-242
UPC no requirement of disinterested witnesses
The requirement of disinterested witnesseas has not succeeded in preventing fraud and undue influence; and in
most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested
witnesses. UPC 2-505, cmt., pp. 242
Practice Tip: find disinterested witnesses
Attestation Clauses & Self-proving affidavits

Example on pp. 244 attestation useful if witness died
Self-proving affidavit: declare that all requirements of execution have been complied
with
if witnessed die, are hard to locate, can still probate will
CURING DEFECTIVE EXECUTION?

Ad Hoc Exceptions: should we excuse obvious execution defects? early, opposite, results
The cases go both ways. . .
In re Pavlinkos Estate (1959) 246. Husband and Wife Ts draft reciprocal wills, sign one anothers wills by mistake
(identical wills). Vasil didnt sign own will, so no will! They didnt really speak English, or read or write it. Once a
Court starts to ignore or alter or rewrite or make exceptions to clear, plain and unmistakable provisions of the Wills Act
in order to accomplish equity and justice in that particular case, the Wills Act will become a meaningless, although well
intentioned, scrap of paper, and the door will be opened wide to countless fraudulent claims which the act successfully
bars. Theyd have to changed Vasil to Hellen and my husband to my wife! Oy!
Strategic decision: what should lawyer try to probate? Vasils will or the document that Vasil signed?
Keeping subscription requirement in mind, could atty staple wifes will (w/ hubbys signature) together?
But in New York, a different outcome! rigid w/ formalities

In re Snide (NY 1981) 250. Same thing. Surrogate reformed it, substituting name Harvey wherever rose appeared.
dispositive provisions in both wills, except for the names, were identical. 251. Under such facts it would indeed be
ironic if not perverse to state that because what has occurred is so obvious, and what was intended so clear, we
must act to nullify rather than sustain this testamentary scheme. 251. All formalities adhered to, sign w/ witnesses:
There is absolutely no danger of fraud, and the refusal to read these wills together would serve merely to
unnecessarily expand formalism, without any corresponding benefit.
Other approach here would be partial intestacy; this was contest by guardian ad litem of a grandchild whod take
in intestacy, where other grandkids had said they were fine with probating it.
Substantial Compliance with formalities? (narrower than harmless error; focus on Will Act)
if the defective execution nonetheless fulfills the purposes of those formalities. 253 Court forgives
defective execution
discuss purposes of formalities: ritual/cautionary, evidentiary, protective, channeling, previous page
one-step affidavit cl = attestation + affidavit in one cl, only need one signature; two-step separates, need 2
signatures
NY doesnt like substantial compliance fairly rigid with formalities
In re Will of Ranney (1991) 253. Two witnesses sign two-step self-proving affidavit, thinking that theyre signing
witness block. Court: doc (1) reflects Ts actual Tmentary intent; (2) formality requirements are substantially met.
Even though Self-proving affidavits and attestation clauses, although substantially similar in content, serve different
functions. and court doesnt describe them! 255. Introduces: Substantial compliance is a functional rule designed to
cure the inequity caused by the harsh and relentless formalism of the law of wills. 256. Dont stop there, ask: does
the noncomplying doc express the Ds Tmentary intent, and does its form sufficiently approximate Wills Act formality
to enable the court to conclude that it serves the purposes of the Wills Act? Court applies this exception. Serkin:
court here doesnt really engage w/ how this fits formalities discuss formalities @ 15
Harmless Error/Dispensing Power? (broader; focus on Tmentary intent, novel) Not in NY!
UPC 2-503 Harmless Error, 258. [even if doesnt comply with formalities well pretend it does] if the proponent of
the document or writing establishes by clear and convincing evidence that the D intended the doc or writing to
constitute (i) the Ds will, (ii) a partial or complete revocation of the will . . .
NY doesnt like -> this is not the law in NY.
if there is clear and voncinving E that the D intented doc to be his will forgive noncompliance with formalities,
253
Harmless error is much broader than substantial compliance and basically bypasses
formalities en route to T intent.
In re Estate of Hall (MT 2002) 259. Harmless error statute mirrors UPC 2-503. Couple has Original Will. Atty drafts
Joint Will for couple, but they want to make some changes/review. They also want the draft to stand as valid will to be
changed later. Couple executes this will w/o witnesses, atty notarizes it. Betty tears up Original Will. Jim dies, Betty
applies to probate Joint Will. Substantial compliance? No; theres no witness at all! evidence Betty says she believed
it was a valid will, just had scribbles and stuff so they didnt give it out like they would once Ross fixed it up. Daughter
wants Original Will. Serkin: this exceptions seems to replace the rule; new approach to will validity no inquiry into
Will Act formalities, only Ts intent . basically a presumption of validity even if formalities not met! if theres clear and
convincing E that the D intended the doc or writing to constitute the will!
7. Holographs
268-85
HOLOGRAPHS: DID SOMEONE WRITE SOMETHING TESTAMENTARY?

NY does not allow holographic wills.
@EPTL 3-2.2 oral wills for soldiers.
armed forces engages in combat, and only valid for a year after T returns. NY doesnt authorize holographic will
Was it testamentary? Did it contemplate death? No witnesses needed, handwriting serves
West Coast states tend to like holographic wills, holdover from Frontier Days
In contemplation of death? if enny thing hapens is it testamentary in

character? did it make posthumous gift?
Kimmels Estate (1924) 269. Mails letter, suddenly dies. Handwritten letter father sends saying what to do w/ pork
and pickle. interesting: probating a letter, reflects what hed want to occur w/ stuff when died. It evidenced Tmentart
intent; written in contemplation of an event, described disposition of property. true, a formal will would not be so
executed; but this is not a formal will. if enny thing hapens informal character . . . becomes a matter of no
moment when it appears thereby that the decedents purpose was to make a posthumous gift. 270
Signature here is valid: just says Father and its okay!
What must be handwritten? 3x statutory approaches, 279
traditional rule: strict compliance absolutely every word on the document be in Ts own handwriting
any word that wasnt would invalidate whole thing as holograph
Estate of Thorn (1920) 279n1: court strikes down holograph b/c name of his home, Cragthorn, stamped twice
within text.
material provisions statute: the signature and the material provisions in Ts own handwriting
most liberal: material portions b in Ts own handwriting and well permit extrinsic evidence incorps preprinted
by reference
Printed portions of a will can be incorpd into a holographic will if theres Tmentary
intent most liberal
Estate of Gonsalez (2004 ME) 277. handwritten words may be read in the context of the preprinted words; has
blank will form that they witnesses, he writes out draft, says hell copy over from draft to witnessed one but he
never xfers. We. . . hold that the printed portions of a will form can be incorporated into a holographic will
where the trial court finds a testamentary intent, considering all the evidence of the case. The handwritten material implicitly adopted and incorporated the printed text on the form and converted the form into a more
clear will. 277. Will not signed by witnesses; one person signed first form. Others signed blank form. but if you
type some we wont give effect to them b/c not in own handwriting. Dramatic consequences: T is free to fill out will
form and sign w/o witnesses and be probatable?
Harmless error as an out
partially printed, partially handwritten can be saved by harmless error too! Note case he didnt mention, Estate of
Wiltfong 277.
Letter to lover and the importance of narrative; tell a good story and the court will
drop formality a lot
In re Estate of Kuralt (2000) 280. Kuralt was a TV fixture, on the road talking to people. Turns out he has a whole
separate life and family. 1989: holographic will devises property in MT to Shannon, mistress. 1994: new will
doesnt mention property in MT. 2 Wills inconsistent. Court focuses on what T wanted bedrock principle of
honoring the intent of the T. When ill, he writes letter to Shannon saying hell have the lawyer visit the hospital
to be sure you inherit the rest of the place in MT. if it comes to that. wife can argue this indicates only future intent.
P: profound assault on formality requirements; if direction to someone to draft a will is indistinguishable from
document we probate here, dispensed w/ probate requirements, looking only @ Tmentary intent. Good lawyering by
Shannons lawyers, telling the story about why Charles wanted her to have property. Critic: Dont probate: only future
intent; T doesnt think this is a will, he thinks this is a letter. does the letter even have testamentary intent?.
Highlights tension. foisting our expectation onto him; potential reality that hes appeasing mistress and doesnt
desire to leave property (unlikely cuz he already deeded).
8. Revocation
286-307
REVOCATION
Best practices: revoke former will w/ formalities AND dispose of residuary
Revoking a codicil? restore original dispositions, no need for re-execution
majority rule: you can revoke a codicil w/o revoking the prior will probate that will w/o the codicil
revocation of will revokes all codicils to that will.
revocation of codicil restores original dispositions without requiring re-execution of will
You can revoke yourself into intestacy
Dependent Relative Revocation revocations made on mistaken perceptions may be invalid

apply when a later will that expressly revoked an earlier will contains one or more dispositive provisions that fail
under applicable law. The revocation of the earlier will is presumptively ineffective to the extent necessary to give
effect to the dispositive provision in the earlier will that the failed dispositive provision in the later will replaced. Rest
3d Prop 4.3 cmt. e., 297.
usually the mistaken perception is the effect/validity of a subsequent will; akin to mistaken Tmentary intent
CRITICISM: DRR doesnt give you effect you desired, just says revocation ineffective: revoking b/c think wife
takes; we dont give to wife
result depends on underlying law, see Alburn, 20
Problem 2 @ 298. Will Cl. 5: I give $1000 to Charles Blake. W properly executed. Cross out $1,000, write $500 and
initial and date.
choices are 0 and 1000. T wanted $500 which is closer to his intent? Author: if it was $501 apply DRR
Probate original in entirety, or not oddly inflexible

LaCroix v. Senecal (1953) 295. Will 1: 3/16/51: Residue: to Nelson; Senecal. Will 2: 4/10/51 Codicil:
residuary: Nelson aka Marcisso Maloth (same person; she discovers shes had his name wrong); Aurea Senecal.
Problem w/ Codicil: interested witness, Aureas husband, so purging statute strikes Aueas dispositoin. But:
[W]here the intention to revoke is conditional and where the condition is not fulfilled, the revocation is
not effective. Here, condition is that Aurea would take! Easy case because only change codicil makes is spelling of
name (adding the Nelson AKA). Court: When a T repeats the same dispositive plan in a new will, revocation of the old
one by the new is deemed inseparably related to and dependent upon the legal effectiveness of the new. 297. Easy
case for that reason. Gift to Aurea stands because no revocation occurred.
Not probating the codicil isnt a big deal here. Elsewhere, maybe not the case!
Substantial compliance can save some DRR cases.
Criticism: DRR inquiry is which of these two options comes closer perverse if we know what she wanted, why
dont we just do that?
In New York, DRR not really alive court will use dispensing power
court will use dispensing power to fix infirmities/lack of formalities
by physical act + Tmentary intent (revocation of Ts copy revokes will, see 288)
D possessed (a copy of) will before death + not found amongst possessions =
rebuttable presumption of revocation
Harrison v. Bird (1993) 287. she has will, instructs atty to destroy it. Atty tears up into 4 pieces, sends her the pieces.
He sends follow-up letter: you are without a will. Friend has duplicate original (not good practice. @ original will
execution, atty presented her w/ 2 identical copies, she executed both of them; both of them were witnessed why?
enhanced security if one lost or destroyed). Friend seeks to probate duplicate original. 16 pieces, but will not revoked
b/c not destroyed in her presence as statute requires. Contestant must meet burden, rebut presumption of destruction
from T possession before death + not found among personal effects after death Counterintuitive: though torn,
valid; invalid only b/c couldnt find parts and presumed she destroyed them.
Presumption of revocation has strange effects
youre next of kin of rich old aunt who dies, and you know rich old aunt left all money ot charity, youre the first
person in that house, you find that will that says I leaving all $ to charity you can find, destroy that will:
troubling opportunity for real fraud and malfeasance
yet courts by and large say: cant find it in the house doesnt rebut presumption of revocatory act
4 pieces found in trash can. Probate the will?
putting in trash sufficient physical act to revoke we wont probate? discarding is enough, student thinks
Writing null and void isnt a revocatory act if your atty does it; rule of overlapping
text? obligatory obliteration
Thompson v. Royall (1934) 290. She has will + codicil. To revoke, they write on back null and void on cover page.
T, Kroll, signs it. Not revocation by subseq. writing: no will formalities, atty wrote it. If writing null and void w/
signature amounts to cancellation no will act formalities in instances of revocation by subsequent t. writing. Court:
8. Revocation
286-307
If written words are used for the purpose [of canceling], they must be so placed as to physically affect the written
portion of the will not merely on blank parts of the paper on which the will is written. 292 Fails to physically
obliterate, mutilate, deface, or cancel any written parts of the will. Serkin: seems wrong; her intent to cancel. Query:
where does revn by physical act and by writing begin?
write cancelled is this revn by subseq. tmentary writing? what if burned? stomp, I revoke you w/ footprints
nah
UPC 2-507 Revocation by Writing or by Act (286) permits partial revocation

2-507 286. (2) by performing a revocatory act on the will, if the T performed the act with the intent and for the
purpose of revoking the will or part or if another individual performed the act in the Ts conscious presence and by the
Ts direction
includes: burning, tearing, canceling, obliterating, or destroying the will or any part of it.
its revocatory even if doesnt touch the words of the will
Conscious presence not line of sight: in the conscious presence of someone else; there could be obstruction; in
same general space but not enough to be on telephone; skype videoconferencing? dunno yet.
whats canceling ? 4 pieces in env. labeled revoked will probate; garbage w/ coffee on it? probably probate
EPTL doesnt recognize partial revocation by physical act interlineation ineffective

or dont probate at all
will, properly execd, says Car to Adam, Ring to Ben, All Else to Charlie, then we take pen, and strike Car to Adam.
(1) Car to Adam; (2) no prob8
@EPTL 3-4.1 cant revoke part of the will by physical act
3-4.1(a)(1) will or any part = (a) another will; (b) writing executed w/ will formalities
3-4.1(a)(2) will in whole can be revoked by physical act
EPTL might not be satisfactory if we think that there is no evd o fraud, etc.
Ask: what do we think T wanted? if disposition is significant enough, dont probate
What results from obliterated portions? If we cant read it extrinsic evidence!

Cant figure out; no effect
Will: residue of estate to four named relatives. After death, will found in desk. One of four names lined out with pencil;
no evidence T marked out..
EPTL and UPC would be at odds here due to one allowing partial revocation, one not
by Operation of law, p. 305
policy Q: should some dispositions to spouses family remain in force?
divorce @ UPC 2-804, p. 306 destroys dispositions/powers of apptment to spouse

+ relatives
if, in my will, i leave $ to wife and brother, then I divorce, then I die before new will wife and wifes brother getting
nothing
also, stepkids getting nothing
divorce @ EPTL 5-1.4 revokes dispositions to former spouse but not relatives of
former spouse
EPTL: only revokes dispositions to former spouse, not to relatives of former spouse
by subsequent testamentary document

DRR in the subsequent tmentary document context
Estate of Alburn (1963) 300. King Lear; old woman travels from family to family, continuously kicked out, writes
them out of her will, then moves ot the next. Then writes the other one out, moves on. P: something very sad about
this. Milwaukee Will: (living with Viola, original left with atty). some debt to Viola; gives her some jewelry, bulk of
dispositions are: to Viola, to Olga, Doris, Lulu. none of next of kin in intestacy. Then, Kankakee will: (no
longer living @ Violas) stock to Olga; nothing to Viola; Lulu gets 4/10 of estate; Doris 5/10; Robert 1/10. Moves to
Wisconsin w/ another bother, she asks him to destroy Milwaukee will which he does by putting the pieces that
shed ripped it into in a sack and let[ting] the pieces fly in the wind as testatrix had directed him to do. 301. 3x
different people coming to court: (1) next of kin @ intestate court; (2) Viola: probate Milwaukee will!; (3) Robert:
Kankakee plz!. Held: she destroyed the Kankakee will under the mistaken belief that the Milwaukee will
would control the disposition of her estate. Furthermore there is no evidence which controverts this finding.
Court hangs hook on odd result: shed not want to die intestate, have 9/10 of estate go to people not named in either
will. Kankakee will probated (though thrown into wind, atty had copy). @ time, no revival in this JD (need to
re-exec w/ formalities) so when Kankakee destroyed, shes intestate. Uses Milwaukee will as base line of intent.
CRITIC the doctrine: we give effect to Kankakee b/c it comes closer to Milwaukee than intestacy so why not just
exec Milwaukee will!
Which will better matches her intent? @ Milwaukee: none are next of kin in intestacy; Doris and Lulu get 5/10; @
Kankakee: Doris and Lulu will get 9/10 of the estate in the Kankakee will some overlap b/w these 2; @ intestacy:
8. Revocation
286-307
Doris and Lul (9/10 of estate in Kankakee!) get nothing
by inconsistency dispose of entire estate? UPC 2-507, p 286.
8. Revival
300-307
REVIVAL?
Was it reexecuted? majority rule.
Majority + EPTL rule
Revival requires reexecution. what most states do is the opposite {??}

NY is typical in this regard
EPTL 3-4.6: Revocation or alteration of later will not to revive prior will or any provisions thereof
only way to revive prior will is: (1) execute codicil which incorps by refrence prior will or its provisions; (2) writing
declaring revival of prior will execd w/ formalities; (3) republication of prior will, see 3-2.1
@ UPC, revocation might revive. presumption-shifting; complex; 2-509 pp. 304

All about presumption shifting emphasis is on the wills themselves
(a) W1, W2 wholly revokes W1, W3 revokes W2 by physical W1 presumed revoked unless it is evident
from the circumstances of the revocation . . . that the T intended the previous will to take effect as executed.
subsequent willy wholly revokes, revival not presumed
(b) W1, W2 partly revokes W1, W3 revokes W2 by act revoked part of W1 revived unless evident T didnt
intend subseq. will partialy revokes and is then revoked, presumption is that will revived.
(c) W1, W2 revokes W1 in whole or in part, W3 revokes W2 W1 or revoked part revived to extent it
appears from terms of later will that T intended W1 to control. previous will or revoked part is revived inasmuch
as appears from terms of later will that T intended previous will to take effect
2-509 + 2-503 (harmless error) = DRR unnecessary? discuss.
9. Integration, Incorporation, Republication by Codicil

Adding to the Four Corners. 307-325
EXTRINSIC EVIDENCE: CAN WE LOOK OUTSIDE THE WILL?

Overview: Increasing T flexibility post-execution
traditionally, if you wanted to modify you had to re-execute. UPC inroad, liste to dispose of items of tangible
personal property, 316
Integration: a rule of collating
all papers present @ time of execution, intended ot be party of will, are integrated into will; not an issue if use a
stapler.
funny note: Keener v. Archibald (Indy 1989) Indiana says doctrine of integration not the law there. so all wills 1
page?
NY: expansive integration doctrine but not incorp by reference; achieve some results of incorp by reference
through integration doctrine.
Republication by Codicil: that which does not revoke, presumptively republishes
Codicil = testamentary instrument that amends a prior will but does not replace it.
changes effective execution date from original date to date of codicil; can be used to recover from insane
delusion, undue influence,
cannot be used to cure a document that was never execd w/ formalities; cannot fix an execution defect. But see
Johnson.
Necessary to overcome revocation by operation of law.
W leaves property to wife, then gets divorced, @ moment of divorce, wills provisions disposing to wife revoked @
law; but then execd codicil
strange, holographic codicil: (so hes not in NY) it will reexecute that will! not a good example b/c only a
presumption
Its just a presumption; court would say you were divorced, clearly dont want ex-wife to get everything.
date of execution can be really important for various mechanisms some of which well see in future
Oddball case: will never execd, court interps signature block as codicil law is that
codicil applies only to prior valid
Johnson v. Johnson (1954) 317 @ 318. Appeal from denial of probate for doc purporting to be will. 50k to church, 10k
safe securities to niece, 10k to another brother. then handwritten part that says to my brother James I give ten dollars
only. Problem: document not witnessed properly (hilarious b/C Tor is T&E atty). Court: bottom handwritten part is
valid holographic codicil, so incorps the typed part. SERKIN this can't be probated under doctrine of republication by
codicil, integration also won't help; extremely limber court might do it via incorp by reference despite tension w/
holographic will reqs; or under application of dispensing power/harmless error: show: (1) clear + convincing evidence
that he intended to be his will (ts clear; he says this will); outside limits of what wed probate, but colorable
argument
Incorp by reference, or republication by codicil? court says republication by codicil; Serkin unclear:
typed will, improper execution, interp signature block as separate document that repubs the whole will?
what of witness req?!
Cannot republish unexecuted will through codicil. Also: hard to incorporate by reference when it doesnt refer to it;
(b) in NY, non-starter: no holographic wills and no incorp by ref. Argue: this will == a reference.
Most liberal holographic will statute requires more than one screw you bequest to be handwritten and all others
typed; need sep. dox.
Incorporation by reference doesnt exist in NY

@UPC 2-510 pp. 310 will can incorporate a writing that is not itself properly
executed
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.
Typical case: i leave to x, y, z: and other, left in sealed letter attached to this will good for hiding dispositions to
mistress
can only incorp dox existing @ time of will. canbe hard to prove (exception below)
Solution: execute codicil after you add something; republish by codicil!
@ UPC: 2-513 (316) modifications disposing of tangible personal property

permitted
only tangible personal property other than money; adding little things here and there, but tangible personal
property includes Stratovarius
317: theres no limit on the value: you can convey your stratovarious violin through the notebook! theres no
handwriting requirement?
Where codicil mentions a memorandum, court lets in notebook even though no E as to

9. Integration, Incorporation, Republication by Codicil

Adding to the Four Corners. 307-325
when T wrote it
Clarke v. Greenhalge (1991) 310. Unscrupulous administrator. Formal will, memorandum, and notebook. Will execd
in 1977: substantive dispositions, also says and I want to dispose of property consistent w/ a memorandum. Leaves
painting of farm in living room to Ginny Clark. Executor, greenhalge, refused to deliver it (though he gave himself all
other property in notebook) because he was not bound to give effect to eh expressions stated in notebook. notebook
dated 1979, but there are codicils in 1980. republication by codicil bring in document that couldnt be incorpd by
refrence @ time of original will. Court says a memorandum doesnt mean only the paper so titled, but includes
notebooks. held: notebook incorpd by reference. Note: court seems highly displeased w/ executor himself who
fell short of the standard imposed by common social normal, not to mention the standard of conduct attending his
fiduciary responsibility as executor, particularly with respect to his selective distribution of Helen Nesmiths assets.
Evidence of when entry giving painting away to neighbor is not present. Court: T intended by the language used in
Art. Fifth of her will to retain the right to alter and amend the bequests of tangible personal property in her will, without
having to amend formally the will. 313. this wouldnt work normally, but UPC permits it. Looking to notebook for
guidance is one thing, but here they bind him to it. here, bdining administrator inasmuch as doc incorpd by
reference
Acts of Independent Significance

the heartland: money to employees, knowing employees will change we dont limit
to employees @ time
Will or T can refer to acts that have significance independent from Tmentary dispositions
car to son, $1k to employees buys new more valuable car and fires 2 employees and hires 4 gifts stand;
wanted new car, needed emply
Need LIMIT b/c if writing someones names in that black book was act of indep. significance too flexible
from heartland to hinterlands: contents of safe deposit box to friend, 324

I leave contents of safe deposit box to Tristian.
If purpose was to create flexibility in disposition not okay.
If purpose is desire to keep most valuable things safe items are in box for safekeeping, not for adjusting
disposition to Tristian
you might take evidence on this; whats the purpose of this safety deposit box?
if your independent reason, safety, is true well allow post-execution changes to contents of box to be given
effect
I leave the contents of the bottom right drawer to Tristian
Then it depends on how you use that bottom right drawer. If you use as holding place for gifts to Tristian, no good.
But if in fact Im a meticulous hyper-organized person and the bottom right drawer is where I keep certain kinds of
things that are valuable (insurance policies)
Well lock in the property that was in desk drawer @ time will execd
Jewelry box: indep. significance?
organization or jewelry box, display?
10 Mistakes & Ambiguities

335-51
MODIFY THE WILL TO GET @ WHAT T WANTED? MISTAKE, REFORMATION

Mistake, Reformation: when doctrine obstructs Donors Intent
Doctrine unsatisfying, reaches a point where law asks us to make distinctions that are bankrupt; lots of play in the
joints, murky application
Traditionally: 2x: (1) no extrinsic evidence, (2) no reformation will not correct,
reform, modify, change
(1) cant disturb plain meaning of words by extrinsic evidence that other meaning intended
(2) The only means for ascertaining the intent of the T are the words written and acts done by him MA S.C. 1922,
336.
CRITIC: UI, capacity, duress, fraud look @ circumstances surrounding wills execution to see if it captures T intnt;
why not in innocent mistake?
Now: if ambiguity admit extrinsic evidence for latent ambiguity
where a will contains no ambiguity of any kind, either latent or patent, and can be carried into effect without the
aid of EX ev., ex ev not admissible to show intent of T or give language of will meaning different from that which
law attributes it
Where will contains latent ambiguity: theres possibility of admitting extrinsic evidence to clarify ambiguity
Patent v. Latent Ambiguities
patent if reading document, you know ambiguity exists cannot admit extrinsic evidence disposition void,
unenforceable
W: 1 of my 2 houses to Tristian patent ambiguity; which house? it doesnt say, and we know it doesnt say,
on face of will (maybe we could interp as saying were giving him the choice of which to take; but W says 2
houses, 1 to T, not specifying which)
latent not obvious on face of will ambiguity only apparent when you apply will to world admit extrinsic
evidence to resolve ambiguity
House to Tristian, but it turns out I have 2 houses generally, either (1) same descry. fits person/thing; (2) no
person fully fits, 1+ partly
CRITIC: a little bit baffling and doctrine is unclear, so why make distinction in first place?; where we all see
ambiguity, cant admit. Rule doesnt limit kind of evidence we admit to evidence about changes in world. Maybe
rule overbroad?
Rest. disregards latent v. patent distinction permits evidence for both
Rest 3d. 11.2 cmt. d (2003) pp. 342 liberalizes: Once an ambiguity, patent or latent, is established, direct as
well as circumstantial evidence of the donors intention may be considered in resolving the ambiguity in
accordance with the Ds intention. 342
to my heirs at law isnt ambiguous even when some E shows T wanted it to go to 25

cousins
Mahoney v. Grainger (1933) 336. Residue to heirs at law living at the time of my decease, Aunt is heir at law.
When atty asked her who she wanted prop to go to, she said Ive got about twenty-five first cousins, let them share it
equally. 336. Aunt is closer relative, see table @ 93. Even though it says heirs plural, that does not prevent one
individual from taking the entire gift. The fact that [the will] was not in conformity to the instructions given to the
draftsman who prepared it or that he made a mistake does not authorize a court to reform or alter it or remould it by
amendments. Aunt takes. It is only where tmentary language is not clear in its application to facts that evidence
may be introduced as to the circumstances under which the T used that language in order to throw light upon its
meaning. Serkin: argue heirs ambiguous
Idiotic results: man gives bequest to corporation he knows nothing about, 338.
Estate of Smith (1990) 338n2. Bequest to Perry Manor, Inc., Pinckneyville, Illinois. That place owned/opd by
Nevada Corp (Perry Manor, Inc.) @ time of will. Before T dies, Nevada Corp sells to Lifecare center of Pinckneyville,
Inc., that continues to operate nursing home and call it Perry manor. Court: gift not ambiguous goes to corp he has
no idea about, connection to. if you could look to extrinsic, you couldve said which does he mean, and youd
quickly conclude its the one he knows about!
Food for thought: devises to Harvard known as MIT can fail b/c institution doesnt
exist
property to his lover, Danny, turns out hes had three different lovers named Dannny (Dannything going) latent,
admit
Gift to Mr./Mrs Wendall Hess @ Barbara circle; they move and remarry (no more Mrs. Wendall Hess) latent, admit
10k to Harvard also known as MIT. (341 n.) seems patent, we know Harvard isnt MIT but only b/c of knowledge
of world! patent. no admit
permitted @ New UPC/Rest where clear + convincing evidence wills now just a presumption?
10 Mistakes & Ambiguities

335-51
Rest 12.1: evd o (mistake + intent) reform. 352
court can reform any donative document, including a will, to conform the text to the donors intention if it is
established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or
inducement, affected specific terms of the document; and (2) what the donors intention was. 352. P:
[a mistake, whatever the source P] and [evidence of intent]
Rest. also permits reform for tax purposes! 12.2
UPC 2-805: evd o (intent + mistake) reform, 351
Court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the
transferors intention if it is proved by clear and convincing evidence that the transferors intent and the
terms of the governing instrument were affected by a mistake of fact or law, whether in expression or
inducement.
These are far cry from traditional doctrine; have evidence, will reform
Are wills now just a presumption? DO wills provide Tor any security? Are all wills now vulnerable to following
attack: No, he meant X!
Critic: what about what T meant by will? MA rejected reformation outside of tax areas decline to follow Rest. pp.
356
Mere erroneous description does not vitiate to evade rule, quote latin need
sufficient IDfyig info
Arnheiter v. Arnheiter (1956) 343. Sell my undivided one-half interest . . . No. 304 Harrison Avenue, Harrison, new
Jersey but she didnt own that; she owned 317 Harrison. Court quotes latin: Mere erroneous description does
not vitiate. Court is willing to go down this road. Effectively strips house number from disposition. Works because
theres enough info left in the disposition to ascertain the gift. Court admits extrinsic to show it was a house at
317 Harrison Ave. Easy case because identity of property still somewhat clear: (1) she had interest in only one
property on Harrison Ave, Harrison, NJ; (2) her interest in it was undivided one-half interest; (3) she didnt own 304.
Serkin: What if house @ Hamilton Ave, Hamilton NJ? What if 2 houses near the address she said?
Details of identification . . . are highly susceptible to mistake. and so court reforms

w/o admitting extrinsic
Estate of Gibbs, 344, his favorite. County court properly disregarded the middle initial and street address;
disposition to Robert J Krause instead of Robert W Krause, and it gives his address, and it turns out that RJK, whose
name + address in will is a random cab driver whos never met T. Court: The terms of the bequest exactly fit
appellant [Robert J. Krause] and no one else. There is no ambiguity. However, reforms b/c details of IDcation,
particularly such matters as middle initials, street addresses, and the like, which are highly susceptible to mistake,
particularly in metropolitan areas, should not be accorded such sanctity as to frustrate an otherwise clearly
demonstrable intent. Court considers extrinsic evidence in cases of identification. Serkin: courts will look to extrinsic
whether/not they acknowledge it. this makes it not look ridiculous when that lady corrected Narcissa before
scriveners error exception; court questions no reformation rule

Erickson v. Erickson (1998) 345. Man makes will on Thurs, married on Sat. Will tries to leave all to (future) wife, but
will revoked by operation of law when he marries, unless, statute, will expressly contemplated marriage. Court, this
didnt contemplate marriage. But trial court improperly excluded evidence of a mistake by the scrivener that,
if believed, would permit a finding that the will provided for the contingency of marriage. Remand (look only at will,
but admit evidence of scriveners error). All takes place w/i universe of a statute that says provision for contingency of
marriage enough to rebut revocation by law upon marriage. Spouse contesting b/c intestate share is and this will
devised all. HELD: Evd of a scriveners mistake shold be admissible where offered to establsish that a written bequest
should no be admitted to prob8 because its execution was the product of a mistake of the scrivener and, therefore, did
not embody the disposition intended by the T. 350. Serkin: what are the limits of this? lets say he left 100k to Tristian
but he meant 1 million; What is the principled limit? 3rd party involved? What if T is just wrong about something?
Same policy in different areas of mistake (stupid person)?
What we lose when we follow Ts intent: the case of the evil T

Fleming v. Morrison (1904) 356. T executes will only to get lady to sleep with him, tells lawyer he doesnt want it to
be his will, woman sleeps with him, he dies. We dont feel too sorry. Lawyer: he didnt actually mean that to be his
will! A fake will, made for a purpose fatal to the proponents case. turn from formalism to Ts intent can
serve injustice and inappropriate outcomes. Comply w/ formalities she wins; if we dont she loses this court
says no Tmentary intent, she loses. Ignoring formalities can result in deception.
10. Changes in Property After Execution of Will

Ademption, Abatement, Satisfaction. 380-392
PROPERTY IN WILL CHANGES AFTER EXECUTION

5 - Ademption: when specific devises once existed but no longer do result varies @ CL v.
EPTL/UPC
T devises Blackacre to B. Then sells Blackacre, buys Whiteacre. Doesnt change will. Blackacrew gift adeemed.
But: involuntarily disposed of doesnt adeem B entitled to some of share price. Includes: insurance proceeds;
govt condemnation
first inroad: car brother, but then dies in car crash and car totaled. courts: insurance proceeds brother
breadth of disposition matters; car to X opens up to AoIS; 1993 Honda changed to BMW will adeem
Types of dispositions: Specific, General, Demonstrative
specific can ademe property than can be specifically identified: my egg-shakers;

general cannot ademe $. thats all the means; money general doesnt adeem can abate if
insufficient funds
demonstrative give value equiv IDd by reference to value and identity ex: I leave $10,000 worth of GM
Stock to Qbert
2 theories: strict & intent
strict: property no longer in estate inquiry is over ask only: does property exist in estate
Intent: if you can show it comports with Ts intent, B nonetheless gets replacement/cash value
Exception: change in form but not substance a new car
leave 1995 Honda Civic to Tristian, but then I trade in for 1997 Toyota Camry + die? Court: intended as
replacement, mere change in form?
Courts will require some level of testamentary intent, control over sale of property in
order to rule it has adeemed
In re Estate of Anton (2007) 381. Marys Will: interest in duplex to G, to R, and remainder to R and N. M marries
Herbert. M 2 kids from prior marriage: R and N. H: daughter from former marriage: Gretchen. G deeds property to H, M.
H dead, M gets into car accident. N has power of atty for M. Durable power of atty; survives Ms incapacity. N has PoA
to act on M (her moms) behalf. N never talks to M in any detail about sale of this property b/c nurses say itll
exacerbate her condition to talk about money. Like 19th century novels: dont go in the rain or youll die. Only
remaining asset, N sells duplex to fund care. Held: disposition does not ademe. N gets screwed Q: whether
ademption occurs when specifically devised property is sold by an attorney-in-fact. ademption occurs where T
had knowledge of a transaction involving a specific devise, realizes the effect of the transaction on his or
her estate plan, and has an opportunity to revise the will. 383. focus of analysis is on the T and whether
the T has made a deliberate decision not to revise the will, and not on the nature of the agency causing
the involuntary act. An expression of intent in the indefinite future to sell assets for support is not sufficient to
cause ademption under our modified intention theory where the T is not aware that the specific action has taken
place. N sells duplex, uses $30k of it to pay for Ms care, then M dies, $100k left from sale price of duplex. REMEDY:
devisee (G) is entitled only to the proceeds which have not been expended on the support of the T. == 52k.
doesnt ademe b/c of focus on intent. N looks good; took house of market when G said dont sell even though he had
no property interest, only expectancy. Under strict identity theory this would ademe. No duplex exists! Concern: N,
acting on Ms behalf, has interest to sell duplex so itll ademe, and M has no oppty to prevent!
How do we value for purposes of ademption? (1) asset @ time of sale; (2) share of
whats left o sale? See 387 4 UPC
Valuation/remedy is where this case is complex. How should we value these things? If no ademption, how much
does G get?
House sells for 130k; do we give G 130k/2 or the (130k expenses)/2 here, we only had the second option, no $
in estate
EPTL + UPC embrace intent theory, casts off identity theory adeems unless Bs show
inconsistent w/ plan o T
UPC 2-606, pp. 387 burden on B to show, see pp. 380
(a)(1): you get balance of purchase price;
(a)(6) if none of the above, a pecuniary devise equal to the value as of its date of disposition, but only to the
extent its established that ademption would be inconsistent w/ Ts manifested plan of distribution OR @
time of will, T didnt intend that devise ademe
(b) specifically devised property + durable power of atty + incapacitated individual general pecuniary devise for
that net amount
things less likely to ademe. CRITIC: changed the meaning of a bequest of my diamond ring to my diamond
ring or its equivalent value
Abatement, or: when the pie is too small to pay debts and devises
like bankruptcy. pecking order: (1st) creditors (with specific law on which first etc.); (2d) beneficiaries
take from residuary beneficiaries take from general dispositions (gifts of cash) then sell off assets that are
10. Changes in Property After Execution of Will

Ademption, Abatement, Satisfaction. 380-392
specifically devised
Tip for executors: dont sell off specifically devised assets w/o getting court approval if you sell some and not all,
steel for lawsuit
CRITIC: residuary often gives to those we care most for, but abatement takes from it first? Robbing loving wife to
pay creditors!
solution: I leave 2 mill to wife, to the extent that anything is left over, 100k to Brendan, and anything else to
wife.
Satisfaction: Advancements Applied to Wills. Lifetime gift can satisfy disposition against estate
Painting to daughter. Then during her life I give it to her and never change will
@ ademption: no problem; gift of painting to daughter will ademe she has it already; @ UPC JD: must ensure
that the gift actually ademes investigate intent
If its $? more complicated w/ $: i eave 50k to each, 10k to one of them during life
b/c intent difficult to ascertain: majority rule: contemporaneous writing req., just like advancements if you
intend for a lifetime gift to be in satisfaction of will disposition, must be in writing (Rest, UPC, 391
11. Beneficiarys Death; Class Gifts

358-79; EPTL 3-3.3, 3.4
DID THE B DIE BEFORE THE T?

Predeceasing, eligible beneficiaries cannot take UNLESS (1) antilapse; (2) class gift
Specific devise fails residuary Residuary fails intestacy Intestacy fails escheat to the state
No Residue of a Residuary! But not @ EPTL

Pretermitted Airedale: Residuary devise fails? Passes through intestacy
Estate of Russel (1968) 359. Holographic will: All I own to Chester Quinn & Roxy Russell. $10 gold piece and
diamonds to Georgia Nan Russel (niece, , only heir at law). Turns out Roxy is a dog. Cant leave $ to a dog. Heirs
take, even though thats not what the lady wanted. Roxy Russell. Astonishing. Result: estate goes to heir at law,
niece. No residue o residuary. T preferred dog to neice, pp 361 n.14. Also, dog pretermitted D.
There are doggy trusts. Leona Helmsely left 4.5 million to her dog, Trouble.
Highlights idiocy of no residuary rule; wouldnt we rather have it go to residuary Bs instead of intestacy?!
No residue of a residuary rule if a residuary B cant take, it goes through intestacy

(not to other resid. B)
Roxys share is residuary; it goes to intestacy, not Chester

if you have 2+ residuary beneficiaries and one cannot take, that persons share doesnt go to other residuary
beneficiaries. instead, it passes through intestacy.
No ambiguity cant look @ extrinsic evidence that shes a dog when we try to write her a check, we discover
that she cannot take
But We cant take no extrinsic evidence rule that seriously. court would look @ dog; were going to know Roxy is
a dog
Court says this is not ambiguous
Class gifts: there is no rule against residue of residuaries

I leave property to my 8 cousins. One predeceases. the rest will split his part
EPTL 3-3.4 eliminates no residue of residuary rule (Chester would take!)

3-3.4. Consequences of partly ineffective testamentary dispositions of property to two or more
residuary beneficiaries.
Whenever a testamentary disposition of property to two or more residuary beneficiaries is ineffective in part, as of the
date of the testator's death, and the provisions of 3-3.3 do not apply to such ineffective part of the residuary
disposition nor has an alternative disposition thereof been made in the will, such ineffective part shall pass to and
vest in the remaining residuary beneficiary or, if there are two or more remaining residuary beneficiaries, in such
beneficiaries, ratably, in the proportions that their respective interests in the residuary estate bear to the aggregate of
the interests of all remaining beneficiaries in such residuary estate.
pass to and vest in remaining residuary beneficiary
Antilapse Statutes: substitute Bs by operation of law if sufficiently close relationship

B in close enough relationship to T, Bs issue will step in instead of lapsing gift
(1) only applies to enumerated beneficiaries; (2) only applies to enumerated Bs if they have issue; (3) if not
lapse again
Did T opt out of antilapse? 367
if you dont want Bs issue to take as substitute Bs, you dont have to use anti-lapse statute but what counts as
opting out? how explicit?
sometimes we dont trust that by requiring B to be alive, T understood she was disinheriting Bs line
Mere words of survivorship do not defeat presumption of antilapse CONCERN: attys

insert this kind of boilerplate
Ruotolo v. Tietjen (2006) 367. 1/2 residuary to Hazel, if she survives me. Hazel, is Ts stepdaughter. CT antilapse
includes stepdaughter. Anti-lapse statute applies unless T provides for the contingency of the B predeceasing. When
Hazel dies 17 days earlier, is if she surfvives me language of Will providing for a contingency? P: does this language
mean anything? lawyers insert it! P: court suggesting shouldnt take language too seriously b/c the lawyers just add it;
legalese, not reasoned, thoughtful Ts intent. P: lawyers always opting out. Point is, H takes here, because CT statute
covers her. Mere words of survivorship do not defeat antilapse statutes. 372.
How defeat antilapse? Alternative dispositions! if she survives me, to B1, if she does not, to B2 notwithstanding
antilapse statute
@ UPC 2-605: gparents, lineal descendants of grandparents, get antilapse, 365
@ UPC 2-605, pg. 365: only beneficiaries who are grandparents or lineal descendants of gparents
gparents, aunts, uncles, first cousin, leave to first cousin who predeceases the child of first cousin will take share
left to first cousin
@ EPTL 3-3.3: issue, brothers, sisters of D get antilapse and no one else
only to issue or brothers or sisters of T (T leaving property to own child, childs children will take) no 1st cousins
11. Beneficiarys Death; Class Gifts

358-79; EPTL 3-3.3, 3.4
Spouses are excluded in 2x from antilapse: (1) antilapse doesnt apply to spouses; (2)
Bs spouses dont take
Gifts to spouses are not saved through antilapse; Beneficiaries spouses wont take as substitute benefs under
antilapse.
Why?If spouses kids are your kids, theyll take anyway if not, were not going to have stepkids take to save the
gift
How do you opt out? @ Rest. no statutory presumptions shall apply

Sometimes, courts read and as or to avoid escheating to state
Jackson v. Shultz(1959) 374. T leaves property to my wife and her heirs; to my wife is words of purchase; and
her heirs are words of limitation, it just gives FSA to wife. Ts only surviving heirs are wifes kids (his stepkids). Court
reads as to my wife if she should survive me, or her heirs if she wouldnt using well-known rule of statutory
construction that and means or. Court does this because T no living heirs, if no substitute gift to kids, it would escheat
to state. awfully good lawyering other cases on IDal fax come out 100% opposite.
Class Gifts: Avoiding Intestacy by redividing gift amongst members of a preferred class
Similar to anti-lapse: one class member predeceases, others shares increase
if class member dies, that class members share doesnt lapse/fall into residuary/pass through intestacy, but
redivided among class membaz
disposition to my siblings + 1 dies before me if made as class gift to siblings, others will take predeceasing
siblings share
Was T sufficiently group-minded in disposition? intended gift to class of people? Not

if only names 2/5 nephews
Dawson v. Yucus (1968) 376. I like this case. Class = nephews (Gene Burtle and Stewart Wilson). One predeceases
T; goes to residuary or to other cousin? Actual disposition: To Gene Burtle and Stewart Wilson; each in half. I want the
farm to go back to my husbands side of the house. They have three siblings. Court: Devise was not to persons
who come within the designation of a class but to individuals distributively. 378. Even though she wanted
to avoid fractional ownership of farm. Note: court says predeceasing created latent ambiguity, admits extrinsic
evidence. Serkin: not class gift b/c only 2/5 siblings. 3/5, maybe; CRITIC cart leading horse, dont ask is class but
what did T intend? not fractional pwn!
Rest. 13.2 (375)
Bs named, no reference to group no class gift

Bs IDs by group + ( name or number ) presumption of no class gift, but rebuttableif language or circumstances
indicate that the transferor intended the benefs to take as a group.
IDd only by group is class gift
What does the savvy attorney do? Contemplate death.
Be explicit: I leave farm to Gene and Stewart, or to the survivor of them then to X, and if both predecease, to
someone else
better-drafted will wouldnt rely on class gift rule at all. itd say explicitly.
this is why people hire attorneys! they have no reason to know w/ predeceasing beneficiary that kids might take
instead of them
Class Gifts + Anti Lapse interact, 379
anti-lapse statute applies to class gifts. in essence, anti-lapse statute applies first EPTL 3-3.3
@ EPTL must be alive @ time of naming of class to take class gift via anti-lapse, 3-3.3(a)(3)
@ UPC no requirement can be devisee of class gift whether/not dies before/after will exec
12. Non-Probate Transfers

393-403; 410-419; 436-445
NON-PROBATE TRANSFERS
Non-probate transfers: joint tenancies; PoD Ks; life insurance; trusts
Are of four types: see 393
joint tenancies: when one JT dies interest to other

contracts w/ POD provisions; occurs in closely-held partnership agreements, way of retaining ownership
life insurance: 2 forms offloading risk of premature death
(1) whole life: I pay x, but if I die before Y, you pay me. Youll likely live; Its going to pay out, so its more
expensive.
(2) term life: what most think of. I pay X, if I die while policy in effect, substantial payout to designees.
compare w/ ANNUITY: or, offloading the risk that youll outlive retirement savings & hedge against prolonged
life. pays until you die.
None of these are exempt from estate taxes! though lobbyists have ensured life insurance gets special treatment.
Why are non-probate transfers will substitutes? 2x:
revocable: can revoke until dies; ambulatory: interest of beneficiary doesnt vest until T dies
NON-PROBATE TRANSFERS: TRUSTS

Trusts: legal != equitable ownership; single greatest innovation of the CL
Vocabulary: involves 3x parties
Settlor/Grantor: sett lore; Beneficiary; Trustee: can manage as thinks is prudent

revocable: always IV; testamentary: always irrevocable
Buying things as trustee for Richard J Williams creates a trust: revocable, IV trust
Farkas v. Williams (1955) 398. Vet buys stocks for employee, asks for stock to be issued to him as trustee for
Richard J. Williams He signs declarations of trust that say its revocable, and says that The decease of the B before
my death shall operate as a revocation of this trust. name Richard J. Williams as beneficiary. Court: Farkas showed an
intention to presently part with some of the incidents of ownership in the stock. Sure, difficult to name this interest
of Williams. But he also has obligations as trustee.
Serkin is going to put $20 in trust for her. And just put it back in my wallet. If I die, youll get that $20.
But could he buy lunch? Yes, but itd revoke the trust. But Rachel has no claim. thin interest, but still a trust
Settlor-Trustees like Farkas of revocable Tr. owe duties only to themselves, UTC 603
pp. 403
most professionally-drafted trusts say spending $ counts as revocation

in many JDs, the rule explicitly is that for a revocable IV trust, the fiduciary duty runs exclusively to the lifetime
beneficiary
which means that it Farkas, wouldnt even owe B fiduciary duty Rachel is owed nothing! looks a LOT like a
will.
EPTL 7-1.1 so long as theres any other B, no merger,

7-1.1 When trust interests not to merge
A trust is not merged or invalid because a person, including but not limited to the creator of the trust, is or may
become the sole trustee and the sole holder of the present beneficial interest therein, provided that one or more
other persons hold a beneficial interest therein, whether such interest be vested or contingent, present or future,
and whether created by express provision of the instrument or as a result of reversion to the creator's estate.
trust will not fail for merger (if beneficiary and trustee merge/are same person) so long as there is anyone else who
is a B
CANNOT create trust for my benefit for life, remainder to me, in which im trustee thatd fail. But contingent
remainderman would work
Trusts as will beneficiaries: pouring over
(1) incorporation by reference say that trust is part of the will and therefore valid as part of the will. Tr. must
exist @ exec, cannot change
(2) acts of independent significance: the trust has independent significance. Must be funded during life.
Can a trust be revoked by operation of law? no; only on the trusts own terms!
What if trust instrument cannot be found at death? see if instrument provides for
revocation by physical act
In re Estate of Pilafas (1992). 414. This trust did not provide for revocation by physical act, only in writing
delivered to the trustee. 415 So when trust documents were last in his possession and we cant find them after his
death, we cant apply revocation by settlor, which assumes that physical act can revoke it..
13. Spousal Share; Omission

469-483, 484-508; 515-521; 527-539
SPOUSAL SHARE & OMISSION: RESTRICTING TMENTARY FREEDOM

How can a spouse take?
(1) intestacy, through seeking to have will invalidated; (2) forced spousal share; (3) if relevant will predates
marriage, can trigger pretermitted spouse statute
Elective Share but only in sep. prop. JD; not in communal property JD
no ante-nuptual agreement, spouse can elect: (1) take under will OR (2) elect against the will
None of these spousal protections apply in community property state no reason for them
Theories of spousal relationship: (1) partnership theory; (2) support theory
Partnership theory : spouse entitled to $ in way kids not? Support: spouse going to support kids?
Why not let kids elect? America is slightly unusual. EU: kids entitled; 1/3 to of property is mandatory family
dispositions (marriage is opt in?)
Do the math: intestacy (contest the will) or elective share?
Elective: more than just probate property included; Intestacy 50% of probate est8; Elective 30% of aggregate
estate
Some nonprobate assets are included in the spousal election share
casebook characterizes it on judicial responses to the problem in the absence of wholesale statutory reform
Some states apply illusory transfer test or intent to defraud test focus on Ts intent, rather than Trusts
nature, serkin ambivalent
Sullivan v. Berken (1984) 488. Husband creates revocable IV trust in RE. pour-over devise in residuary, Trust,
payable to 2xCronins. Appears that through this estate plan, he is intentionally disinheriting his wife. But this is
palatable: theyre 20 years separated, but never got divorced. So she is entitled to claim statutory share. Q: she
gets share of probate estate, or share only of revocable IV trust? Court: in this case, widow loses. But in future cases,
revocable IV trusts should be available for the surviving spouse to claim a share of. PS: Should we care
about other characteristic?
Not always clear that we should let spouse get to trust assets; a hypo more difficult
than Sullivan
T wants trust for a child by a prior marriage not BF gift to mistress, but late in life marriage trying to provide
primarily for his/her kids from prior marriage and in the process creates revocable trust but excludes late in life
spouse? do we think it should be OK? difficult; which assets shield?
Elective Share Statutes reject illusory xfer and other tests: apply % to augmented/net est8
EPTL Statutory response 5.1-1A, p 496 and 474
greater of (50k | 1/3 net estate) + personal property set-aside, pp. 474
spouse gets larger of: 50k | 1/3 net estate net estate disregards estate taxes (taxes paid from other money left
over)
NY does not include life insurance if you want to screw your spouse, tie it up in life insurance
UPC 2-202: the real innovator include the surviving spouses assets, and modify
based on len of marriage pp. 499
UPC: different; 75k | 50% augmented estate designed to bring elective-share law into line w/ partnership
theory of marriage
1) BEGIN WITH: 497, (1) net probate estate; (2) non-probate xfers to others, over which T retained significant
control (trusts w/ power to revoke, etc.); (3) gifts over 13k w/i 2 years of death look back 2 years instead of one;
(4) non-probate xfers to surviving spouse; (5) surviving spouses net assets distinguishing feature is inclusion of
surviving spouses assets (4) and (5) are the big difference
(2) MULTIPLE BY % of assets based on duration of marriage, p. 499, longer youre married, the greater the %
of estate to spouse
Applying the Statutes: T married for five years, each has child from prior marriage. T
dies with assets:
Probate/nonprobate?
500k Stocks
$50k savings account in trust for
daughter: Totten in name of
trust;
$300k house, In tst for T for life,
then to Ts daughter, T has the
right to revoke.
@ UPC Elective Share
Probate
Nonprobate
@ EPTL Elective
Share
Included
Included
Nonprobate
Included
Included
Included
Included

469-483, 484-508; 515-521; 527-539
200k life insurance
20k joint bank account w/ wife
Nonprobate
10.5k gift to sister 6 mos before

death
20k gift to sister 18 months
before death
Wifes assets: 250k stocks, 50k
gift to son
Included
Included, fully
Not included
$7k Included; only amount

above 13k
287k
Not included
Net Estate:
Augmented Estate
Discount
Total Elective Share
Not included
included: 5-1.1A(b)(2)
Not included
Not included
860k
1,364k
@ 30% = 409,200
* 50% = 204.6k BUT THEN
subtract Wifes share = 204k287k == 0
Intestacy x+.5(estate-x) 50k + (450) = 275k
150k + (350) = 325k
NOTE: if surviving spouse has 50% or more of what predeceasing spouse has doesnt take!
What to do here, ultimately? EPTL: dont challenge, difference too small. @ UPC: challenge! intestacy = take 325k
Always 1/3
= (1/3 * 860k) =
286,k
Why adding the spouses own assets is genius and puts UPC in support justification
land
more $ they have, less they need support, and less $ UPC gives them; odd because spousal share discount ranges
from 0-100, but marital is always 50 surviving spouse brings 1M to marriage, has as part of his/her estate,
marriage only lasted 5 years: spousal share discount = 30%. but 100% of the million is included as offset for
spouses amount
Which circumstances does each statute speak to?
Lots of late in life marriages UPC. $ & kids when get mrrd. UPC anticipates, embraces this as common model
that needs to be addressed.
Might have different feelings about the equities here (1) young couple long marriage; (2) late-life marriage
Is there a barrier to the spouse taking? incompetence; waiver/prenup

Incompetence can divert money to govt creditor/Medicaid
In re Estate of Cross (1996) 484. Choice by guardian of surviving spouse to elect or not against the share. Funny
case. Guardian elects against estate for 34k, spousal share of Buelah. Not elect against the estate Expenses
covered by Medicaid! Elect against state: Medicaid would stop if not elect (they consider assets available to you),
money taken from Ts estatewill go2 Medicaid anyway. Serkin: Forced/statutory share can include share to govt
where spouse incapacitated, that $ may go to govt.
as atty, how would you shield this from the Medicaid? You cant! Federal statute says crime to advise clients how to
shield from Medicaid.
options: life insurance, irrevocable trust (give up power of apptment/to revoke for sons benefit); life estate to
her
states authorize, special needs trusts in away that will shield assets up to the extent of limits of
medicare/Medicaid
you can waive spousal share draft a list values of assets to make it (1) voluntary;
(2) knowing
Reece v. Elliot (2006) 503. Prenupts. Both kids from previous marriages. Essentially, prenup is waiver of forced
spousal share. Requirement for this to be valid is spouse must have voluntarily signed the prenuptual agreement
for it to be valid. Voluntariness means knowing too. Hed provided schedule of assets, one of which was 1,687
shares of JH Ruth Packing Co. Didnt recite value of these shares. Surviving spouse: my waiver wasnt knowing b/c I
didnt know the value not voluntary. Court: this was knowing, voluntary. You doomed yourself; said you knew you
werent going to get any. Serkin: cannot know value, privately-held! caution is better part of valor, list values
Omitted spouse from will? Even if spouse provided for in a trust? intestate share, ish
Prestie Problem: myopic courts dont look to trusts to see if wills left disposition to
spouse entitle spouse to intest8
In re Estate of Prestie (2006) 516. Complicated fax; Maria and W.R. Presty married in 1987, divorce in 1989, but one
of the worlds most amicable divorces because then he suffers from degeneration, she moves w/ him to take care of
him, moves into his condo to him, they get remarried. Problem: in intervening years, he executes will that pours over
everything into trust; only 1 substantive provision: everything I own I leave to this trust. @ that time, trust if for
sole benefit of his son. Him and wife get to Las Vegas, he amends trust to provide LE to wife in Condo. Q: whether will

469-483, 484-508; 515-521; 527-539
omits spouse: spouse omitted can take as omitted, pretermitted spouse; if not: can claim spousal share but not
intestate share (cant get omitted spouse statute to apply). Prof: this is willfully ignorant of the role nonprobate xfers
played in this estate plan. This woman was not omitted from the trust, only from a will that solely poured things into a
trust. She is not omitted from her husbands estate plan. Court: shes been omitted, is entitled to intestate share.
See also Erikson 26.
UPC Solves Prestie problem, looks @ transfer outside the will to determine if
spouse is really omitted
UPC 2-301(a)(3) p. 518: Premarital will doesnt stop surviving spouse from taking intestate share unless: (1) will/other
E shows will made in contemplation of marriage to surviving spouse; (2) will expresses intention that tis to be
effective notwithstanding subsequent marriage; (3) T provided for spouse by xfer outside the will, intent of this
transfer in lieu of Tmentary shown by statements/rsnbly inferred from the amount or other E
omitted spouse statute doesnt let you get @ money left to kid; spouse only gets that portion of Ts estate that is
neither devised to child of T born before T married spouse nor is descendent of child
EPTL 5-1.3 spousal can take intestate share unless ante nuptial agreement in writing. !
essentially same statute as Prestie; New York will suffer from the Prestie problem
Spouse also gets 4x other things

social security spouse gets social security benefits from predeceasing spouse if
he/she wants
important feature: surviving spouse can only get benefits based on higher wage earner; either own, or spouses,
benefits
consequently, spouses each earning 40k only get that worth: not 80k
private pension plans ERISA requires spousal rights of survivorship in retirement

income plans
homestead exemption creditors cant take value of shared primary residence up to
a limit
varies by county; (NYC: $150k, value over that is subject to lein)

reflected in CPL 52.06 not in EPTL; its in NYs other statutes b/c its an exemption that applies against
creditors in any action
personal property set-aside can be quite valuable!
UPC, 474 2-403 limited to 15k!

EPTL 5-3.1 interesting and amusing in their specificity no limit! this claim trumps a will if spouse wants it to;
not part of probate estate that creditors have access to: family bible, video tapes, one car not exceeding 15k,
domestic animals w/ 60 days food
OMITTED CHILDREN?
Child born after will + omitted from will? assume unintentional
Divorce can omit a child unintentionally
Gray v. Gray (2006) 528. 1981: T, John, execs will, married to Mary, devising all estate to Mary. John has 2 kids from
former marriage. 1984: John and Mary have son Jack. 1989, divorce, agreement to create trust for Jack, including
disbursements of any kind recd by the Hubby from his mothers estate. But Mary wont get anything from Hubby b/c
his will devising it to her is revoked by operation of law @ divorce. Never changes will after divorce. Trial court
awards intestate share to Jack, this court reverses on statute: child gets intestate share UNLESS when the will
was execd, T had one or more kid and devised all est8 to other parent of omitted child problem is, this statute
doesnt contemplate divorce! he did have it all devised to the mom, but she wont take b/c of divorce. Jack: this
statute isnt about me! Ts brother will take.Drafting error in statute. Compare to UPC, p. 531.
Children are not protected from disinheritance, except in Louisiana.
But court is willing to be very flexible with its doctrines if a child is disinherited. 520
Even Louiana provides excepts forced share for just cause: including striking the parents. . . cruel treatment, etc.
521
@ UPC, omitted children get intestate share

UPC 2-302(a)(1), 531
child gets intestate share unless money devised all or substantially to other parent of omitted child AND [last
sentence under a1] other parent survives T and is entitled to take under the will the UPC requires that the other
spouse actually take!
UPC 2-302(2)(i): omitted afterborn child shares in same gift amount redivided
amongst all kids
7.5k to a, b each C is afterborn omitted child recalc, each takes 5k

469-483, 484-508; 515-521; 527-539
Parents can opt out explicitly: Calvin Coolidge not unmindful of my son,
the wonderful Calvin Coolidge Will, 527: not unmindful of my son John, I give all my estate to my wife Grace.
The Anna Nicole Smith Saga

Anna Nicole Smith. 534-36. Anna Nicole Smith had an adult son, named Daniel, left him all her property.. Probate
exception in bankruptcy code, recall that her estate litigated up and down. Her property left to pour-over trust to son
Daniel. Her will included an express disinheritance clause expressly disinheriting any other children including
after-born children not mentioned in will. Then she has another bay named Daniel-Lynn. @ birth of new baby,
adult son Daniel dies of drug overdose in the hospital that night. Now she has a baby she names Daniel Lynn. Then
she dies of a drug overdose a couple weeks later, having never amended her will. Now all her stuff goes to Daniel,
whos predeceased her, and shes expressly disinherited her new daughter. Never revised will. Who is the B?
Court: Ambiguity! It says children not just child! admit extrinsic evidence. Daniel Lynn takes.
Prof: this was std Hollywood boilerplate that belonged in mens wills.
14. Trusts: Background and Formation

541-551; 557-576; 578-588; EPTL 7-8.1
TRUSTS: BACKGROUND & ELEMENTS

Flexible counterpoint to wills.
Settlor; Beneficiary/ies; Trustee (wont fail for lack of one; surrogate will appoint)
med, surrogates court will appoint one
Why a trust? trusts are the greatest invention of the common law
powerful control for settlor over assets for beneficiary; powerful form of property ownership; separate equitable
from legal ownership
asset protection from involuntary tort creditors (Breeden v. stone) or from idiotic spenders (Breeden)
Intent to create the trust

Sole question: whether grantor manifested an intention to create a trust relationship
UTC 402(a)(2); Rest 2d Trusts 13 p 557
No specific language required; cases tend to be (1) informal intra-family gifts; or (2)
failed gifts
Fox v. Faulkner. a bear well-painted and drawn to the life is a bear, and although the painter may omit to write over
it, this is a bear. Neednt call it a trust to create a trust. Just need disposition that separates beneficial, legal
ownership of property. challenge: when has this occurred?
Court can find a trust in an order to maintain property for grandkids. Executor of
Estate is Trustee by default.
Lux v. Lux. 557. All the rest, residue, and remainder real and personal to grandkids. Any real estate included shall be
maintained for the benefit of said grandchildren and not sold until they are 21. Court: this is a trust. Something has to
happen to manage that property until grandkids are 21. Who? Executor
Dont need magical language to create educational trust, which Tree cant convert to
custodianship
Jiminez v. Lee (1976) 558. Daughter suing father. $1000 face value 1945 US Bond, $500 in 1956. Tr: S = Paternal
Grandmother; B = daughter; Tee = Lee. Formation informal: Gifts made, no one contests, for educational needs of
child. donors di not expressly direct to hold the subject matter of the gift in trust but this is not essential to create
a trust relationship. Asset management is okay: he cashes in savings bonds, invests in the market. Problem: he
purports to open investment account as custodian for daughter instead of as trustee for daughter: trust hed be
bound to use for daughters education. Custodianship: claims he can use it for any purpose. Not mentioned:
custodianship terminates by OpOfLaw @ 21, then 10-year SoL begins ticking. But SoL on trust doesnt run until Trustee
provides accounting. He: buys ballet tickets for whole family. Remedy: she can claw back $ from her father if it
hadnt been spent on education. cant, as Tee, convert to some other kind of ownership. outcome isnt surprising
given fathers conduct.
worth of mention because this informal thing probably common; recognize the ubiquity
Courts wont create trusts where theres no evidence of trust-like behaviors and
expectations
Hebrew University v. NYE I. 563. Mrs. Nye wants to give extensive library to Hebrew University. Goes to Israel,
announces gift in press release w/ president of Israel present. Formal. When people asked about, she said she had
given to the University. newspaper release claims she made gift. but no delivery: books sat in warehouse (problem:
gifts require delivery as perfect as practicable! books can be delivered!). Court must find way to give effect to gift
when theres no Q donor intended gift to be effects. Court rejects trust law no facts even intimating that Ethel ever
regarded herself as trustee of any trust whatsoever, or as having assumed any enforceable duties with respect to the
property. 565. Court: this was gift. Bends gift law, S thinks. Remands for trial to consider theories other then decl o
trust. A gift which is imperfect for lack of a delivery will not be turned into a declaration of trust for no better reason
than that it is imperfect of lack of a delivery. 566.
Hebrew University v. NYE II. 566. The circumstances under which this gift was made a public announcement a t
a luncheon attended by a head of state, accompanied by a document which identified in itemized form what was being
given are a sufficient substitute for a formal instrument purporting to pass title. 567.
Court bends law of gifts, S suggests, because we dont want trusts to be TOO easy. Have a house but take care of
your siblings is that a trust? maybe
These cases highlight tension: should there be more formal reqs for creation of trust.
Property Res confusing; not sure what to make of this material

Is the underlying property subject to SoF? then trust must be in writing for SoF
purposes
Rest 3d Trusts 41.

541-551; 557-576; 578-588; EPTL 7-8.1
An expectation or hope of receiving property in the future, or an interest that has not come into existence or has
ceased to exist, is not res. But you can assign future earnings from current K right to give away extnt K
distinguishes Brainard from Speelman:
The unintelligible case: bind an entire estate for $200 per month?
Unthank v. Rippstein (1964) 569. D gifts $200/mo to Ms. Rippstein. Letter, penned three days before death:
herewith bind my estate to make $200.00 monthly payments provided for on this Page One of this latter of 9-17-60.
She first tries to probate it as a holographic will. It has Tmentary language: I bind my estate; so long as Im alive,
he crosses out so long as Im alive looks like document in anticipation of death. You get impression that court
thinks this, but the law of the case from earlier proceeding that this document was not probatable. Im reading a lot
into the courts claim here. She wants to give effect to disposition. Court: D did not expressly declare that all of his
property, or any specific portion of the assets whichhe owned at such time, would constitute the corpus or res of a
trust for the benefit of Mrs. Rippstein. 570. cannot be tortured into a trust decl. under which Craft while living, and as
Tree, and his est8 after his death, were under a legally enforceable obligation to pay Mrs. R. the sum of $200.00
monthylf for the five-year period. 570 CB AUTHORS: this is holographic codicil.
Problem: unclear that when it was created, was created for her benefit?
What would trust res be if trust was created here? its future cash! we know $200/mo for next six years; we
can do that math
CB Authors think this was holographic codicil.Serkin: even if, how do you give effect to the will provision?
If Trust would need to ID property; If Will it would be $200 per month for next six years (Serkin: cant close
est8 for six years!)
Someones ox will be gored.
The Intelligible Case: future profits cannot be trust res

Brainard v. Commission. 572n. Declaration of Trust by a guy who says I am putting into trust today, oral
declaration, all of the profits that I will make trading stocks next year. in 1928. for the benefit of his wife, mother,
minor children. Doing it for tax avoidance. Spreading income among family members, each taxed @ much lower rate
than him, he can avoid taxation. If that trust came into existence when he claimed it did. But until theres profits
income to him, trust nonexistent until res exists. Court: this future profits cannot be trust res.
problem isnt that res is too small, its too big! too vague! if B sat @ table and said hered 100k in trust, profits
to you corpus to me, OK!
evidentiary concern? Brainards declaration was oral.
But Suddenly, if the future profits are from a play, we will award them! Serkin loves it.
But: there is an existing K here
Speelman v. Pascal (1961) 572. Pascal wrote a letter to secretary, (lover): giving 5% of his share of profits of
Pygmalion. The IP here is royalties from My Fair Lady. This is a hugely famous play. Real standby of Broadway and
high schools. A lot of money. Q: is this present transfer? This is a gift case, not a trust case: so why reading it here?
Same underlying q: is there a cognizable property interest that can be disposed of? Yes! Serkin: maybe because more
limited res than Brainard. Also: Pascal had IP rights in Shaws plays. (But brainard had rights in his own profits?!). 2
years left on license to Shaws play when he gives this assign of royalties.
Prof doesnt think you can reconcile this with Brainard. Speelman: future profits from play. Brainard: future profits
from stocktrading
in Brainard, pile of money existed. But here, didnt know it would be successful!
hard to believe that profits from stocktrading more speculative
Legal realist move: court more skeptical of tax evasion partially right? but thats a primary reason to use trusts
Prof: @ very least we should worry about future profits as trust property
How do we give future profits in trust? Fund the trust with something nominal.
Avoid Brainard outcome with nominal amount: Kal obligation, debt obligation; incorporate, give away shares
dont flirt with failure
Beneficiaries: who will enforce the terms of the trust? Cant be (1) vague; (2) impermissable
Need identifiable beneficiary. Giving Tee power to distribute to friends will create
friends. Court riffs on friendship
Clark v. Campbell (1926) 579. residuary cl. for personal property to a couple people to distribute to his friends. Q:
friends are sufficiently identifiable beneficiaries for trust to come into existence? Problem: Everyone is suddenly
this guys friend. Court: Friendship is a word of broad and varied application. 580. Lawyer prolly did this because he
doesnt want to write down who gets hunting gear, bric-a-brac, masonic jewels. Fails for want of ascertainable
beneficiary: friends not specific enough, unlike family says court (but were all 18th cousins). Is friends vague? Prof.
Lee @ Hastings says friends concept could help the law.
resulting trusts for (1) cemetery plots; or (2) pets: property goes to next of kin or
to residuary

541-551; 557-576; 578-588; EPTL 7-8.1
In re Searightss Estate (1950) 582. Trust to care for Trixie is upheld as honorary trust. if person to whom the
power is given is willing to carry out the Ts wishes. 584. trusts to animals violate RAP; not a relevant life in being.
Consequence would be a resulting trust. 2x Qs: it bequest for care of Trixie valid (a) as proper subject of honorary
trust; (b) as not violating RAP? This is fine because: honorary trust exists (no beneficiary, unenforceable); and not
violating RAP b/c the amount of money left, $1000, at $.75/day (the amount to be paid), limits the trust to operation
for 4.5 years @ 6% interest per annum. Lawyer who drafted will: Trxie no value other than that of a mongrel foxterrier dog. Frankly I would say it could be argued that the fair market value of the dog was zero. If Florce treid to sell
the dog I dont think she could give it away. 585.
No B? Honorary trust can save it, if court is willing, but its not an enforceable trust:
(1) pets; (2) cemetery plots
honorary trusts trustee is not obligated to, but nevertheless agrees to, abide by terms of the trust, and trust can
be distributed and given effect. arises in 2 places, CB,: trusts for benefit of (1) pets; and (2) cemetery plots
if an honorary trusts legatee doesnt carry out the purpose, a resulting trust will arise in favor of the Ts
residuary legatee or next of kin
resulting trusts failed trusts: property instead goes to next of kin or passes through residuary
EPTL 7-8.1 Honorary Trusts for Pets
authorizes despite RAP trusts for pets, but can only last for 21 years, because of RAP; African Grey Parrots are out
of luck
He read transcript for hearings involved in this statute; they kept laughing and cracking up when they passed this
law
Leona Helmseley, 586: $12 million in trust for Trouble
15: Trusts: Rights to Distributions

597-624
TRUSTS: RIGHTS TO DISTRIBUTIONS

What kind of trust is it? Discretionary v. Mandatory?
Is it a mandatory trust?
no discretion about payouts. any income that trust generates will be paid out to Adam. mandatory. EX classic ex: i
put his money in trust, income payable to Adam for life, reminder at Adams death to Ben
Is it a discretionary trust? still need someone whos not a dog or a cemetery plot,
and fiduc duty to consider payout
discretion to payout or not. income to adam, plus so much of the principle as the trustee will determine in Ts
discretion; it means it: no history of payouts can be used to invoke payout Tee doesnnt have to pay!
Did the discretionary Tree fail to even consider a payout?

Marsman v. Nasca (1991) 598. Sad set of facts. Theyre horse people. Sally gets lots of $ from marriage 1, he dies.
Remarries Cappy. Sara dies. Cappy remarries Margaret. Saras will: Trust to Cappy. Income to Cappy. Plus some
discretionary if, in sole discretion of trustee, if it was necessary or desirable, subject to sole discretionPlus some
discretionary. When Sara dies, Wellesley home goes by operation of law to Cappy (owned T in E, right of survivorship
Cappy owns). Trust is throwing off 2-2500/year: not much. Cappys Lord of the Manor status in jeopardy. Having trouble
paying his bills to maintain the Wellesley property. He engages transaction w/ Sally, stepdaughter: Transferred
property to her. Hed live in it, shed maintain/make payments. He retains life estate. Cappy, Sally die. This is a dispute
between Margaret (Cappys spouse) and Richard (Sallys spouse). Margaret is out on the street; she has no house
anymore. She gets no trust income anymore. This is a big problem for Margaret. She sues lawyer, not Richard! for his
actions as trustee. The problem: Trustee shouldve been paying money out to Cappy when it became clear that he
couldnt pay for his expenses. Should have invaded trust principal, trust res. Had he done so, Cappy wouldnt have had
to sell the house. Margaret wins. Court: Tee not obligated to make payouts, but obligated to examine if payment
would benefit B, like a procedural due process claim. Right to have needs adequately considered. Court: Tee not
personally liable because didnt overreach/abuse fiduciary relation sufficient to overcome exculpatory cl, 604.
Remand Remedy: pay from trust the amount that wouldve let Cappy keep the home. (@ trial ct, remedy was Richard
convey house to Marg because Cappy wouldnt have given up to Sally). Tree torn: each B has his own interests:
Cappy wants to invade principle. Sally wants as little paid out as possible.
Exculpatory clauses for drafter-trustee @ UPC: presumptively invalid unless (1) fair
under circs; (2) disclosed to S
trustee-drafter must demonstrate this, 607 counter-point: Tees often lay-people, family members
Can a creditor get at the Bs trust property/income? Discretionary v. Mandatory no, yes
different in different situations. B has debts, and creditor has judgment. Can Creditors go after trust property?
trust?
Mandatory trust yes not so great for asset protection
specific payout provisions creditors of beneficiaries can, in effect, stand in beneficiaries shoes and take that
trust property directly.
Why? in a mandatory trust, the beneficiary of the trust has a vested property interest in the trust. i want your
vested property right.
Discretionary trust sort of, but potentially difficult for creditor
no vested property interest B not entitled to particular $ amount.

traditionally: Cors of Bs of discretionary Trusts cannot get @ discretionary T funds. right to sue too thin for
creditors to occupy
Exception: cutting off action (not garnnishment)
creditor can file cutting-off action: if there is a distribution, it must come to me until my claim paid Tee
unlikely to make distributions
Tee might make distribution if it can pay off creditors and have money for lifetime B and remaindermen
also: once payments have been made to B, creditors can come after B that way
not great remedy because have to successively sue/execute judgment in the short window that B has the $
Rules for creditors vary w/ type of discretionary trust, opaque material, 609.
pure discretionary trust you can make them in your sole discretion. not that common unless dealing w/ family
discretionary support trust more common: standard applies to distributions. trust property to B to the extent
necessary for his/her education, health, and maintenance. creditors who provide necessities can recover
through Bs right to support. Rest. 2d Trusts 154, 611. (medical, food)
Important dynamic highlighted: justification for this rule is encouraging people do to business w/ benefs
Is it a spendthrift trust? It is invulnerable to creditors!

Does it impose disabling restraint upon B and Bs creditors? spendthrift!
15: Trusts: Rights to Distributions

597-624
Each beneficiary hereunder is hereby restrained from alienating, anticipating, encumbering, or in any manner
assigning his or her interest or estate, either i principal or income, and is without power so to do, nor shall such
interest or estate be subject to his or her liabilities or obligations nor to judgment or other legal process, bankruptcy
proceedings or claims of creditors or others.
this is from Shelley v. Shelley, pp. 618.
Justifying the spendthrift restriction: the legal fiction of the remorseless grandmother,
avuncular immunity
Presumption that spectre of the grandmother continues to lord over the assets is lessened in England.
England has a very different conception of what rights come from a trust belongs to Bs moreso than here
Spendthrift Trust: Combining the Mandatory Payouts of Mandatory Trusts w/ Asset

Protection of Discretionary Ts
Bars creditors of beneficiary. Real Q: why should we allow these things?

NY: trusts presumptively spendthrift.
Policy: Creditors Interests v. Asset Preservation should we ask if the creditors are
in/voluntary? Asset protection is
. . . good: Settlors, trust professionals (T&E lawyers, BoA people) like: ability to protect assets through spendthrift
provisions; trusts more valuable you might ditch spendthrift specifically to make loans, financing, easier to
acquire for B. Creditors can investig8 tr.
. . . bad: Credit card companies object. This is an aristocracy; he owes us loads of dollars!
Spendthrift trusts block even favorable, involuntary tort creditors, b/c asset
protection is a purpose in this JD.
Scheffel v. Kreuger (2001 NH) 616. Tort action: is mother of a child who was sexually assaulted by Kreuger. $550k
judgment in damages. wants to get @ the trust for Kruger. Cant get @ it, even though hell be in prison (but, court
says, hell be out some day!). hard to imagine a much more deserving creditor horrific facts; assaults child sexually
on videotape. he doesnt have $ to pay default judgment against him. but he has a large pile of money, for his benefit,
thats just sitting there. Q: should the tort creditor be able to get @ this. Hes rich. : dissolve the trust! (attach +
collect his $). Court: as long as trust serves a purpose, we wont dissolve it. and asset protection is a purpose.
Traditional view: discretionary interest invulnerable to children, spouse creditors.

Shelley v. Shelley (1960) 618. Tr: income to Grant for life, Tee to distribute to him after 30 in amounts he thinks
Grant capable of investigation. T has discretion to distribute corup to grant od kids in case of emergency. Alimony
judgments against B, B gonedisappears. Kids and spouse go after Tr. as creditors based on alimony & child support
judgments. Court says: children can get child support through accessing INCOME of spendthrift trust. Court: split of
authority, the duty of the husband to support his former wife should override the restriction called for by the
spendthrift provision. Trust Corpus cannot be invaded because its discretionary as to B. Wont allow distribution of
trust res for purpose of child support/alimony because discretionary trust allows even more asset protection than
spendthrift.
payouts to kids didnt require invasion of asset protection. Tr. provided standard for payout to kids directly,
as Bs themselves, @ discretion of Tee, if case of any emergency arising whereby unusual and extraordinary
expenses are necessary for th proper support and care of my said son, or said children. So court here takes this
emergency (desertion by father!) to exist and permits kids to take as Bs; kids could invade corpus.
discretionary aspect was enough to resist claims from spouse and, in theory (b/c of factual wrinkle here) from
children.
court carves out policy exception: unfair to ask society to pay while this guy laughs all the way (alone without kids
or wife) to bank
@ UTC 502, pg. 620 spendthrift valid only if restrains BOTH (a) voluntary & (b)
involuntary xfer
so if settlor really wants asset protection of spendthrift provision, must remove Bs right to alienate impinges on
donative freedom
@ NY 7-3.4: Station in Life + presumption of spendthrift
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets,
and to steal bread. (19th century French book)
7-3.4. Excess income from trust property subject to creditors' claims
Where a trust is credited to receive the income from property and no valid direction for accumulation is given,
the income in excess of the sum necessary for the education and support of the beneficiary is subject to the claims of
his creditors in the same manner as other property which cannot be reached by execution.
all trusts presumptively spendthrift, with bonus of station-in-life rule, NY CL, Creditors can reach only the amount in
excess of what is needed to maintain the B in his station in life rich people get more
station in live gives rich people more.
16. Trusts: Modification

641-666
CAN WE MODIFY THE TRUST?

6 - Modification then?
Can Bs revoke the trust? look @Tr. otherwise, no modification/revocation if
contrary to material purp. o S.
if S + all Bs agree: Tr can be revoked no one else has an interest in the trust; but S is usually dead
Rest. 2d: merely make beneficiaries better off not grounds for termination/modification
Evolution of Doctrine: a tale of two contrasting cases
Fax: Tr. to kids for life, R to grandkids. S dies, but lifetime Bs (kids have mentally ill kids (Rmen). lifetime B, parent
of disabled child, petitions for modification: dont pay out put into special needs trust (only pay out to
extent that wont interfere w/ assistance)
In re Struchell (1990) 643. applying Rest. 2d court doesnt permit modification merely because such
modification would be more advantageous to beneficiaries. Asking for new trust, with elaborate provisiosn . . .
designed to avoid his become DQd . . . for any public assistance.
In re Riddel (2007) 645. Father lifetime B of trust, remainder to his kids. 1 daughter, Nancy, bipolar disorder. Tr.
will terminate, distribute corpus to grandkids, when they are more than 35. Father seeks modification: once him
and wife die, kids are over 35 and will get corpus; plz modify because once theyre distributed, State of WA will get
due to her medical bills or shed manage poorly due to mental illness. Asking for special needs trust instead of
payout to Nancy. Court permits modification where: (1) changed circumstance not anticipated by S; (2)
modification/deviation will further purpose of trust. overall purpose is to give effect to Ss intent
Pros and Cons of: modification, termination, Tree removal are power to Ss @ cost to
Bs
CON: Disease happens. Lawyers should ask. This isnt new. Shouldnt lack of preparation for this show S didnt
provide, we should listen to S? increasing reluctance to use trusts if unsure that expressed views will be followed
PRO: Allow: if we worry about slippery slope, why not worry about subverting Ss intent? @ most general level,
isnt Ss intent to provide for Bs in best way possible? is it possible to subvert Ss intent if acting in Bs interests?
increasing the appeal of trusts by upping their flexibility
Special needs trusts and how they keep it from the state only pay out to extent that
wont affect benefits
in Will you disclaim interest youre entitled to, that can affect eligibility for govt support
Serkins Life Situation: Just how important is Ss anticipation? People can be in denial.
..
Wifes older brother is schizo, incapable of taking care of himself long-term, only day to day. Cant have job. Parents
(Serkins ma and pa in law) have mixture of acceptance and denial about sons capacity, life state. Also: secretive
about money and financial planning. Imagine their est8 plan for their 2 kids (Serkins wife and her mentally ill brother)
doesnt mention his incapacity and in fact involves a trust for the benefit of them both.
Should Serkin be able to seek modification b/c Settlors plan will be diasterous? nothing has changed!
Tax benefits permit modification in some JDs, MA rejects
Modification now?
Rest 3d 66 if because of circumstances not anticipated by S the mod/dev. would
further the purps o the Tr.
645. However, if trustee knows/should know of circs that justify action under (1), and knows they have potential to
cause harm to Tr or benefs, Tree has duty to petition court for modiciation!
UTC @ 645 if, b/c of circs not anticip8d by S, mod or term will further purps o the
tr. must accord w/ Ss intent
must accord w/ Ss probable intention
Other states hesitate due to conservative trust bars, NY + MA (MA doesnt even
permit mod for tax purposes!)
Trust Protector? offload modification to third party, pg. 651
flexibility w/o giving Tree more power; give 3d pty power to modify trust: Mas isnt good w/ $, but she plans good!
what duties owed?
Termination: What counts as a material purpose?
cant terminate trust if material purpose of trust remains; trust still serving material purpose cant seek early
termination
Rest. 2d trusts 65
16. Trusts: Modification

641-666
REST 3d Trusts, 656: if all Bs of an irrevocable trust consent, they can compel temrin8on or modification BUT
if term/mod inconsistent w/ material purpose of Tr cannot compel except w/ permit of S
if S dead need court determination that term/mod outweigh material purpose
UTC 411 spendthrift provision not assumed to be material purpose of trust
UT 411, 656: all Bs can terminated if court concludes that continues of Tr is not necessary to achieve any
material purpose of the Tr; modification where not inconsistent w/ material purpose
note: spendthrift provision not presumed to constitute material purpose!
Asset protection of spendthrift trust is a material purpose. So spendthrifts unlikely to

termin8, if this is taken seriously
having a spendthrift trust shields the assets of the B from creditors, and thats a material purpose of it
Even where all living Bs consent, cant terminate trust that provides for income to
lifetime Bs
In re Estate of Brown (1987). 653. Not spendthrift trust. Tr.: to [provide an edu . . . for children of my nephew,
Woolson. Once all edu done, as detd by Tee, income from said trust and such part of the principal as may be
necessary shall be used by said Tee for the care, maintenance and welfare of my nephew, Woolson, and his wife,
upon their demise remainder paid to living children. Education expenses met (Bs entitled to educational support
had gone through). No more educational expenses anticipated. Tree was simply paying out to the nephew for life.
All Bs (nephew and next gen down) petition to have Tr. terminated. No purpose: education paid off, and itll be helpful
to Bs if $ is disbursed now. Court: no. material purpose of the trust to provide asset MGMT and in fact that
material purpose remains. we want to manage these assets for the nephew for life. Counter-point: this wasnt
spendthrift, so is it true to say that S aimed to provide for asset MGMT outside of Woolsons discretion? Tee is
litigating here; all Bs agree. cynical view: he wants fees. Good faith view: defend Ss intent! UNUSUAL not to permit
termin8n in this case b/c not spendthrift Bs could have sold off interest!
If all Bs agree, does Tee risk liability by not terminating?
liability to other Bs (unborn?), but states have limited this by confining standing upon termination to takers living
today
Remove the Trustee?

Authority: UTC 705, pp 660
Policy: Increase Tee removal increasing competitive pressure; discipline the trade by increasing ability to
remove them
You can rename your Tee if you meet statute on pp. 661, and this family does.
Davis v. U.S. Bank National Assoc. (660). trust, Mercantile Co eventually sole trustee. Respondent is lifetime
beneficiary w/ remainder to kids. This is a trust that a grandfather has set up for kids for life, then remainder to
grandchildren. Resp. wants to remove Mercantile and replace with UST Co of DE. Their fees are cheaper and theyre
closer geographically. Mercantile worries about liability to unborn beneficiaries. MO law defines qualified beneficiaries
as someone who is alive and would be eligible to take in certain circumstances. Objecting Tee, Mercantile: wait,
Resp. lifetime beneficiary, can represent remaindermans interests. Court dismisses banks appeal.
Serkins Story: a trust thats paying out too slowly, and doesnt permit for
modification, governed by MA law
Great-grandfather, 1937. Tmentary Tr., spendthrift, $ to boys outright. Girls in Tr, for benefit of daughters for their
lives. R to their kids by representation (Snobi!). R not distributed until 21 years after death of each lifetime beneficiary.
2/3 daughters died a while ago, their kids got trust principal 21 years later. Snobi lived long time, died in 2002. Her
kids old now.
They want their $ now, not in 2023! want ti dissolve trust
What can Serkin doe?
Removal of Trustee? all Bs alive, set class, all in agreement but MA law not as flexible in Tee removal.
awkward, vaguely threatening convo with BoA last week: they say: (1) out fees are standardized and has been
held not inappropriate; (2) if you pursue it, well hire outside counsel at the trusts expense to litigate that
zero bargaining power!
modification/termination: Change of circumstances? (1) ppl living longer; (2) bank not at all the same, charging
way more; Stu args:
grandma living until 100 enough to justify modification/termination? modern generalized view that women can
manage their own $?
bank being sold off a change of circs? (Serkin: unlikely) thats why banks buy banks? What should we do?
Knowing this story, how will we alternatively draft in the future?
Trigger replacement of Tree; peg Tree rate to other things, permit change o trustee for fee
17. Trusts: Powers of Appointment

803-805; 813-836
APPOINTMENT?
Whats an appointment? Instantiation of humility (Im not sure who best B is. . .)
A delegation by Donor to Donee to appoint Objects as beneficiaries
TO my wife for life then to whomever my wife shall appoint.; but donee could be anyone; to my wife then
whoever Tristan shall apt.
Who are valid objects? General v. Special Powers of Appointment
General can be exercised in favor of donee, donees estate, or donees creditors on his/her own behalf, looks
like ownership
Special can be exercised on behalf of a defined group of people that does not include donee, donees estate,
donees creditors
to wife for life, then to whichever of kids wife shall designate wife cant exercise on own behalf!; way to
ensure stays in family
When can they exercise the power? Lifetime or testamentary?
lifetime powers of appointment exercised @ any time

testamentary powers of appointment: exercised @ death of donee typically requires power to be execd in
donees will
Was the appointment exercised properly?

Did they exercise it properly? (general/special? lifetime/tmentary? in will)
sometimes, cant be exercised through residuary: whoever my wife shall appoint, so long as she refers specifically
to this power of appointment within her will. . . ask if someone exercised the complete power of appointment
No exercise of power and no gift-over? 832
general back to donors estate (Rest. 2d) (@ Rest. 3d reverts only if donee expressly refrained from exercising
the power)
special if objects are defined and limited class, passes to them; otherwise, reverts
Is a residuary devise an execution of a power of appointment?
Majority: residuary cl. not presumptively exec power of apptment

Minority: residuary cl. execs general power of apptment unless contrary intent appears Beals v. State Street
Bank & Trust.
NY: residuary cl execs special power of apptment if residuary devisees are objects of the power
Why different for gen/specific? G looks more like outright ownership, presume residuary capturing all property; S:
looks less like own prop
Minority rule in action: general residuary cl. execs general power of apptment even
though some power given up
Beals v. State Street Bank & Trust Co. (1975) 813. Tr.: income to wife for life, R to surviving daughters and their
daughters. surviving daughters get income for life, principal to be appointed by will. Tmentary power of
appointment exercisable only in the will. In default of exercise, intestacy. Isabel, a surviving daughter, given
general testamentary power of appointment, but also had the Tee use his discretion to give some assets over to her
during lifetime. Isabel, for tax reasons (special powers of appetent treated more favorably) releases power of
appointment to the extent that such power empowers me to appoint to any one other than one or more of the . . .
descendants [surviving me] of Arthur Hunnewell. release right to appoint self, state, creditors. Converts general
to special. Now, she has special tmentary power of apptment. Her will does not explicitly mention the power of
appointment: the rest, residue, and reaminder of my property to sisters. Court: close enough to general power of
appointment, treats it like one: she had use and enjoyment of the major portion of the property initially placed in
her trust share. 817. When she voluntarily limited the power by selecting the possible appointees, thus
relinquishing the right to add the trust assets to her estate, she was treating the property as her own. Id. in
these circumstances: partial release of general power doesnt obviate rule of construction presuming general residuary
cl. execs general power of apptment.
Fraud on the power? Objecting to objectifying an object to achieve your own

objectives over the Ss objectives
Problem, 823. E wants to exercise her appointment power to benefit husband though hes not permissible object. She
colludes w/ a permissible object of the power: Ill appoint $250k to you if you give $100k back to my husband. give
to illegit object through legit object
unenforceable, bad idea power goes unexercised, and legitimate object doesnt get to keep the fraud proceeds
K to exercise power of appointment? invalid! . . . but can release!

17. Trusts: Powers of Appointment

803-805; 813-836
Siedel v. Warner (1975) 827. Steven is beneficiary of trust w/ power of appointment. If unexercised giftover in
default to Stevens kids per stirpes. He divorces his second wife in Mexico, and agrees to exercise his power of
apptment on behalf of their 2 kids. Then he doesnt. Few week/s months later, exercises it on behalf of his new wife.
Thats bad. cannot K to exercise tmentary power of appointment, even with bad actor. it cant be called a
release when it said husband shall make . . . a will in which he shall exercise: that contemplates his action and a
retention of power! Also: there is mismatch between trust and agreement to appoint: agreement provides for
appointment of agreater principal to Anna and Frank than they would get in default o appointment.; tr says in
default, property to 4 kids in fee: separation agreement: trust, income payable to harriet as trusee.
Cannot K to exercise power of appointment. Supposed to be discretionary up until moment of donees
demise. so, donee not allowed to bind him/herself in exercise of power up until death that K invalid inverse of
Ungiving Grandmother
CAN release it. If the grant of power provides for gift-over in default, that provision will activate, and same end!
courts might say no
Did the donee exercise the complete power of appointment? Does the instrument
provide a gift-over?
pretty baffling case that requires a bit of unpacking
Loring v. Marshall, 832. 1898, Mariam Hovey dies. Trust, with powers of appointment. He nephew has a special
power to appoint the trust principal to his wife and issue with the limitation that only the income could be appointed
to a widow who was living at Marian Hoveys death. 833. Power of apptmnt where nephews are donees, but special
power execable only on behalf of their wife and kids. Also: wife can be given no more than income for life. The
problem language: if neither of my said nephews leaves such appointees then living, the whole T fund
shall be paid over and xferred in equal shares to some charities. Gift-over in default if nephews leave no
appointees then living. Cabots will: $1 to Cabot Jr., I exercise appointment to my wife, right to income during
lifetime of all the property to which my power of appointment applies. Result: Court ends up awarding to Cabot., Jr.
(though his dad disinherited him) but hes dead, so it goes to his adopted stepdaughter. Serkin: this document
drafted poorly. Another view: you can only keep it in family for so long. Specific power used to keep it in family line.
Mariam wouldve wanted Cabot Jr., to take, but Cabot didnt want Cabot Jr. to take. Ultimately her will trumps. But bad
drafting.
Fixes: (1) change gift-over. in the event that power unexercised, then to my heirs by representation and if none
then to charity?; (2) remove wives cant get more than income for life
Q now, 100 years later after Marian Hovey has died: who gets the principal of the trust? Several choices: #1: All ot
Cabot Jr.: no, Cabot didnt want Cabot jr. to take; #2: all to Anna; no, Marian didnt want wives to take
principal; #3; to Cabot, to Anna; nah, this is bad for 1 + 2; #4: back to Marian Hovey, through her estate;
no, she didnt want intestacy to control her estate; #5: to the charities she clearly wanted family to keep it
wives for life preserves principal! #6: something else 834
I will submit to you this is badly drafted document its as if she wanted to say so long as I have living heirs I
want them to take.
18. Trusts Administration

667-695; 725-736
TRUST SUPERVISED PROPERLY BY TREE?

What are the remedies when a Tree breaches?
personal liability by of the Tee to the beneficiary the 800 lb gorilla

potential liability of 3rd pties w/ whom Tees deals, to the trust, depending on whether theyre bona fide
counterparties or not
Duty of loyalty? Tee must act on Bs behalves, not on behalf of self

DoL exception: bank allowed to invest assets itself if its the Eor, Tee
Trustee cant sell to himself, or sell to himself through his spouse
Hartman v. Hartle (1923) 675. Tor D owns a farm, directs executors to sell and divide proceeds amongst kids five
children. Names two of her sons-in-law as executors. They sell farm to Ds son Lewis, who buys for sister Josephine,
executors wife. Lewis buys it from estate for $3,900, transfers to Josephine, who sells it 2 months later for $5,500.
Quick profit of $1,600. Another one of Ds kids sues: this transaction violated Es duty of loyalty. Importantly: Court
broadly rejects any claim of intent to defraud or bad faith; these guys were acting above-board, not
underhanded transaction at all. Yet it violates DoL. DoL applies not only to self-dealing by Es but also their
spouses. Court: because a trustee cannot purchase from himself at his own sale, and . . . his wife is subject
to the same disability, unless leave so to do has been previously obtained under an order of the court. Remedy
Josephine must pay 1/5 share to complainant (her sibling). ~$320/kid. Resale cannot be ordered because innocent
purchasers now own land. How to avoid? (1) explicit consent from all Bs this will go a long way as to the fact and
terms of transaction; (2) renounce being executor if you know sister wants the farm, you dont need to be E
No Further Inquiry: Conflict dispositive; dont ask if there was GF, even for neighborly
farmers who maximize utility
In re Gleeson (1955) 676. Highlights strength of DoL. Farmer has year-to-year tenancy on his land. Someone owns
land but isnt farmer, will rent out to nearby farmers. Farmers dont own land, they just farm it. Neighbor had y-t-y
tenancy, $6/acre. She died, named farmer executor for benefit of her kids. Same DoL applies. Problem: she died
15 days before crops had to be planted. Farmer said much, much too late to find any other T to come in and rent
farmland. Id been farming it for years, I couldnt go out and find someone else on this short order. he ups the rent
hes paying to $10/acre, plants own crops. Court: this violates DoL. Remedy: [pitch]fork profits over to the trust
that you made in that crop year.
How to avoid? (1) got explicit permission from court/Bs; (2) hope that S wrote this action into the trust
CRTIC this highlights harshness of no further inquiry: this farmers safest course of action would be not to plant,
even though planting makes everyone better off! Hard to imagine anyone operating in better faith raises prices,
helping neighbor
No further inquiry rule dumb! Lets focus on effect on the Bs! Not assign dispositive weight to existence of
conflict.
In re Rothko, or: How I Learned to Stop Obeying TROs And Make the Court Hate Me
In re Rothko (1977) 679. Basic take-away is straightforward. Mark Rothko dies testate. Estate includes 798 Rothko
paintings of tremendous value. Understatement. Hugely valuable collection. Rothko dies, they: immediately sell
couple hundred paintings for 1.8M. Then gallery ups its commission from 10% to 50%. Unlike farmer who increases
rent hes paying gallery is like hehe well get 50%! looks enormously like tremendous conflict of interest, if not
self-dealing. He names as executors 3x close friends. (1) owner of gallery through which he had always sold most
of his paintings. artist gallery owner relationship is strong. breached through upping commission (2) another
friend of his who is a mediocre artist but trying hard; breached by acquiescing to curry favor w/ owner. (3)
someone else in art world whos far removed and seemed skeptical about all of this, to his credit breached by
contuing to accede. Rothkos daughter sues and wins big. Irony: Rothko left her out of will, but then-existing
(repealed in 1981) EPTL law says if all left to charity, child can elect to take . So omission gave her standing. Who
do Es offend here? Charities! not daughter. Award of 8.5 mill goes to charity, to daughter. Remedy is big issue
here: Hard to overstate how badly owner did here. Violated TRO not to sell! Court: appreciation damages
extraordinary award. appreciation != (fair market value @ date sold what gallery actually sold for) not injury @
time court bases dmgs on what if gallery hadnt sold at all counterpoint: told to sell!
Query: did Rothko anticipate this kind of conflict? Hed always sold through this gallery. Imposing penalty for
success? gallery gave art value
Beware of damages! Be creative! Introduce evidence! Ask for big damages; contest
such request with own evidence.
Rothkos damages were inflated because high damage figure from was only figure court saw\
Duty of Prudence: changed with investment theory
historically, DoP met if conservative as possible. Preserve principal. liability would never attach if you were
extremely conservative
old joke: how to make a small fortune? take large fortunte and give it to a trust company. nifty fifty
safe stocks
Now: (1) no such thing as ironclad stock; (2) lowering risk of loss is exposing to risk of inflation, interest rate risk,
general segment risk
Change in standard: prudent man prudent investor pp. 964
must actually manage assets, account for Bs risk profile, look beyond risk to capital: inflation risk, other sources
CRITIC: Prudent man also raises problem of hindsight bias. In re Chamberlains Estate (1931) 691 It was
common knowledge, not only amongst bankers and trust companies, but the general public as well, that the stock
market condition [in August 1929] was an unhealthy one, that values were very much inflated, and that a crash
was almost sure to occur.
Duty of impartiality: 725 what kind of investments do we make?
balance interests of beneficiaries, lifetime and remainder; problems of front-end management (drafting) v. backend investment decisions
Portfolio manager can control how much income generated v. how muchprincipal growth (all into stocks that pay
no dividend, like Apple)
Lifetime beneficiaries v. Remaindermen: deathbed gambling addict v. the young

father saving for college.
Howard v. Howard (2007) 726. Leo and Marcene late-in-life second marriage. Agree to come to marriage w/ own $. 5
kids (L has 3, M 2) from prior marriages. They do 2x: TRUST 1 not at issue: [actually two trusts, one for L, one for
M] (1) create Tr they both contribute to that it will provide for survivor for life, remainder to all 5 kids; (2) this T allows
Tree to invade principal to provide for needs of Bs. L, M contribute in different amounts. L: 60%; M; 40%. To reflect
difference in # of kids they have (L 3, M 2). But this trust isnt at issue! L dies, M is already income beneficiary for life.
TRUSTs 2 & 3, REVISE TRUST 1: L creates other trusts @ death w/ rest of his $: (a) family trust as much $ as
estate tax deduction will allow; interp in line w/ tax rules; pour over into (b) marital trust, residue from other. net
income of both (a) and (b) payable to Marcene, no invasion of Pr. On Ms death, residue of marital goes to family, then
divided among Ls surviving kids and surviving issue of his kids who predecease L and M. I intentionally make no
provision herein for any of my stepchildren. (because theyre provided for in FAMILY TRUST). This one is for benefit of
M for life, then really for my kids. PROBLEM: Coy, remainder man, and M, lifetime income B, disagree about
investment strategy; think that it should take into account that M has other income. Unstated, but Coy likely wants to
increase principal whereas M wants to throw off income! RESULT: no, instrument repeated that My support,
comfort, companionship, enjoyment and desires shall be preferred over the rights of the remainderman. After my
death, in the event my spouse survives me, my spouses support, comfort, companionship, enjoyment and
desires shall be preferred over the rights of the remainderman. 727. Awkward: L appoints M and Ls son Coy
as co-trustees (Coy + stepmother are co-trustees for this $)
Want more income? Ask for UPIA to apply! Uniform Principal and Income Act
Many states including NY adopted UPIA: Tee can reallocate b/w principal and income; Serkin: BoA said we wont
terminate, he said apply UPIA, accelerate payout as much as possible consistent payout over time regardless
of how much income Tr. was actually generating
Tree must request. Authd by statute in most states, you as Tree must seek application ofit -- you can apply if
even if Tr. created before UPIA:
Unitrust: one step further. 735 peg everyones interests to the size of the principal.
powerful; problem solving
Aligns interests o income & remainder Bs: gone is distinction b/w income and principal; specifies % of value of
estate/trust thatll get paid out every year income B is entitled to x% o principal; S can hook it to some interest
rate. both income & remainder B want pie to expand!
Serkin: unaware of a downside w/ unitrusts:it just makes so much sense vulnerable to miscalibration @
inception, but otherwise great
In re Heller, 731. Tr.: Residuary for benefit of wife Bertha for her life. Ds brother Frank is Tee, and his sons Herbert
and Alan Tees upon Franks death. Yearly, B gets greater of 40k or total income of trust. Remainder upon Berthas
death to: 60%[30 each] (Ds daughters Suzanne and Faith), 20% each(Ds stepsons, Berthas sons, the Tees,
Herbert and Alan). Herbert and Alan move to convert to Unitrust, which brings berthas income from 190k to 70k.
Problem: Tee is remainder B; can he still move for unitrust? Court: Unitrust in NY specifically drafted to allow it.
widely-available tool, powerful tool, in fact used a lot. seeking application of Unitrust statute for that purpose he
was trying to convert Tr form huge income, not increasing in value, to one increasing in value but paying less.
Important: Sure, Alan and Herbert were remaindermen and Tees but there were also other Bs! Faith and
Suzanne! So this is not obviously in self-interest. Alan, Herbert owed duty.
Serkin: interesting. conflix w/ DoL stuff; these Tees have clear self-interest in maximizing value to selves over
stepmother.
unitrust factors listed on 735 fn.
17. Powers of Appointment

803-805; 813-836
CHARITABLE TRUSTS
(1) purpose instead of IDable benef; (2) not subject to RAP : important area of law
instead of a beneficiary, trust is defined in terms of a charitable purpose; wont fail
for lack of B
no B is capable of coming into court to enforce, so we have AG do it authority & obligation to enforce these
in some states AGs dont really do much about this. in NY, it is a credibly threat to go to the AGs office but:
nuclear; lose control
no defined B recharacterize it as charitable trust; line is blurry; its not as if theres different documents; its a Q
of how you interp it.
not subject to RAP a big deal; can be perpetual. listen to credits of All Things
Considered! Melville chtbl Trust.
this is a primary reason for the existence o these.

If trust violates RAP try to claim its charitable!
What are valid charitable purposes? Need more than benevolence
(a) relief of poverty; (b) advancement of edu; (c) advancement of religion; (d) promotion of health; (e)
govtal/municipal purpose; and (f) other purposes the accomplishment of which is beneficial to the cmmty
(e) seems like a catch-all, but courts have interpreted it narrowly! its not a massive catch-all.
Why bother requiring a charitable purpose where theres no RAP? Critic. Because
then everyones a charity!
Critic: Guy just wants to give $ to children! should we abandon this restriction altogether! Reality check: I just
want to create A . . . charitable? . . . trust to give to all my descendants forever? NEVER! dead hand control.
evil.
Critic: Many states repeal RAP in effort to attract trusts. in those, is there any reason at all?! probably not!
Not a charitable purpose: giving money to kids one mans fruit vendor is another
childs savior:
Shenandoah Valley National Bank v. Taylor (1951) 752. Crazy old fruit vendor. Daughter died; he appears to have
loved children. Sad story. Cared for in part by (second or third) cousin. Shock: he has $. Dies w/ $86,000 that he leaves
in Tr. w/ direction to pay out proceeds twice per year to all first, second, third graders in local public school. is Ds
next of kin. Believes she should be entitled to some of the property: if she can show that Tr. is invalid, itll create
resulting trust, a failed trust, and prop will pass to residuary if there is and intestacy if there isnt. Court: trust is
invalid. Purpose is benevolent, laudable, good; but not charitable w/i meaning of Tr. law. Important point:
charitable purpose are narrowly defined, 753, list. Serkin: lack of test hurts; insert language about poverty,
etc.; give as scholarship; convert to 21-year private trust
Last category, beneficial to community, is not a catch-all
Tr. to fund litigation against prayer in school? Beckett funds. Yes. Religion/edu. * Tr. to put beautiful flowers in
bouquet of lobby of Metropolitan in NY exists. * George Bernard Shaws alphabet trust 759 not for advancement
of edu nor beneficial to cmmty.
Cy pres when courts modify charitable trusts: no RAP lets them become stale, outdated
Doesnt apply to private trusts. Expect more cy pres as JDs repeal RAP.
1000-year trust gets cy pres because it will gobble up the economy.

Hartwick College, Catskills. B of gft in late 1960s, looks like 2.8M. Says that trust terminates 1000 years from now,
no payouts until then. AGs: cy pres; Tr would swallow entire economy. If you truly dont pay anything out, thanks to
miracle of compound interest, it would be worth untold trillions of dollars, and will own entire American economy
must modify! also left to Unitarian church, which AG said would be 2.5 gquarillion $. appointed his descendants as
Tees; effort to give them $ in perpetuity? no naming restrictions; name not on buildings
Ben Franklin left $1k each to Boston, Philly to not be paid out for 100 years. When they paid out 100 years later,
Boston and Philly each recd close to $600,000.
Is Cy Pres available because you have too much $? yes court did grant cy pres, court said it needs to pay out
interest, it does now, $450k/year
Cy Pres in application: (1) general charitable purpose then we can give you a more
specific one.
General charitable purpose court must be satisfied that donor/S/Grantor had general charitable purpose ;
was generally charitably minded then, w/i that: specific plan, so that modifying specific application was not
really interfering w/ overall intent
19. Charitable Trusts

751-774
No General Charitable Purpose Only narrow, specific one? No cy pres. remedy is failure of trust
Rest, UTC presume generable charitable intent cy pres always available; lower hurdle, increased litigation. pp.
763
Cy pres for a hospital when its more convenient to just use the neighboring towns
hospital?
In re Neher (1939) 761. S creates trust to create Herbert Neher Memorial Hospital in home town of Red Hook. Town
accepted the property & Tr.; 6 years later, another hospital opens. Wed like to create some municipal office buildings,
Herbert Neher Memorial Municipal Building. Is this appropriate modification? She gives it with the direction to said
Village that said property be used as a hospital to be known as Herbert Neher Memorial Hospital. Court: her
paramount intention was to give the property in the first instance for a general charitable purpose rather than a
particular charitable purpose, and to graft on to the general gift a direction as to the dires or intentions of the Tor as
to the manner in which the general gift is to be carried into effect. This grafted direction may be ignored when
compliance is altogether impracticable and the gift may be executed cy pres through a scheme to be framed by the
court. . . . 762
Should property be used for that purpose OR should we do something else with it? Whatll come closer to Ss
intent?
Should we, for example, give property to hpspital that opened next town over? Create Memorail walk-in
methodone clinic?
Problem: figuring out whats most consistent w/ Ss intent
The Barnes Foundation

Odd doctor, odd rules, extending into perpetuity. . .
single greatest private collection certainly in this country and maybe planet. an unbelievably valuable collection.
very strange, difficult person. resentful of Philadelphia Society, which never accepted him. an eye for impressionist
art, traveled in Europe, collected from artists
He had peculiar aesthetic theories; part of those involved how the art had to be hung. feature of this theory is that
art hangs in wall of art. you might have a cezan hanging up high here you cant see it
He put all of his paintings and some $ in trust, with directions: hundreds of millions of dollars if not more
(1) museum always be open, admission not charged; (2) no painting could ever be rearranged/moved; (3) no
painting could ever be lent out or sold; (4) everything be kept entirely intact; building also in trust
Problem: he didnt leave enough cash to support trust: Tr. no way of making income, closed; paintings dirtty
Tees petitioned for cy pres. to allow the Barnes collection to go on tour. raised millions of dollars this $ then
invested in sprucing up building but then ran out of $ again.
few years later, Tees, with strong support of Philly cultural elite, many of the largest charitable orgs in country
locate in Philly. they all get together (notice; these are the exact people tht Barnes hated, Barnes hated Pew)
Moved all of the art, into new space Tried very hard to create same hanging of art, judge overseeing it was clear to
preserve vision as much as possible but its an enormous fight in nonprofit circles about the extent to which the Ss
intent should continue to control
Basically
youre essentially stealing from the settlor: contravening his intent, doing things hed never have wanted, this is
theft of a kind the documentarys perspective
counterpoint: you have this incredible cultural asset that isnt being made available to anyone, it was impossible to
get to the place, art terribly displaced, not being cared for nicely. absolutely modify terms of the trust to permit
access.
Something of a standoff challenge to cultural organizations all over the country.
Related hypo: donated Rembrant but only if Met recreates living room?
abide by agreement b/c theyd not have gotten it otherwise Met wants to enhance credibility to get donations
people 50years down the road pay the price of someone who made this acquisition.
Gardner museum in Boston created w/ charitable trust, gift-over to Harvard if fails, none of the paintings can be
moved says Tr., so Harvard people go make sure theyre still hanging. even though theyre forgeries.
What Cy Pres Exposes About TE

Intergenerational, intertemporal externalities. Dead hand v. Tmentary intent.
another word for dead hand control v. testamentary intent

short term benefits v. long-term costs of loss of flexibility cy pres preserves flexibility b/c concerned that people
will bet wrong or impost costs b/c they dont care
Wrestling with (1) effecting Ts desire; (2) protecting what courts think is in societys beste itnerests
Tmentary freedom is central goal and animating principal of this area of the law
But we see limits to it in each doctrine:
application of specific rules/formality requirements said to be in interestof tmentary freedom though they @
times interefere w/ it
17. Powers of Appointment

803-805; 813-836
doctrines like forced spousal share that explicitly interefere w/ testamentary freedom
useful to look @ the doctrines weve studies with this in mind
the flexibility we find, stress points that courts use courts using undue influence, mental capacity, etc. to
interfere w/ Tmentary intent b/c theyre not sold that Tmentary intent should be as aparamound as law
pretends it is
Index
index
Adoption, 5
Ambiguity, 27
Dissolution, 31
latent, 23
Latent, 23
Same-sex, 6, 9
Simultaneous Death, 5
Standing
separated not divorced, 25
Trustee
codicil, 29
Signature, 13
Trusts
Cases
Holographic
Myopic, 26
Non-probate transfers, 24
Policy
Talking points, 14, 15, 19, 21, 23, 31, 36, 38
Pour-over will, 26
Purging statute, 11, 14
Remedy
as guardian, 9
conflict between lifetime, remainder Bs, 30

$20 for Rachel, 24
evidentiary concern in oral trust, 29
Merger, 24
Pouring over, 24
Revocable, 24
Revocation, 24
Wills
no-contest clause, 9
Pictures of real documents: 173, 236, 267, 275, 278, 359,

I Trusts Professor Serkin To Estate The Facts Spring 2012

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I Trusts Professor Serkin to Estate the Facts Spring 2012

Intestacy: did someone die without a will?3

Will Challenges: how to strike down a will!8

Formalities: strike down will if noncompliant11

Why engage formalities that disengage Ts intent?

Curing defective execution?12

28 - NY does not allow holographic wills.

Holographs: did someone write something testamentary?13

Best practices: revoke former will w/ formalities AND dispose of residuary

Extrinsic evidence: can we look outside the will?17

Overview: Increasing T flexibility post-execution

Modify the will to get @ what T wanted? Mistake, reformation19

44 - Mistake, Reformation: when doctrine obstructs Donors Intent

Property in will changes after execution21

Did the B die before the T?22

Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 1

2: Cal and prudential limitations on the SC

No Residue of a Residuary! But not @ EPTL

Non-Probate Transfers: Trusts24

Spousal Share & Omission: restricting tmentary freedom25

How can a spouse take?

Trusts: Background & Elements28

Flexible counterpoint to wills.

Trusts: Rights to Distributions30

Can we modify the trust?32

Trust Supervised properly by Tree?36

What are the remedies when a Tree breaches?

2 | Brendan Rigbys Trusts and Estates Spring 2012 Serkin

1. The Right to Inherit and to Convey, Intro to Probate

Does a law force something to escheat? its a taking, not Cal

Whats the purpose of probate system?

How does probate work? Executor manages.

1. The Right to Inherit and to Convey, Intro to Probate

2 | Brendan Rigbys Trusts and Estates Spring 2012 Serkin

2. Professional Responsibilities; Intestate succession

Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 3

INTESTACY: DID SOMEONE DIE WITHOUT A WILL?

Did a spouse survive?

Same-sex spouse? Probably not going to take; check state law

as typically drafted, spouse means spouse marriage.

Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 4

Default rule: generally per stirpes.

often, strict English

No spouses left & no children left? Ancestry and Collaterals, 92

UPC 2-103(4), p. 74 modified parentelic, limited to grandparents and descendants

@ EPTL 4-1.1 modified parentelic, limited to great-grandchildren of grandparents

Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 6

3. Intestacy: Simultaneous Death, Children

EPTL 2-1.6: no clear/convincing evidence to have survived > 120 hours

so above, if T stayed alive 121 hours, she/her dad takes

Practice Tip: how to draft survivorship provisions

Is an adopted child a child?

Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 7

3. Intestacy: Simultaneous Death, Children

vi) not child of foster parent(s)

Instrument clearly intended not to include adoptees cant be defeated by adoption:

You cannot un-adopt a child.

Defensive Adoption: Adopt to Deprive of Standing

Posthumously conceived child is it issue for intestacy purposes?

Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 8

3. Intestacy: Simultaneous Death, Children

A thought on posthumous conception

Brendan Rigbys Trusts and Estates Spring 2012 Serkin | 9