ESTATES AND TRUSTS

I. INTRODUCTION:
1) The Living and the Dead: Whose Money is it?
a. Shapira v. Union Nat. Bank (OH Pleas, 1974)- Conditional Wills & Public Policy
i. Facts
1. claims he should not have to marry a Jewish girl from Jewish parents in order to receive his
inheritance.
2. alleges that the condition upon his inheritance is unconstitutional, contrary to public policy and
unenforceable b/c of its unreasonableness.
3. claims that the right to marry is protected by the 14th DPC
ii. Law
1. A partial restraint on marriage which imposes a reasonable restriction is valid so long as it is not
contrary to public policy
a. Condition must be:
i. Reasonable; and
ii. Not against public policy
iii. Holding
1. The will is valid
2. The condition on marriage is only a partial restraint and had it been cannot marry at all then it
would be void for public policy
3. This is not against public policy b/c unlike Madox, today there are planes and telephones and the
capabilities to find Jewish women
4. The court found it critical that the will 1) had a gift over (i.e. the gift would go to Israel if the
condition was not satisfied) and 2) the gift over shed light on Ts purpose in promoting Judaism.
b. Terminology
i. Testator- A person who has written a will
ii. Testate- A person who dies with a duly executed will
1. A clause directing disposition of property is called a device, legacy, or bequest.
a. Device = real property
b. Legatee = money
c. Bequest = personal property other than money
iii. Intestate- A person who dies without a will
1. An intestate decedents property passes to that persons heirs, who are designated by the
jurisdictions statute on intestate succession
c. Inheritance Rights More Generally
i. Both the right to receive property, and the right to dispose of property are rooted in positive law
(statutory) subject to legislative adjustment
ii. There is no fundamental right to devise property
d. The government/state should:
i. Encourage Inheritance because:
1. To encourage people to save
2. People want wills to provide for their familys future success
3. To encourage work (not laziness)
ii. Discourage Inheritance because:
1. People become lazy (Promotes the wealthy)
2. Increases Taxes
e. Mechanism to achieve these goals include:
i. Get rid of wills
ii. Place no restrictions on wills
iii. Place little tax on wills
f. Ford v. Ford (COA MY, 1986)- Slayers Rule
i. Issue
1. Whether RF qualifies under the slayers rule to the benefits of her mothers will when she was
ruled insane in a criminal trial for murder in the 1st?
ii. Facts
1. RF seeks to assume the benefits under her mothers will after RF murdered her mother.
2. RF had been convicted guilty of murder in the 1st but was found not guilty for reason of insanity
iii. Law

1. MD Slayer Rule (Minority)- A beneficiary of a will who intends to commit a felony against the
Testator of that will not assume the benefits of the will unless the beneficiary is criminally
irresponsible
a. Elements to be barred benefits of a will under MD Slayer rule:
i. Commit a Felony;
ii. Have requisite Intent;
iii. Be Criminally Responsible
b. The MD Slayer applies to those claiming through or under him- This means that heirs
who receive the benefit of the killer are not entitled to the benefits conferred in the
testators will to the killer.
2. A Civil Trial Court determines whether an individual meets the elements for the slayer rule based
on the legislative guidelines for elements of the crime.
a. The civil courts use of legislative guidelines is justified because:
i. The legislature is supposed to reflect consensus in the community
ii. This also provides for consistency in the application of the law
iv. Holding
1. The Court held that Pearl was entitled the benefit of Ts will even though Pearl murdered T
because Pearl was found legally insane by a preponderance of the evidence in civil court.
Therefore T was not criminally responsible
g. Difference between MD Slayer Rule and UPC (Uniform Probate Code):
i. The UPC encompasses more than just Wills (i.e. life insurance)
ii. The UPC allows a criminal proceedings verdict to be dispositive as to intent/criminal responsibility so
long as the criminal appeals process has been exhausted
iii. The UPC allows a benefit to the killer to pass on to their heirs and treats the killers interest as if it had
been disclaimed prior to the death of the decedent.
2) The Role of the Lawyer, and the Lawyer/Client Relationship
a. Hotz v. Minyard (SC of SC 1991)- Broad View of Fiduciary Relationship
i. Facts
1. M owned 2 car dealerships. Ms son T was in charge of the Greenville dealership and Ms
daughter J worked at the Anderson Dealership.
2. M signed a contract with GM making Judy the successor dealer of the Anderson dealership
3. M came to Ds law firm and made 2 wills. The first will left T the Greenville dealership, made
bequests of 250K, and divided the remainder equally.
4. M made a separate will to the knowledge of no one that instructed D(lawyer) to give T the real
estate of Greenville dealership upon Ms death
5. M was admitted to hospital and J took care of M while T managed the Anderson dealership
6. T refused to relinquish control of the dealership and fired J
7. M made a codicil to the will and removed J and her children as beneficiaries
8. J met with T, her mom, and D and dropped her lawsuit in return for restoration in the will. T
eventually terminated J from her position again and J filed a lawsuit against both T and
D(attorney) for breach of contract.
9. J contests that D breached his fiduciary duty to her by misrepresenting the will b/c she assumed
she would regain the Anderson dealership
ii. Law
1. A fiduciary relationship exists when one has a special confidence in another so that the latter, in
equity and good conscience, is bound to act in good faith
iii. Holding
1. The lawyer had a fiduciary relationship with J b/c the lawyer was so entwined with the familys
financial affairs that each individual could be viewed as having a special relationship with him.
2. Lawyer had prepared Js tax returns for 20 years and prepared a will for her.
b. Rule 1.6 Confidentiality of Informationi. A Lawyer shall not reveal info relating to the representation of a client unless:
1. Client consents; or
2. It is done to prevent an act likely to cause death or serious bodily injury
c. Rule 1.7 Conflict of interests:
i. A Lawyer shall not represent a client that will be directly adverse to another client unless:
1. Lawyer reasonably believes he can represent the client; and
2. Each client consents after consultation

d. Barcelo v. Elliot (SC TX, 1996)[Minority]- Very Narrow View of Fiduciary relationship
i. Facts
1. E drafted a will for B and an intervivos trust for her that distributed income during her life time
and upon death it was to be distributed among children and grandchildren
2. Bs grandchildren contend that the trust was never funded by the cash and shares of stock
3. Bs grandchildren filed a malpractice action against E.
4. s contend that attorneys owes a duty to specific persons listed as beneficiaries w/in the will.
ii. Law
1. Common law- Lawyer only owes a duty to the testator of a will for legal malpractice and not 3 rd
party beneficiaries. (minority)
iii. Holding
1. No professional duty was owed by the lawyer to the beneficiaries because if there was a duty of a
lawyer to beneficiaries of a will then:
a. There would be a loss of attorney control over relationship w/ client
b. More Conflicts of interests
c. Unlimited lawyer liability
d. Even if there is no tort liability, the party can recover under Third party beneficiary
(contract theory)
e. Three ways of evaluating legal malpractice claims by potential beneficiaries:
i. Broad View- A lawyer is liable for legal malpractice to anyone who can show injury under the will or that
they were an intended beneficiary.
1. Pro
a. Attorneys will be more careful in drafting wills
b. Encourages attorney specialization
c. The Ts intent might be given more respect
2. Con
a. Promotes frivolous lawsuits and unlimited liability for legal malpractice
ii. Narrow View- Only those specifically named as beneficiaries in a will can have a cause of action for legal
malpractice.
1. Pro
a. Fewer potential s
b. No unlimited liability
2. Con
a. A will could potentially leave out an important beneficiary
b. A lawyer is liable to more persons than the T
iii. Very Narrow View (Minority)- A lawyer is only responsible to the Testator of a will for legal malpractice
(Barcelo v. Elliot, SC TX, 1996)
1. Keep in mind the estate could bring a cause of action but they are generally not injured
2. Pro:
a. Keeps legal costs down (No Unlimited liability)
b. Less conflicts of interest
c. Increases confidence of lawyer in attorney/client relationship
3. Con:
a. Lawyers are subject to no liability
b. Lawyers will take less care
3) Probate and Non-Probate Transfers
a. Probate:
i. What is it, and who needs it?
1. Those who need proof of legal title to Ts property or when there is a conflict as to estate
distribution
2. If T dies intestate then administrator is appointed by the court to gather and disburse the assets
during probate
3. If person dies with a will then an executor named in the will gathers, executes, and probates the
will
4. Property can pass through probate if the owner has divested himself of the property by the time of
his death. This often turns into litigation as to whether the T owned the property at death.
b. Gifts (Non-Probate Transfer)
i. Gruen v. Gruen (COA NY, 1986)

1. Facts
a.

c.

claims that T (father) retained possession of a painting but gave the remainder under
a life estate via an intervivos gift.
b. claims that the painting was an invalid intervivos gift conveyance
2. Law
a. A valid intervivos disposition of property requires: (3)
i. Present irrevocable intent to transfer ownership; and
ii. A valid delivery (actual or constructive); and
iii. Acceptance by the donee (assumed if of value)
b. The proponent of a gift has the burden of proving each of these elements by clear and
convincing evidence
3. Holding
a. The T validly gave the the painting as an intervivos gift and T retained a life estate in
the painting.
b. T had written a letter to while he was in undergrad stating that T was giving the
painting for his birthday but that T was retaining it for his lifetime. This letter was
destroyed by instruction of his father.
c. However, 2 other letters were received corroborating the fathers plan. Here there was
constructive delivery via the letter.
ii. Gifts Causa Mortis
1. A gift causa mortis takes precedence over a will because a will does not come into affect until the
death of the Testator.
2. Gifts causa mortis are revocable if the donor suddenly recovers
Joint Interests w/ Right of Survivorship (JTROS) [Non Probate]
i. Joint tenancies, Tenancies in Common, Tenancies by Entirety and life estate are non probate transfers
ii. Joint Tenancy w/ Right of Survivorship- An equally shared present possessory interest in real property that
does not transfer to ones heirs but instead automatically goes to the other JT upon the death of one JT.
1. Four Unities: (TTIP)
a. Be acquired at the same time
b. Both JTs must have the same title
c. Both JTs must have the same interest
d. Both JTs must have the right to possess the entire property
iii. When would you encourage a JTRS?
1. W/ married couples
2. Persons in the same position who do not want their interests to pass to their heirs
iv. What can you do to avoid later litigation regarding JTRS?
1. Have Proof of intent for a JTROS
2. Have JTROS in will
3. When JT or TIC dies the transfer of property occurs in a non-probate transfer. (this is not limited
to real property)
v. Franklin v. Anna National Bank (COA IL, 1986)- Determining existence of JT
1. Facts:
a. Whitehead was having eye problems. He went to the bank and changed his bank account
to make it a joint account with in sister-in-law, Goddard.
b. A joint bank account is considered to be property held in joint tenancy with right of
survivorship, which meant that if either account owner dies, the entire account is legally
owned by the survivor.
c. Goddard made no deposits or withdrawals to the account.
d. Later, Franklin came to care for Whitehead. He sent the bank a handwritten letter saying
that he wanted the account changed to be jointly held between himself and Franklin.
e. According to bank policy, Goddard's name could not be removed from the account by
letter. She would have to come in and consent to have her name removed.
f. Whitehead died, Franklin was named executor and attempted to get the money from the
bank account. The bank balked, and interpleaded to determine if the money should go to
Whitehead's estate or to Goddard.
g. The Trial Court found that the money should go to Goddard. Franklin appealed.
h. Goddard's name was still legally on the bank account, so as the only surviving joint
tenant it was her money.
2. Law

a.

The basic rule is that clear and convincing extrinsic evidence of intent can overcome the
plain meaning of a non-probate instrument.
i. This is slightly different from the rule with wills. With wills, there must be a
latent ambiguity with a will before you can bring in extrinsic evidence of intent.

3. Holding
a. The Appellate Court reversed and found that the money should go to Whitehead's estate.
b. The Appellate Court looked to Whitehead's intent, and found that there was clear and
convincing evidence that he never had any intent to give a gift to Goddard, he was using
the joint tenancy for his own benefit in case he needed help getting his money from the
bank.
c. In addition, Whitehead had made an attempt to remove Goddard's name, which also
spoke to intent
d. Other non probate transfers
i. Joint accounts at death
1. Courts generally enforce survivorship joint bank accounts assuming
a. Depositor didnt revoke during his lifetime
b. The decedents estate doesnt introduce clear evidence that account was only for
convenience
ii. UPC allows depositors to open single party or multi party accounts and allows POD designation w/ or w/o
ROS.
iii. TOD (Transferable on death) accounts
I. INTESTATE SUCCESSION
1) Introduction and Representative Statutes
a. 4 reasons for intestacy statutes:
i. To protect financially dependent families
ii. To avoid complicating property titled and excessive subdivision of property
iii. To promote and encourage the family
iv. To encourage the accumulation of property by individuals
b. An intestate succession statute is relevant when:
i. D (decedent) has no will or has an invalid will
ii. To determine standing to contest a will
iii. A will mentions heirs- Therefore we need the statute to figure out what is a heir
iv. A will doesnt have a residuary clause (i.e. incomplete will)
c. Fundamentals of Intestate Succession (Order of Distribution Intestate)
i. 1- The share of the surviving spouse- Under common law a spouse was not an heir but had dower or
curtsey rights and only a life estate in real property and distribution share in personal property of husband
1. Descent- rules for intestate succession to real property
2. Distribution- rules for intestate succession of personal property
3. Most states intestate succession laws leave everything to a surviving spouse because
a. Most people leave to spouses in wills
b. Spouse can provide for children
c. Spouse can manage financial affairs of kids who are incompetent
ii. 2- Descendants take to the exclusion of collaterals
1. The decedents direct lineal descendants take to the exclusion of collateral relatives.
2. This is, so long as a decedent has children, grandchildren, or great grandchildren, virtually all
statutes preclude decedents siblings or any more relatives from inheriting. (issue = descendents)
(issue is NOT heirs)
iii. 3- Distribution among collaterals
1. If no spouse or descendants then distribute among collaterals
a. Collaterals include brothers, sisters, nieces, nephews, cousins and all other relatives who
are not direct lineal descendants or ancestors.
2. If one or more or decedents parents parents are still alive then they generally take to the
exclusion of other relatives.
3. If decedents parents are dead:
a. Most statutes hold that descendants of decedents parents inherit to the exclusion of
relatives who are descended from decedents Grandparents (i.e. brothers and sisters or
nieces and nephews- Not, aunts, uncles, 1st cousins)
iv. 4- Only blood relatives and the Surviving Spouse inherit (Degree of kinship, Table of Consanguinity p. 69)

1. At CL, if decedent had no close relatives, his closest living relatives, no matter how distant,
remained entitled to take.
a. Laughing heir statutes- Statutes which preclude inheritance by relatives too remote from
decedent
i. MO 474.010 Intestate statute- Limits to the 9th degree
2. Only Blood Relative and the surviving Spouse may inherit
a. Virtually all intestate succession statutes exclude relatives by marriage, other than
decedents own spouse.
b. Although decedent may refer to his wifes sisters kids as nephews and nieces, those
children are not nieces and nephews for intestate succession purposes and would not be
entitled to inherit unless specifically included w/in Ts will.
i. i.e. Brothers in law and sisters in law are excluded (same for step children)
d. Terminology
i. Heirs at law- The persons entitled to take decedents real property
ii. Next of kin- The persons entitled to take decedents personal property (Can also be used to mean closest
blood relative)
Examples: (MA Intestacy Statute (p. 70), UPC 2-101 (p. 72))
iii. Overview- a typical intestate scheme- basic structure of most descent and distribution statutes is the
same. Statute provides a list, in order, of who takes in the event an individual dies, and how much each
individual is entitled to take. Typical scheme is as follows:

Who takes?

How Much?

1. Surviving spouse

100% if no surviving issue, parents, or issue of parents; or

50% if one child, or issue of one deceased child, or no child but parents, Or
issue of parents; or
33% if > one child (alive or deceased w/ issue.)

Any property not passing to surviving spouse passes as follows:

2. issue
3. parents
4. issue of parents
5. grandparents
6. issue of grandparents
7. next of kin
8. escheat to the state

equally
equally
equally
equally
equally
by degree of relationship
100%

Tiered approach- once live taker tier determined, all that the surviving spouse did not take is distributed to that
tier, no property falls to a lower teir.

UPC approach- 2-102- 2-105- has fewer tiers of takers and a different method of calculating their respective shares:
Who takes?
1. Surviving spouse

How Much?
100% if no issue or parents ;or
100% if all Ds issue are also issue of surviving spouse
And surviving spouse has no other issue; or
200,000 + 75% of rest if no issue but surviving parent; or
150,000 + 50% of rest if all issue are also issue of surviving
Spouse and surviving spouse has other issue;
$100,000 + 50% of rest if one or more issue not issue of surviving
spouse

Any property not passing to a surviving spouse passes as follows:

2. issue
3. parents
4. issue of parents
5. grandparents/issue

6. Escheat to state

equally
equally
equally
50% to paternal grandparents or survivor;
Otherwise to their issue equally;
50% to maternal grandparents or survivor;
Otherwise to their issue equally;
If no surviving grandparents or issue on one side, all to the other
side
100%

UPC favors surviving spouse- compared to most state intestate schemes, the UPC gives the surviving spouse a
larger share of the deceased spouses estate.
UPC favors state- decedents property escheats to the state much sooner.
2) The share of the surviving Spouse
a. Estate of Goick (SC MT, 1996)- Divorced? Collateral Standing? Personal Rep?
i. Three Issues
1. Was T divorced? No
2. Does the collateral of T have standing? Wanda (mom) does but brothers/sisters dont
3. Is the spouse an appropriate personal representative? Yes
ii. Facts
1. T & B were married in 1981 and made 3 kids
2. T filed for dissolution in 12/1990. A hearing was scheduled 4/25/199- The judge rendered the
parties divorced
3. The parties ended up refusing to sign their settlement agreement and no further proceedings
occurred in the divorce action and no final decree was filed in re to the divorce
4. T died in 1992 and 2 days later B moved to dismiss the divorce proceeding.
5. B and the children of T through their guardian ad litem entered into a distribution agreement as
the only heirs of T.
6. A notice of distribution was filed and appellants objected to it. The DC approved the agreements.
7. Appellants (Ts collateral) claim they have standing as creditors on the estate but the only person
who filed a creditor claim against the estate is Wanda (Ts mother).
iii. Law
1. A party has no standing where there is no personal stake in the outcome of the controversy
2. If a personal representative hasnt been named under will and there is no devisees, the Ds
surviving spouse has priority for appointment
3. Heirs are allowed to form a consent agreement as to the distribution of benefits of a Ds intestate
estate subject to the objections of those with standing.
4. Intestate beneficiaries may agree to distribution of an intestate estate via a settlement b/t the
parties and the estates personal representative
iv. Holding
1. Distribution between Spouse (B) and decedents children is appropriate, and Collaterals motion to
compel settlement of case is denied
2. There was no divorce b/c there was no final decree of divorce
3. W (Ts mom) has standing to object to Bs appointment b/c she is a creditor of the estate
4. The other collateral of T do not have standing b/c brother and sister are not creditors nor are they
named beneficiaries
5. The spouses claim to be the personal representative of the estate is valid but Ts mom has
standing to challenge it if the spouses interests are directly adverse to the childrens
b. Notes on Intestacy:
i. UPC 2-802 A person whose marriage has been terminated by divorce or annulment doesnt qualify as a
surviving spouse and a surviving spouse doesnt include an individual who was a party to a valid
proceeding concluding to terminate all marital property
ii. Some jurisdictions provide:
1. Abandonment and failure to comply with an obligation to support a spouse terminates the right to
take by intestate succession.
2. Some also terminate intestate succession for adultery and other emotional harms

iii. Appointment of Personal Representative (PR)- Generally there is a statute that determines who the
personal representative is if not appointed in a will. A surviving spouse is generally the default PR but
creditors can be also.
1. PRs have control over the estate and they are compensated for their work out of the estates assets
iv. Domestic partnerships- Most states do not recognize domestic partnerships in regards to intestate
succession (i.e. gay, lesbian relationships)
v. Transgendered Spouse- A court in KS denied marital intestate succession rights to a person who underwent
a gender transformation (In estate of Gardiner)
vi. If there is a property settlement in place, the couple may be considered divorced by the Court.
3) The share of lineal descendents:
a. When an intestate T is not survived by a spouse, Ts lineal descendants generally succeed to the entire estate:
i. Issue:
1. In what proportions do lineal descendants share in the estate of the T?
b. Three forms of distribution to lineal descendants under intestacy:
i. Strict Distribution Per Stirpes
1. Ds estate is distributed to the generation of Ds in direct lineage to the D, regardless of whether
any of the children are living. If one of the descendents closest in lineage is dead then the interest
passes naturally to their next descendent proportionally split.
a. X A, B, C = 1/3 Interest Each
i. A(Dead) D, E, F (Children of A = 1/9 each)
ii. B(Dead) G, H (Children of B = 1/6 each)
2. Pro- Descendants interests are similar to the interest they would receive had the deaths in lineage
been more normal
3. Con- Descendants w/ more kids give smaller shares
ii. Modern Distribution Per Stirpes (Majority)
1. Ds estate is divided first at the closest generation to the decedent in which there is at least one
descendant living. The interest is then divided proportionally to the lineal descendants thereafter.
a. i.e. If the first generation of descendants of X are dead and 1 descendant of 5 is alive in
the 2nd generation, then the division of Ds interest start in the 2nd generation.
iii. Distribution Per Capita At Each Generation (UPC- representation)- A form of distribution where each
descendant receives their share of inheritance in their own right and not representative of their parents.
(Per Capita means by head)
1. 1st- Divide Ds estate to his surviving descendants in the generation nearest to D which contains at
least one surviving descendant
a. Note- If a person is dead in this generation and has no issue then their interest is divided
between the others
2. 2nd- If a member(s) in the 1st generation that was divided is dead and leaves issue, then they all
receive an equal portion of the remainder interest left over from the persons alive in the prior
generation.
a. i.e. If D dies leaving A, B, C and C, and A are dead but A left 2 kids and C left 1 kid, then
B receives 1/3 interest and A and Bs kids each receive 2/9 (2/3 * 1/3) interest in Ds
estate
c. General Rules:
i. Any living descendent of T cuts off the right of the descendants own children to inherit
ii. If a Ts child dies before T, then the childs interest goes to their child assuming T spouse is dead.
iii. If T survives all of his children then states are split as to how to distribute Ds estate assuming Ds spouse
is dead. (3 methods- See above)
4) The share of ancestors and Collateral Heirs
a. General Rules
i. Most Intestate succession Statutes give preference to Ds (decedents) parents over collateral relatives
1. Descendents of parents (brothers, sisters, and their descendants) take to the exclusion of other
collateral relatives
2. If there are no descendants of parents, descendants of grandparents (uncles, aunts, 1 st cousins, and
their descendants) take to the exclusion of descendants of more remote ancestors
b. Estate of Locke (SC NH, 2002)- Laughing Heir 4th degree
i. Facts

1. Geraldine M. Locke died intestate with no spouse, children, siblings, parents or grandparents. Her
nearest kin were two first cousins on her maternal grandparents side (4 th degree) and four first
cousins once removed (5th degree) on her paternal grandparents side.
2. The probate court found a share of Ts estate in appellee (5th degree)
3. Appellants (4th degree) claim that they are entitled to the whole estate as under the 4th degree
ii. Law
1. Where a statute mandates that [i]f there is no surviving issue, parent or issue of a parent but the
decedent is survived byissue of grandparents, half of the estate passes tothe issue of the
paternal grandparents if both are deceased, the issue taking equally if they are all of the same
degree of kinship to the decedent; and the other half passes to the maternal relatives in the same
manner half of the estate goes to one side and half to the other. No representation occurs if all
are of the same degree of kinship.
iii. Holding
1. The court held that the maternal and paternal sides receive equal halves and then it is distributed
pursuant to which of the 3 forms of distribution they follow (SPS, MPS, DPC)
2. Appellants reading of the statute would render the clause that provided the entire estate to go to
one side if there are no surviving issue of grandparents on the other side superfluous.
5) Defining the Modern Family: Halfbloods, Adoptees, and Non-Marital Children
a. Halfbloods
i. Definition:
1. Whole Blood- A whole blood is a descendent who is the biological result of their 2 parents (this is
between siblings, i.e. half sister, half brother)
2. Half Blood- A Half Blood is a person who shares one parent of the Ds descendants but not the
other spouse
ii. Law
1. The modern trend is to treat half bloods the same as whole blood (Majority)
2. Other Possible Outcomes: (p. 96)
a. UPC 2-107- (Modern) - Treats whole bloods the same as half bloods; or
b. Florida- Half bloods get as much as whole bloods of equal degree; or
i. i.e. Count the whole bloods 2x and the half blood 1x to get the portions correct
c. Mississippi- Whole blood relatives take to the exclusion of half blood relatives.
d. Ancestral Property alternative - Halfbloods take equally with whole blood unless the
inheritance comes from ancestral property
iii. NOTE: Not dealing with the estate of the parent just dealing with the estates of other siblings
b. Adoption
i. Rule
1. Common law- The Common law didnt recognize adoption and the right to inherit by adopted
persons (Adoption is a creature of statute)
ii. Estates of Donnelly (SC of WA, en banc 1972)
1. Issue
a. May an adopted child inherit from her natural grandparents?
i. We are looking at the intestate statute because the will left everything to the
spouse who was dead
i. Drafting Point- Have a residual clause and specifically list who should inherit
upon the death of another descendant; have a contigency
2. Facts
a. T and his wife had 2 kids. After T died, Ts wife remarried and Ts new husband adopted
their child. (i.e. stepfather adopted the kid)
b. The kid claims he can inherit from T under the intestacy statute. (Ts will didnt have a
residuary clause- therefore intestacy statute is applicable)
3. Law
a. An adopted child shall not be deemed an heir of his natural parents and cuts off the
inheritance from natural grandparents
4. Holding
a. The child is not entitled to inherit from the kids biological father b/c the kid was adopted
by his stepfather, thereby divesting him of all inheritance from biological father.
b. The minority thinks the kid should not be divested of her biological inheritance b/c she
maintained in a family relationship with her biological family minus her dad.
c. The legislative policy was to gives kids a clean start

i. Adopted persons are divested of natural parents/grandparents inheritance rights

ii. An adopted persons records are sealed, so their identity is unknown to the
natural side
iii. The legislative intent therefore was to removes the adopted child from her
natural bloodline for inheritance purposes.

c.

iii. UPC
1. UPC 2-114 Parents and Child Relationship: - Same as Donnelly
a. Except under b and c, an individual is a child of her natural parents regardless of marital
status
b. Adopted person is child of adopting parents and not natural parents but adoption of child
by spouse of either natural parent has no effect on the relationship b/t child and natural
parent or child or the right of child or a descendant of child to inherit from natural parent.
c. Inheritance from or through a child by either natural parent or his kindred is precluded
unless that natural parent has openly treated the child as his and has not refused to
support the child.
2. UPC 2-113: Individuals related to Decedent through 2 lines
a. An individual who is related to the D through 2 lines of relationship is entitled to only a
single share based on the relationship that would entitle the individual the larger share
Equitable Adoption
i. Bean v. Ford (SC CA, 2004)- Equitable Adoption
1. Facts
a. B was a foster child of F. B calls F mommy and daddy, was listed as brother on life
insurance app, had power of attorney over Fs estate, and administered Fs daughters
estate. A witness testified that F wanted to adopt terry.
b. Mrs. F told their daughter that they wanted to adopt B but she thought they couldnt while
B was in the home.
c. B claims the right to inherit the intestate estate of F as Fs equitably adopted son
d. Fs niece and nephew who have not had contact with F for 15 years, and who didnt
attend Fs funeral, petition to determine distribution rights.
2. Law
a. CA Probate Statute 6454 Elements: A foster parent or stepparent is deemed a parent for
the purpose of succession when:
i. The relationship began during the person's minority and
ii. The relationship continued throughout the joint lifetimes of the person and the
person's foster parent or stepparent.; and
iii. It is established by clear and convincing evidence that the foster parent or
stepparent would have adopted the person but for a legal barrier.
1. i.e. natural parent doesnt give consent or the foster parent doesnt meet
certain requirements (single sex, marital status)
b. Equitable adoption (EA)- allows a person who was accepted and treated as a natural or
adopted child, and as to whom adoption was promised or contemplated but never
performed, to share in inheritance of foster parents.
i. Elements for Equitable Adoption (Bean v. Ford)
1. There is a strong familial relationship; and
2. CCE that potential parent intended to adopt the person
a. Test:
i. Objective conduct indicating mutual recognition of an
adoptive parent and child relationship to such an extent
that in equity and good conscience an adoption should
be deemed to have taken place.
ii. i.e. If the child changes their name to the potential
parents last name
3. Holding
a. B does not inherit b/c B was not equitably adopted b/c T could have adopted B but did
not and never told anyone else that they wanted to adopt B (Court followed the CA
statute)
b. Equitable adoption should be allowed narrowly b/c everyone could then establish a
family relationship easily
c. Equitable adoption requires Clear and convincing evidence b/c:

i. The claim lies in inherent justice and not statute

ii. Involves a relationship with the D who cannot testify to their intent
iii. A too relaxed standard could create danger that a person couldnt help out a
needy child w/o having to adopt
d. T lacked intent to adopt B b/c:
i. B didnt take Fs name nor represented him as his child
ii. Ts single statement to B was not CCE that T intended b to be as his adopted son
ii. What is the broad rule regarding equitable adoption? What is the narrow rule? What are the pros and
cons of each?
1. Narrow Rule- Requires a strong familial relationship and intent to adopt in order to acquire an
equitable adoption.
2. Broad- Only requires a close familial relationship in order to acquire an equitable adoption
a. Con- increased litigation
iii. Notes on Equitable Adoptions
1. Even when a court recognizes equitable adoption, the adoptive parent is not entitled to inherit
from the adopted child
iv. Generally, an adopted child CAN NOT also inherit from their adoptive parents family members
1. Board of Edu. of Mont. County v. Browning (1994)- Adoptive cannot inherit from collaterals of
new parent
a. Court held that adopted child cannot inherit from the new parents collaterals b/c
collaterals had no say in whether to adopt the child and could have no knowledge of the
adoption
d. Non-Marital Children
i. Common law- Non-Marital children were filius nullius- the children of no one. They were not entitled to
inherit from or through either parent
ii. Modern Law- Non-marital children are at least accorded the right to inherit from and through their mother
1. Reasoning- States can justify excluding non-marital children from inheriting only by applying
procedural rules designed to assure adequate proof of paternity
a. 2 issues:
i. What proof is adequate?
ii. When must the proof be offered?
iii. Three methods for determining whether a non-marital child may inherit from a non-marital father
1. New York EPTL 4-12- Inheritance by Non-Marital Children (1st four required during fathers
life)
a. A non-marital child is a child of the father if:
i. A court order acknowledges paternity
ii. Father signs an instrument acknowledging paternity
iii. Paternity is established by CCE and the father has openly and notoriously
acknowledged the child as his own.
iv. A blood genetic market test had been administered to the father which together
with other evidence establishes paternity by CCE
2. California Statute
a. A non marital child is a child of the father if:
i. Court order was entered during fathers lifetime declaring paternity
ii. CCE that father has openly held out the child as his own
iii. It was impossible for father to hold child out as his own and paternity is
established by CCE
3. Uniform Parentage Act (UPA)
a. A man is presumed to be the father of a child if:
i. The mother and father are married when the child is born during marriage
ii. Child is born 300 days after the marriage is terminated
iii. Child is born during an invalid attempted married or 300 days after its
termination
iv. After birth of child, father and mother attempted marriage in compliance with the
law and father asserted his paternity and 1) filed w/ state, 2) agreed and named
father on birth certificate, and 3) father promised in record to support chills as his
own.
v. For 1st 2 years of childs life, child resided in same house w/ child and openly
held out as his own.

iv. Wingate v. Estate of Ryan (SC NJ, 1997)

1. Issues
a. Whether natural born children should be treated the same as adopted children?
b. Whether the state legislature intended to adopt all the provisions of the UPA within their
probate statute?
2. Facts
a. and her son filed complaint to establish that her and her kid are heirs of T (non-marital
alleged father)
b. s mother was married to T and had kid while married to T.
c. T died intestate but told alleged kid that he was his biological father and so did mom.
d. Kids DNA test shows kid is Ts child
e. The NJ parentage statute was amended to follow the parentage act
3. Law
a. Child born in wedlock is presumed the child of the married father and mother. This is a
rebuttal presumption.
i. A paternity action must be filed within a reasonable time after discovering the
possibility of a different natural father
ii. If the presumption is rebutted then child can inherit from true natural fathers
estate
4. Holding:
a. The court held:
i. The UPA didnt effect the distribution of heirship under the probate code
ii. The state legislature did intend their probate code to take the standard of CCE
but not the 23 year SOL from the UPA
iii. Therefore the court held that the child was NOT barred a claim that the father
was their parent in regards to heirship.
iv. The court thought punishing a child is an unjust way of deterring parents from
having non-marital children
v. UPA 602 Standing to Maintain Proceeding
1. A proceeding to adjudicate parentage may be maintained by:
a. The child, mother of child, man whose paternity of child is to be adjudicated, support
enforcement agency, adoption agency, a representative authorized by law to act for
individual deceased/incapacitated/minor, or an intended parent under Article 8
vi. UPA 607 Limitation: Child having Presumed Father
1. A complaint under UPA to adjudicate parentage of a child having a presumed father must be
commended no later than 2 years after the birth of child by the mother
2. Proceedings to disprove the father/child relationship may be maintained at any time if court finds
that:
a. Presumed father and mom neither cohabited nor engaged in sex during the time of
conception; and
b. The presumed father never openly held the child out as his own
6) Simultaneous Death
a. Estate of Willcox
i. Facts
1. RV and J were critically injured in a car accident. All doctors agreed that RV suffered death before
J. J was announced dead at 8:23 pm and RV dead at 8:34 pm at the hospital
2. Doctor testified RVs heart and lung failure in the ambulance was irreversible
3. TC found RV dead in the ambulance while wife was undisputedly still alive and conscious.
ii. Law
1. WI 851.55(1)- If the title of property depends upon priority of death and there is no sufficient
evidence that the persons did not die simultaneously, then the property of each person shall be
disposed of as if he/she had survived
a. This is to avoid windfalls and to allow lineal inheritance
b. The purpose of statutes like this is to make sure the Ds estate passes to persons they most
likely intended them to pass to (i.e. their descendents). This prevents the Ds estate to
pass to their spouses collaterals b/c the spouse might not have any descendants.
2. Determination of Death- An individual who has sustained either irreversible cessation of
circulatory and respiratory functions OR irreversible cessation of all functions of the entire brain,

including the brain stem, is dead. A determination of death shall be made in accordance with
accepted medical standards
iii. Holding/Reasoning
1. The court found that RV died before J
2. The court was permitted to look behind the official time of death b/c the doctor was busy and
there was proof that the father had stopped functioning while in the ambulance. The doctor
testified that the wife was still talking while in the ambulance and that the only reason why the
doctor administered CPR to the father at the hospital was to preclude the possibility of erroneous
judgment of death.
b. UPC 2-104 Requirement that heir survive decedent for 120 hours
i. (a) Heir who doesnt survive D for 120 hours is rendered to have predeceased the D. If it is not established
by CCE that an individual who would otherwise be an heir survived the D by 120 hours, it is deemed that
individual failed to survive for the period of time.
ii. (b) An individual who was in gestation at the decedents death is treated as living at the decedents death if
the individual lives 120 hours after birth. (2008 Amended Version)
iii. (d) This doesnt apply to a taking of an intestate estate by the statute under 2-105
1. 2-105- If there is no taker under the provisions of this Article, the intestate estate passes to the
[state]
iv. 2-702(b)- The provisions of 2-104 apply to written instruments
1. Exception (2-702(d)
a. The instrument contains language explicitly dealing w/ simultaneous death or deaths in a
common disaster
v. NOTE- If both parties died simultaneously then divide the interest via the general rules of intestacy
7) Advancements
a. At CL a substantial gift to a child by a parent raised a presumption that the gift was an advancement of the childs
inheritance, and that the gift should be charged against the childs intestate share. This was rebuttable by the child
to show that the parent didnt intend the advancement.
b. UPC 2-109 Advancements:
i. A gift given to Ds heir is an advancement only if:
1. (a) The D declared in a contemporaneous writing or the heir acknowledged in writing that the gift
is an advancement; or
2. (b) The Ds contemporaneous writing or the heirs written acknowledgment otherwise indicates
that the gift is to be taken into account in computing the division and distribution of the Ds
intestate estate
ii. For purpose of sub (a), property advancement is valued as of the time the heir came into possession or
enjoyment of property or as of time Ds death, whichever occurs first
iii. If the recipient of the property fails to survive D, the property is not taken into account in computing the
division and distribution of the Ds intestate estate, unless the Ds contemporaneous writing provides
otherwise.
III. PROTECTION OF THE FAMILY
1) Introduction to the Elective Share
a. Difference b/t elective share and intestacy:
i. Intestate share is in regards to who benefits from a testators estate when a will is absent who a beneficiary
is (by will)
b. Elective Share
i. Elective share permits a surviving spouse to elect to take a statutory percentage of the decedents (spouses)
probate estate even if the decedent tried to limit the surviving spouse to a smaller share or forgot about
surviving spouse
ii. The spouse can waive their elective share but this requires:
iii. The spouse to manifest their intent to waive in a signed writing;
iv. After the spouse has been given fair disclosure of the application property
c. Rationale:
i. Partnership theory- A marriage is a partnership where each spouse should provide for one another because
they are economically dependent on one another.
ii. Common law- Spousal property was individually owned, unless H and W took title as tenants by the
entirety or as JT. Therefore a spouse could be disinherited and werent entitled to a statutory elective
share:

1. Common law:
a. Dower- Dower gives a widow a life interest in 1/3 of her deceased Hs land
b. Cutsey- Gives H a life interest in all of Ws land but H acquired a curtsey interest only if
children were born to the marriage.
2) Traditional Elective share statutes (ES)
a. Sullivan v. Burkin (SC MA, 1984)
i. Facts
1. H transferred in trust part of his estate before he died and W is now trying to get this transfer to be
included in the division of the Ts estate upon death.
ii. Law
1. A trust is not testamentary and invalid for failure to comply with the requirement of the statute of
wills merely b/c the settler-trustee reserves a beneficial life interest and power to revoke and
modify the trust
2. A wife is entitled to an elective statutory share of their spouses probate estate
iii. Holding
1. Court held that 1) Whether or not decedent established inter vivos trust in order to defeat his
wife's right to take her statutory share of assets placed in trust and even though he had a general
power of appointment over trust assets, wife obtained no right to share in assets of that trust when
she made her statutory election, and 2) In the future, as to any inter vivos trust created or amended
after date of this opinion, estate of decedent, for purposes of surviving spouse's statutory share,
shall include value of assets held in an inter vivos trust created by the deceased spouse as to which
the deceased spouse alone retained power during his or her life to direct disposition of those trust
assets for his or her benefit, as, for example, by exercise of a power of appointment of the
revocation of the trust
b. Modern Elective Share Statutes
i. Statues that Focus on Fraudulent Intent in re. to elective share
1. 7 Factors a court will consider when deciding whether T intended to Defraud SS:
a. Was there consideration
b. Size of the transfer in relation to spouses estate
c. Relation of transfer to time of death
d. Relations which existed b/t H and W at time of transfer
e. Source from which property came
f. Whether transfer was illusory
g. Whether the W was adequately provided for in the will
2. Tenn Code Ann 31-1-105 Fraudulent conveyance to defeat share voidable
a. Any conveyance made fraudulently to children or others, w/ intent to defeat the surviving
spouse of distribution of T (spouses) share is at the election of the surviving spouse,
includable in Ts net estate and voidable to the extent the other assets in Ts net estate are
insufficient to fund and pay the elective share amount payable to the surviving spouse.
3. RSMo. 474.150- Gifts in fraud of marital rights- Presumption:
a. Any gift made by a person, in fraud of the marital rights of surviving spouse, shall at the
election of the surviving spouse be treated as a testamentary disposition
b. Any conveyance of real estate made by a married person at any time without the joinder
or written express assent of his spouse, is deemed to be in fraud of the marital rights
c. Any conveyance of property of the spouse of a disabled person is deemed not to be in
fraud of the marital rights of the disabled person if probate division of the circuit court
authorizes the conservator of the disabled person to join in or assent to the conveyance
after finding that it is not made in fraud of the martial rights.
d. Note- The MO statute allows the spouse to seek redress from a 2 nd taker
4. UPC Augmented Estate (p. 181)
c. UPCs Augmented Estate (2-202 to 2-209) [DO THE EXAMPLES ON 188-189]
i. A spouse is entitled no matter what to elect to a statutory % of their dead spouses estate.
1. The longer the marriage, the higher the % the spouse is entitled to elect. (After 15 years = 50%)
2. Transfer made before marriage arent counted
ii. In determining whether a surviving spouse has a right to elect on must apply three basic steps:
1. Compute the value of Ts augmented estate
2. Compute the surviving spouses (SS) elective share
3. Determine whether dispositions made already to surviving spouse in combo w/ wifes own assets
are sufficient to eliminate their right to elective share

iii. Step 1: Calculating the Augmented Estate (AE) (What is included)

1. The AE includes not only Ts probate estate, but also nonprobate and gratuitous intervivos
transfers made during marriage; also:
a. Any transfers where the T retained the right to possession or income from property
b. Any transfers where T retained the right to revoke or the power to use or appoint the
principal for his own benefit
c. Any JTs w/ anyone other than the SS
d. Gifts to 3rd parties w/in 2 years of Ts death in excess of $3,00 done per year
e. Property given to the SS either intervivos or via non probate transfers (including Life
estate interests in trusts)
i. i.e Life insurance proceeds to someone other than the surviving spouse were
expressly excluded
2. Property given to the SS- Intervivos or non probate transfers given to the SS are included in the
AE to protect from taking more than fair share
3. Funding- AE is first funded by crediting any property received under will, then taken pro rata
from the other beneficiaries
4. Community property component- 1969 version limited AE to those nonprobate transfers made
during marriage

Reduced by creditor claims

Excludes:
Funeral expenses
Admin costs
Homestead & family
allowance(s)
Exempt property
Enforceable claims (1-201)

UPC Augmented Estate:

SSs own property

Non-probate
transfers to other
2-207
* Multiply % by 2
and subtract

Ts non-probate
transfers to spouse
(2-206)
This includes JTBE,
POD, TOD, & life
insurance

Ts Net Probate
Estate (2-204)

Ts non probate
transfers to others
(2-205)

Abates 2nd

Abates 1st

Excludes:
Transfers w/ consideration
Transfers w/ SS including
written joinder or consent
(2-208)

iv. Waiver of Elective Share Rights

1. Geddings v. Geddings (SC, SC, 1995)
a. Facts
i. P sought action to invoke her right to an elective share of Ds estate
ii. Appellant claims P waived her right by signing waiver
iii. TC found the waiver void b//c she didnt receive fair disclosure
iv. COA affirmed
b. Law
i. The right of election of a surviving spouse may be waived by a written contract
signed by the party waiving after fair disclosure
c. Holding
i. The waiver is void b/c Mrs. G had no knowledge of the value of the Husbands
estate
ii. Hs attorney didnt discuss it with W
iii. H was secretive about his business and W was excluded from meetings
2. UPC 2-213 Waiver of right to elect and of other rights

a.

Election may be waived wholly or partially before or after marriage by written K,

agreement, or waiver signed by surviving spouse
b. A surviving spouses waiver is invalid if:
i. He didnt execute the waiver voluntary; or
ii. Waiver was unconscionable when executed, and before execution of waiver, he
was not provided fair and reasonable disclosure of finances of D; and
iii. Did not voluntarily and expressly waive, in writing any right to disclosure of the
property or financial obligations of D; and
iv. Did not have, or reasonably couldnt have had, an adequate knowledge of the
property or financial obligations of D
d. Other protections for the surviving Spouse
i. Homestead Allowance, Exempt Property, and Family Allowance
1. Some things are beyond a creditors reach in order to:
a. Preserve the debtors basic human dignity
b. To relieve taxpayers of the obligation to provide for insolvent debtors
c. Promote efficiency- b/c items are most likely worth more to the debtor
ii. 2-402 Homestead Allowance (Has priority)
1. Ds surviving spouse is entitled to 15K HA. If no SS then minor child and depend child of D is
entitled to 15K HA divided by the number of minor/dependent children. This is exempt from all
priority over all claims. HA is in addition to any share passing to SS or minor/dependent unless
otherwise provided by intestate succession or by way of elective share.
iii. 2-403 Exempt Property
1. In addition, spouse is entitled value of the estate not exceeding 10K in excess of any security
interests therein, in house furniture, cars, furnishings, appliances, and personal effects. If no
spouse then children are entitled to jointly the same value. If there is not 10K worth, then they are
entitled to other assets of the estate to make up the 10K.
iv. UPC 2-404 Family Allowance (during administration)
1. SS and minor child are entitled to reasonable allowance in money out of estate for their
maintenance during the period of administration, which may not continue for longer than 1 year if
the estate is inadequate toe discharged allowed claims.
a. Note- Max allowance is limited to 18K for first year
e. Protection against inadvertent Disinheritance: The problem of the Pre-Marital Will
i. Omitted Spouse Presumption- Where T 1) marries after executing their will and 2) dies w/o revision or
revoking the will, this combo creates a presumption that T accidently disinherited spouse.
ii. Three different approaches to treating the problem of inadvertently leaving spouse out of will:
1. Assume T inadvertently left the spouse out of the will (marriage revokes pre-marital will)
a. Rebuttable presumption- Can be rebutted only by showing that:
i. The failure to provide for the SS was intentional and that intent appears from the
will; or
ii. T provided for the SS outside the will and intended the transfer outside of the
will in lieu of the spouse taking under the will. Evidence of this can be
established by any evidence, including oral statements by T and or the amount of
the transfer.
2. Do not assume inadvertent omission of the spouse (Only allow elective share)
3. Grant the right to receive no less than spouses intestate share of the deceased spouses estate from
that portion of Ts estate, if any, that is NOT devised to a child of T or the childs descendants if:
(UPC)
a. The child is not a child of the surviving spouse
b. The child was born before T marriage the SS
iii. Prestie v. Prestie (SC NV, 2006)- Intervivos Trust not allowed to show intent of disinheritance of omitted
spouse
1. Facts
a. H and W were married, and got divorced 2 years later.
b. H made a pour over will, which devised Hs estate to the trust.
c. Neither the will nor trust provided for W
d. H amended his trust to grant W a life estate in condo
e. H and W were married again and H passed away 9 months later
2. Law
a. NRS 144.110- Revocation of a will by marriage

i. If a person marries after making a will and the spouse survives the maker, the
will is revoked as to the spouse, unless
1. Spouse is provided for in a marital contract, or
2. Spouse is provided for in the will, or in such a way mentioned therein as
to show an intention not to make such provision, and no other evidence
to rebut the presumption of revocation shall be received

f.

3. Holding
a. The will is revoked and the SS is entitled to intestate inheritance of Ts estate
b. The statutes doesnt permit evidence of an amendment to an intervivos trust to rebut the
presumption of a wills revocation as to an unintentionally omitted spouse
c. There was no marital K and the spouse was not mentioned or provided for in Ts will nor
was there an intention shown to provide for SS in such way
iv. UPC 2-301 Entitlement of Spouse; Premarital Will
1. If Ts SS married T after T executed their will, SS is entitled to receive, as an intestate share, no
less than the value of the share of the estate they would have received if T had died intestate as to
that portion of Ts estate, if any, that neither is devised to a child of T who was born before T
married the SS and who is not a child of SS nor is devised to a descendant of such a child unless:
a. The will or other evidence suggests the will was made in contemplation of Ts marriage
to SS; or
b. The will expresses intention that it is to be effective notwithstanding any subsequent
marriage; or
c. T provided for SS by transfer outside will and intent that transfer be in lieu of a
testamentary provision is shown by Ts statements or reasonably inferred from the
amount of the transfer
Protections of Children: Pretermitted Child Statutes
i. Most states protect children against unintentional disinheritance. (i.e. pretermitted child statutes)
1. These statues fall under two categories
a. Those which protect only children born after execution of Ts will
b. Those which protect all children who have been unintentionally disinherited
ii. Estate of Glomset (SC OK, 1976)- Protect all children unintentionally disinherited
1. Summary:
a. The court looked at the will objectively and since the will was unambiguous via the 4
corners of the will then no extrinsic evidence is allowed.
b. Since the daughter wasnt mentioned in the will and there is no evidence that she wasnt
intended to be disinherit- she gets an intestate share
c. Son who is mentioned in the will gets nothing while the daughter gets an intestate share
2. Law
a. Massachusetts Law- A pretermitted heir may be excluded from benifiting from Ts will if
T intended them for be disinherited. However, if there is no intent to disinherit the heir
then the child receives an intestate share.
i. Extrinsic evidence is allowed if will is ambiguous
ii. Doesnt matter when child is born
b. Missouri Law
i. Intent to omit must be determined solely from the terms of the will (no EE)
ii. Doesnt matter when the child is born
iii. UPC 2-302 Omitted Children
1. UPC tracks basic traditional provision with a few revisions:
a. Adopting children- applies to children born or adopted after execution of the will
b. Intent to omit- must come from the will (No EE)
c. Omitted childs share- depends on whether T has other children at the time he or she
executes the will
i. No children at time will executed- Omitted child receives an intestate share,
unless T devised all or substantially all of their estate to the other parent of the
omitted child and the other parent survives T and is entitled to take, in which the
omitted child takes nothing
ii. One or more child is alive at time executed- If T had children and will devised
property to one or more of the then living children, the omitted childs share is:
1. Taken out of the portion of Ts estate being devised to the then living
children, and

2. Should equal the share or interest the other children are receiving, had T
included all omitted children with the children receiving shares and
given each an equal shares
iii. Overlooked child- Extends to child the T thought was dead
IV. EXECUTION OF WILLS
1) Will Formalities
a. UPC 2-502 Execution: Witnessed Wills; Holographic Wills
i. A will must be
1. In writing
2. Signed by the T or a Ts name by some other individual in the Ts conscious presence and by the
Ts direction; and
3. Signed by at least 2 persons, each of whom signed w/in a reasonable time after he witnessed either
the signing of the will or the Ts acknowledgment of that signature or acknowledgment of the will
a. Must be competent
b. In the conscious presence of T
b. Four functions served by the statute of wills:
i. Protective function (provides safe passage of a persons assets)
ii. Ritual function (So T realizes the seriousness and impact of the document)
iii. Evidentiary function (physical record of Ts wishes; creates piece of evidence about which to testify)
iv. Channeling function ( of Ts intent)
c. Morris v. West ( COA TX, 11th Dist. 1982)- Attesting a will
i. Court held that the will was invalid b/c it was not correctly attested w/in the conscious presence of T b/c
the witnesses signed the will in another room down a hallway, away from T and not in Ts line of sight
ii. Law
1. Conscious presence- To be in the presence of T, attestation must occur where T, unless blind, is
able to see attestation from actual position of T at the time of execution or at most from a position
slighting altered where T can make alteration if needed of will.
d. Post Mortem Witnesses
i. Comments of UPC 2-502 suggest that a witness should be allowed to sign the will after Ts death, as long
as the signing occurs within a reasonable time of Ts execution
e. The signature Requirement
i. A T must sign his will
1. A visible impression that T intended it to be his signature (Can be a proxy)
ii. The purpose of this requirement is to show finality
iii. The UPC eliminates at the end requirement for signing wills
f. The Witness Requirement (Attestation)
i. A will needs to be attested by a minimum of competent persons (most require 2)
1. Attest- Bear witness
2. Competent- qualified to testify in court concerning the material facts of execution
ii. A witness should be one that will be easy to locate and able to testify at the Ts death
iii. NY Law on Unavailable Witnesses
1. 1405 Court may dispense with testimony of witness for validating will:
a. If all witnesses are dead or incompetent or absent, the will may be admitted to probate
upon proof of the handwriting of the T and of at least one of the attesting witnesses and
such other facts as would be sufficient to prove will
iv. Purging Statutes- a statute that purges a witness of their interest in the will when they have an interest in
the will and also serve as an attesting witness
1. Common law- A will executed by an interested witness failed entirely
2. The UPC includes no disqualification for interested witnesses
v. Difference b/t attestation and self proving affidavit:
1. The attestation clause- a paragraph boilerplate that states that the will formalities have been
satisfied and provides a place for witnesses signatures
a. Attestation clauses are not required in any state but it creates a presumption that the will
was validly executed and that the events actually occurred
b. Witnesses still may have to testify at probate that the will is valid
2. Self Proving Affidavits- Attached to the will and signed by the witnesses, the testator and a notory
at the time of execution. The affidavit will get the will admitted to probate and often eliminates
the need to find witness testimony

a.

When a witness signs an attestation clause she is expressing a present intent to act as a
witness to the will.
b. When she signs a self proving affidavit, she swears that she has already performed the act
of witnessing and signing the will. (substitute for witness testimony at a hearing or
proceeding)
g. The Execution Ceremony
i. Execution ceremonies should include the following steps:
1. The will should be formal, pages numbered, attestation clause, and if authorized, a self proving
affidavit
2. Atleast 2 witnesses present. Use 3 if risk of contest. The drafter often acts as one of the witnesses
3. Gather the witnesses and everyone in one room and pick someone who will most likely outlive the
T. If Divisees are present, there is a risk of undue influence.
ii. Safekeeping
1. Main options for safekeeping
a. Give to T and make sure he keeps it safe
b. Give to nominated executor if bank is nominee
c. Deposit will at local probate court if allowed
d. Leave original with drafter/lawyer
h. Salvage Doctrines: Substantial Compliance and the UPCs Dispensing Power
i. Estate of Hall (SC MN 2002)
1. Court found the will to be valid even though there were not 2 witnesses to attest the will because
there was CCE that T intended the document to be Ts last will and testament. T had revoked all
previous wills and directed them to be destroyed.
2. Law
a. Montana Law- If 2 people do not properly witness the will then it may still be treated as
validly executed if the proponent of the document establishes by CCE that the D intended
the document to be the Ds will.
b. Common law- So long as there is substantial compliance with the formalities of a will,
the will is valid. Proponent must prove by CCE.
ii. UPC 2-503- Dispensing power
1. Although a will doesnt meet all the formal requirements the document is treated as if it had been
executed in compliance with that section if the proponent of the document establishes by CCE
that the T intended the document to constitute the Ts final will
i. Holographic Wills
i. Holographic Will- A holographic will is an un-witnessed, handwritten will that must be signed by the T.
They are recognized in half the states.
1. Reasoning for recognizing them:
a. Distrust for formalism
b. Historical memory of country life
c. Desire to carry out the wishes of ordinary persons who do not wish to hire an attorney
2. Problems with Holographic Wills
a. Disconnected handwritten pages
b. Forgery
c. Belated discovery
3. Some states require material provisions and only material portions
4. UPC requires only the material portions to be hand written
ii. Zhao v. Wong (CA COA, 1995)
1. Facts
a. Tai died and after his death, a sealed envelope was found in his office, decorated with
stickers and contained a note that read all tai kin wongs Xi hao, my best half TKW 1231-92.
2. Law
a. No particular words are required to create a holographic will but every will must contain
operative words legally sufficient to create a devise of property
3. Holding
a. The court found no valid holographic will b/c there was no evidence that T intended the
document to be testamentary (i.e. there was no language or signs that shows a distribution
of property)
b. The series of words contain no recognizable subject, no verb and no object

c.
j.

It is impossible to tell whether he meant to transfer property upon death (no give,
bequeath, will)

Statutory Wills
i. Statutory wills- A will that is created by a state statute that offers persons who do not want to hire a lawyer
to make their own will.
2) What Constitutes the will (Definition of Will itself)
a. Introduction (Doctrine I, R, IS)
i. Doctrine of integration creates a consolidated will out of several pages when the signature is not at the end
of the will
ii. Doctrine of incorporation by reference- Permits a court to give effect to a will which disposes of property
in accordance with an unattested document, so long as the document was 1) in existence at the time the
will was executed, and 2) the document is sufficiently identified in the will
1. UPC 2-510 Incorporation by Reference
iii. Doctrine of facts of independent significance- Permits a court to give effect to events which would change
the disposition of Ts estate after execution of Ts will- so long as those events have significance apart
from a change in Ts dispositive scheme.
b. Integration and Incorporation by Reference
i. Estate of Norton (SC NC, 1991)
1. Facts
a. The son of LN is seeking to probate LNs will which had 6 pages without witness
signatures and a codicil with LNs signature, notary and 2 witnesses at the end.
b. All the pages were in an envelope titled Will, of Lawrence Norton and codicil to will of
Lawrence Norton
2. Law
a. In order to validate an invalid will by incorporation by reference:
i. The defective will existed at the time the 2nd will was executed; and
ii. There is reference to the defective will that is clear and distinct that full
assurance is provided that the defective will was intended to be incorporated
3. Holding
a. The 2nd will is not valid and the doctrine of incorporation by reference doesnt apply
b. There is no reference to the 6 pages in the codicil. While they were stapled together and
in the same envelope that was labeled, there is no reference within the codicil to the other
document.
c. There was testimony that established there were numerous revoked wills prior to Ts
death.
ii. Clark v. Greenhalge (SC MA, 1991)
1. Court found that the document was incorporated by reference into Ts will because the notebook
constitutes a memorandum and the will doesnt restrict the will to only one memo and the words
in the will incorporate all memos by reference and the memo was created at the time the will was
executed.
2. Finding that testatrix's notebook met known to executor criteria set forth in will regarding
memoranda was supported by the evidence; testimony of one of testatrix' nurses established that
executor was aware of notebook and its contents, and that he made no effort to determine validity
of bequest of a painting as stated therein.
iii. UPC 2-510 Incorporation by reference
1. A writing in existence when will is executed may be incorporated by reference if language of will
manifests this intent and describes the writing sufficiently to permit its identification
iv. UPC 2-513
1. A document referenced in the will may not dispose of real property, money, or stocks and bonds
(Only Personal Property)
2. The referenced document must be signed by T and must describe the items and devisees with
reasonable certainty
3. The reference document may be referred to as one to be in existence at Ts death
4. A referenced document may be prepared before or after execution of will
c. Doctrine of facts of independent legal significance
i. Doctrine of facts of independent significance: (UPC 2-512)
1. A will may dispose of property by reference to acts and events that have significance apart from
their effect upon the disposition made by the will, whether they occur before or after execution of

the will or before/after Ts death. The execution or revocation of another persons will is such an
event
a. Applies in 2 situations:
i. When Ts will makes reference to facts or events of independent significance to
determine the beneficiaries of the will
ii. When Ts will makes reference to facts or events of independent significance to
determine the property that an ascertained beneficiary will receive
ii. In re Tiplers Will (COA TN 1998)
1. Court held that Testator's holographic codicil, directing that her assets be distributed in accordance
with her husband's will if he predeceased her, contained all material provisions in testator's
handwriting for it to be valid, and thus doctrine of facts of independent significance applied to
permit codicil to refer to husband's will, though husband's will was not yet in existence when
codicil was written and codicil did not specifically name beneficiaries under husband's will, where
evidence showed that testator was estranged from her family and wanted her estate to go to
whomever husband wished.
2. Law
a. In construing a will, the testator's intention is to be ascertained from the particular words
used in the will itself, from the context in which those words are used, and from the
general scope and purposes of the will, read in the light of the surrounding and attending
circumstances.
i. Two common law principles regarding will construction
1. Presumption against intestacy and
2. Strong weight is given to the testators intent
3) Construction Problems created by the time gap between will Execution and Death
a. Abatement
i. Abatement rules determine the order of priority among various devisee when the value of the estate is
insufficient to satisfy all of the devise in the will
ii. Abatement are rules of constructions (apply when Ts intent is not stated otherwise)
1. Three general construction problems
a. Abatement- A rule of construction that determines how the assets of an estate are split to
meet the needs of a beneficiary when there are insufficient assets in the estate
b. Ademption- Occurs when T has already given the devise to someone else, after the
execution of the will.
c. Lapse- Beneficiary dies before T
iii. In re Estate of Potter (COA FL, 4th Dist. 1985)- Abatement
1. Facts
a. T died and husband died- there was insufficient assets in the trust to pay Ps son the
equivalent sum in cash
b. The TC ordered the sale of the residence and split it equally between son and daughter
2. Law
a. General Rule- General devises abate before specific devises
i. General Devises/Legacy- One which may be satisfied out of the general assets of
the Ts estate instead of from any specific fund or thing.
ii. Specific Devises- A gift by will of property which is particularly designated and
which is to be satisfied only by the receipt of the particular property described
iii. Demonstrative devise- a devise of a particular amount of money to be drawn
from a specified fund
1. The demonstrated devise is treated as a specific devise up to the value of
the specific fund, the remainder is general
b. Order of priority for paying taxes, debts, and insufficiencies In a will
i. Property not disposed of by will
ii. Property devised to residuary devisee
iii. Property not specifically demonstratively devised (general)
iv. Property specifically or demonstratively devised
3. Holding/Reasoning
a. The TC was wrong for selling the property first because it was a specific devise and
therefore should have been abated last
b. Therefore, the general legacy (the trust) abated prior to the specific with the result being
that daughter should receive the house

iv. UPC 3-902 Distribution order in which assets appropriated; abatement

1. Order of abatement (except as to 1) Ts intent or 2) elective share)
a. Property not disposed of by will
i. Residuary devises
ii. General devises
iii. Specific devises
2. If the will has an order of abatement then that takes precedence
3. If subject of devise is sold or used incident to administration, abatement shall be apportioned from
the remaining assets
v. Exoneration of Specific Devises
1. Common law- A specific devisee is entitled to have a mortgage paid at the expense of the
residuary estate unless it appeared, from the will itself or surrounding circumstances that T
intended the devisee to take subject to a mortgage
2. Modern- Presumption of non-exoneration- Specific devisee takes subject to a mortgage lien unless
Ts contrary intent appears from the will or surrounding circumstances
a. UPC 2-608 Nonexoneration
i. A specific devise passes subject to any mortgage existing at time of death,
without right of exoneration, regardless of a general directive in the will to pay
debts
vi. Apportionment of Taxes
1. Common law- Tax claims were generally treated as claims against the estate unless the will
provided otherwise
a. Recipients generally only had to pay inheritance tax and not estate tax
2. Modern UPC Approach- Apportionment of tax liability is directed among estate beneficiaries (i.e.
each beneficiary would bear a proportionate share of estate tax liability.) The beneficiaries would
have to pay both inheritance and estate tax unless T states otherwise
a. UPC 3-916(b)
i. Tax is apportioned according to the proportion of value of interests of persons in
the estate. If method for tax is differently described in will, then that governs.
b. Ademption
i. Ademption- A specific devisee is entitled to nothing if the specifically devised property is not in Ts estate
at Ts death (i.e. adeemed)
1. Rationale-A devise by T is for a specific piece of property and not its value
ii. McGee v. McGee (SC RI, 1980)
1. Court found the specific gift to the grand kids to be adeemed b/c the flower bonds substantially
changed the money from the bank account to the flower bonds and was untraceable
2. Law
a. Ademption by extinction- A specific devise may be adeemed- fail completely to pass as
prescribed in the Ts will- when the particular article devised no longer exists as part of
the Ts estate at the moment of death b/c of prior
i. consumption,
ii. loss, destruction,
iii. substantial change, sale,
iv. or other alienation subsequent to execution of will
b. In Specie- Test for determining whether specific legacy has been adeemed is in specie
test, which focuses on questions whether the gift was specific legacy, and, if it was,
whether it is found in estate at time of testator's death.
iii. Two Theories of Ademption
1. Identity Theory- Ademption based on the classification of the devise. If the gift is a specific
devise then it will be adeemed if it is not in the estate upon division (In specie)
a. Problem
i. T will end up claiming everything is a general gift even though it is not and
abatement first takes from general devises
2. Intent Theory- Ademption based on whether the T intended to make an Ademption (i.e. whether T
would have wanted it adeemed)
a. Problem
i. The intent of the T can be very hard to determine
iv. UPC 2-606 Nonademption of Specific devises unpaid proceeds of sale
1. A specific devisee has a right to the specific devised property at Ts death; and

a.

c.

Any balance of purchase price, & any security agreement owing from a purchaser to the
T at death by reason of sale of property;
b. Condemnation awards
c. Proceeds unpaid at death on fire or casualty insurance
d. Property owned by T at death acquired as a result of foreclosure
e. Rea or tangible personal property owned by T at death which T acquired as replacement
for specifically devised real/tangible property
2. Where the loss of the specifically devised property wasnt the result of any voluntary act by T, the
specific devisee is entitled to any unpaid condemnation or proceeds.
a. Rationale- If T took no voluntary act, and may not have had time to adjust the will to
reflect the change in property holdings, then the devisees interest is not adeemed
3. If person with DPOA or conservatorship sells the devisees property then the devisee is entitled to
a pecuniary devise equal to the net sale price of the agents doing.
v. Changes in form of Securities
1. UPC 2-605 Increase in Securities, Accession
a. If T executes a will that devises securities and T then owned securities that met the
description in the will, the device includes additional securities owned by T at death to
the extent the additional securities were acquired by the T after the will was executed as a
result of Ts ownership of the described securities and are securities of any of the
following types:
i. Securities of the same stock acquired by reason of action initiated by the
company, related or acquiring organization, excluding any required by exercise
of purchase options
ii. securities of another stock acquired as result of a merger, consolidation,
reorganization
iii. Securities of same stock acquired as a result of reinvestment
iv. Distributions in cash before death with respect to a described security are not
part of the devise
vi. Ademption by satisfaction v. Ademption by extinction
1. Ademption by satisfaction- A specific beneficiary is adeemed if the T gives the specific
beneficiary the specific devise during Ts lifetime
a. UPC 2-609 Ademption by Satisfaction
i. Reverses presumption- inter vivos gift presumed not to be in satisfaction absent a
writing expressing such intent. Writing can be the will, writing at time of gift,
and or writing created by the donee at any time.
2. Ademption by extinction
a. A gift is adeemed when the gift is given or sold to someone else other than the named
devisee
b. This is different than satisfaction b/c satisfaction is only when the devise is given to the
devisee in satisfaction of the devise
3. Advancement is different than Ademption because an advancement is subtracted from the
devisees entitled benefit (the valuation for advancement and ademptions are different also)
Lapse
i. Intro:
1. Lapse- Lapse occurs when a beneficiary dies before the T dies thereby prohibiting the devise of
the property
2. Antilapse statute- A statute that prevent the lapsing of a beneficiaries gift when the beneficiary
predeceases the T. The purpose of these statutes are to allow Ts intent to benefit the descendants
of a beneficiary
a. The anti-lapse statutes usually apply to close family members because there is a strong
policy to benefit the descendants of ones family
b. Anti-lapse statutes preserve the devise only for the issue of the deceased devisee and not
for the beneficiaries in the predeceased beneficiarys will
3. Common law (Majority)- Under the CL, if a beneficiary dies before T then T would not want the
property to go to the beneficiarys descendants (i.e. A predecessors descendants do not receive
the benefit)
ii. Consequences of lapse
1. Specific and general devises- If specific/general devise to an individual beneficiary lapses the
devised property generally passes into the residue of Ts estate.

2. Residuary devises- If T devises the residue to a single devisee, and the devise lapses, the residue
passes by intestate succession.
a. UPC Majority- If 1 residual beneficiarys interest lapses then the remainder of the
residuary devisees get it unless all the residuary devisees die before T (UPC)
b. Minority- If T devises the residue to more than 1 devisee, and the devise lapses as to one
devisee, minority of courts hold that the fraction that would have passed to the deceased
devisee would pass instead by intestate succession.
iii. Representative Antilapse statutes (ALS)
1. New Hampshire ALS (NH)
a. The heirs of a deceased devisee before T shall take in the same manner as the devisee
would if he had survived (i.e.
2. New York ALS (NY)
a. Unless stated otherwise
i. Instruments executed on or after 9/1/1992. If will gives to issue or brother/sister
of T and they die before T then it vests in their surviving issue
ii. This applies to disposition made to issue, brothers or sisters AS A CLASS as if the
disposition were made to the beneficiaries by their individual names except no
benefit shall go to issue that dies before the will executed.
3. Virginia ALS (VA)
a. Unless contrary intention:
i. If a devisee (including class gift) is a 1) grandparent or descendant of a
grandparent of the T and 2) dead at the time of execution of the will or dead at
time of Ts death, the children and descendants of deceased children of deceased
devisee who survive the T take in the place of the deceased devisee.
ii. If takers are all the same degree, they take equally. However, if takers are
unequal degree, then those more remote take by representation (Based on 1969
UPC)
iv. Class Gifts
1. Common law- if a member of a class predeceased T, that members devise lapsed, and the
remaining members of the class divided the lapsed devise
v. Void Devises
1. Common law- A lapsed devise was a devise to a person who died between the time of will
execution and time of Ts death. If person died before execution then devise was void.
2. UPC- (modern) applies simultaneous death statues b/c T intended for the beneficiary to reap the
benefit of the devise
vi. Estate of Rehwinkel (COA WA, 1993)- When a Will overrides an antilapse statute
1. Facts
a. 1969 R executed his will. R gave to those of the following who are living at the time of
my death
b. R died in 1991 and Helene died 1 month earlier. Helen was given a gift in the will.
c. Hs son F filed a petition declaring him an heir of R, claiming T didnt intend to
circumvent the anti-lapse statute
2. Law
a. A T is presumed to be aware of the anti lapse statute; and presumed they intended the
statute to apply unless contrary intent is clearly shown
3. Holding/Reasoning
a. The court found that T intended to circumvent that anti lapse statute and that in order for
F to inherit, H had to be alive at the time of Ts death
b. T manifested a clear intent to preclude the anti lapse statute
c. The gift to Fs mom lapsed
vii. Simultaneous death and antilapse statutes
1. UPC 2-702 Simultaneous Death
a. An individual who isnt established by CCE to have survived the T by 120 hours is
deemed to have predeceased the T unless the will says otherwise
4) Construction Problems more Generally
a. Reading the will as a whole
i. Generally courts will look at the 4 corners and extrinsic evidence to find Ts intent when there are
ambiguous words in a will
1. When ambiguous on its face, courts will look at the rest of the will

ii. Matter of Marine Midland Bank N.A.(COA NY, 1989)- Whole or Part?
1. Summary
a. T had a will that gave of estate to brothers and if one predeceases T then the rest to
children
b. A child of one of the brothers wanted to benefit from the will
c. The court held that they couldnt inherit b/c child means immediate offspring and doesnt
include grandchildren
d. The majority looked at the explicit language of only provision C of the will
2. Law
a. Unless stated otherwise, a court will construe the meaning of a word with its consistent
plain meaning
b. Courts strive to effectuate Ts intent
3. Dissent
a. Looked at Par 5 and 6 instead of just provision C.
b. This defined 4 corners differently (as a whole)
b. Ambiguity- Using Extrinsic Evidence
i. General problems with allowing EE:
1. T is dead and cannot say otherwise
2. EE is easily fabricated
3. EE is not relevant b/c Ts intent at time of execution is the only thing that matters
4. EE is Costly/timely
ii. Estate of Carroll (COA MO, 1989)
1. Facts: Archie and Dortha were married but had no children. They each wrote their

wills to benefit my nieces and nephews. When Archie died, Dorthas nieces and
nephews alleged that Archie meant to include them
2. Rule: Courts will construe the language used in a will in its legal, technical, and
ordinary meaning. When the language is clear and unambiguous, extrinsic evidence
will not be admissible
3. Facts
a.

c.

As will gave to D and in the event D predeceased A, on As death his residuary estate be
liquidated and proceeds be equally divided between my nieces and nephews that are
living as of the date of my death
b. Ds will contained similar provisions and provided that if A predeceased her, the
residuary was to go to my nieces and nephews that are living as of the date of my death
c. Ds brother and sister argue that As will includes nieces and nephews of D and not just
As nieces and nephews (i.e. my means both sides)
4. Law
a. Words with a well known technical meaning should be construed according to their
technical meaning unless a contrary meaning clearly appears from the context of the will
5. Holding/Reasoning
a. Court held Ds nieces and nephews could not benefit b/c the language was unambiguous
and denied inheritance to Ds kids
b. There is nothing in the will to the contrary meaning. my has a plain meaning
c. EE was not allowed there was no facial ambiguity
iii. Mahoney v. Grainger- No extrinsic evidence unless the terms of the will are unclear w/in the 4 corners of
the will
iv. Rest. 3rd of Property- Even though something is perfectly unambiguous, extrinsic evidence is allowed to
construe the will. (Ts intent is key)
1. In seeking intent, all relevant evidence (direct or circumstantial or relevant extrinsic evidence)
may be considered.
2. Extrinsic evidence is allowed so long as it doesnt go against the plain meaning of the text.
3. Ambiguities should be resolved by construing the text of the donative document in accordance
with the donors intent, to the extent the donors intent is established by a preponderance of the
evidence
Testators Circumstances and Behavior- Using Extrinsic Evidence
i. Latent- An ambiguity that is not apparent from the face of the will and is only apparent with extrinsic
evidence. Extrinsic evidence is allowed to create and cure the ambiguity

1. A latent ambiguity exists where language of a will, though clear on its face, is susceptible of more
than 1 meaning, when applied to the extrinsic facts to which it refers
a. 2 things/person matching the will perfectly or
b. 2 or more persons answer the will imperfectly
ii. Patent- An ambiguity apparent on the face of the document. No EE is allowed
1. Court doesnt want to add text to a will
2. The Restatement treats patent and latent defects the same and allows EE in both
iii. Estate of Gibbs (SC WIS. 1961)
1. Ts will named Robert j Krause as beneficiary of Ts will. Robert w Krause claims it was
supposed to mean him. Court allowed extrinsic evidence because there was a latent ambiguity b/c
it didnt appear on the face of the document which person was to benefit.
d. Testators unattested Statements- Using Extrinsic Evidence
i. Britt v. UpChurch (SC NC, 1990)- What is residence?
1. Summary
a. Court held that that both properties owned by T were considered Ts residence and
therefore was allowed the devise of both properties.
b. However, the court didnt allow EE in the form of an affidavit of an attorney recollecting
what he thought T told him because it was used to show T intended for something to go
to someone. This would allow fraud.
c. Court allowed evidence that T used both lots, T landscaped both lots, built a tool shed and
sidelwalk, and housed a dog on the adjoining lot because it didnt go towards Ts direct
intent.
2. Law
a. Declarations of the testator are admissible, but testator's declarations which cast light
upon the testator's usage of particular terms in the will are not
b. EE is not allowed to alter the construction of a will. Surrounding circumstances as well as
declaration of T are relevant to the inquiry.
i. Surrounding circumstances do not refer to Ts intent, rather the facts of which T
had knowledge when he made his will
e. Correcting mistakes
i. Gifford v. Dyer (SC RI, 1852)
1. Summary
a. T omitted her son from her will because she was mistaken that her son was dead.
b. Court held that the will was valid b/c T would have made the same will even if she had
known her son was living.
2. Law
a. The mistake must appear on the face of the will, and it must also appear what would have
been the will of the testatrix but for the mistake
b. Thus, where the testator revokes a legacy, upon the mistaken supposition that the legatee
is dead, and this appears on the face of the instrument of revocation. Such revocation is
held void
3. Note- Courts are reluctant to honor mistake in the inducement claims b/c every T is under some
form of misimpressions at time of creating will (i.e. T doesnt really know how much other people
own so that they can plan their will accordingly)
ii. Kupp v. Dist. of Columbia (DCO COA, 1990)
1. Summary
a. Court held that where Ts will was absent a name for devise in the 8th par (no where in par
8 is there a name for residual legatee), the court will not insert a name into its place even
though there is an error in the will that was done by an attorney.
b. The court denied the lawyers affidavits to the court showing the prior drafts of the will
and how he mistakenly forgot to add Knupp as the intended legatee
2. Law
a. In order to allow extrinsic evidence:
i. There must be some ambiguity in the will; and
ii. The extrinsic evidence can be utilized only for the purpose of interpreting
something actually written in the will and never to add provisions to the will
5) Revocation of Wills
a. Three ways to revoke a will (Can be partial or whole)
i. By physical act to the original will- either to the paper the will is written on or to the writing on the paper

ii. By subsequent instrument- Express clause of revocation or inconsistent provisions

iii. By operation of law due to a change in the circumstances of Testator (i.e. marriage)
b. UPC 2-507 Revocation by writing or by Act
i. Will can be revoked by subsequent will or part or by inconsistency; or
ii. By performing a revocatory act on the will if performed w/ intent and purpose to revoke
1. Tearing, canceling, obliterating, destroying part (doesnt matter if it touched any words)
iii. If subsequent will doesnt expressly revoke previous, the subsequent will wholly revokes previous will by
inconsistency, if T intended the subsequent will to replace rather than supplement previous
iv. T is presumed to have intended subsequent will to replace rather than supplement previous will if subseq
will makes complete disposition.
1. If there is CCE otherwise then previous is not revoked
v. T is presumed to have intended a subseq will to supplement (i.e. codicil) a will if subseq will doesnt make
complete disposition of estate.
1. The subseq will only revokes previous will to the extent subseq will is inconsistent unless CCE
otherwise
c. Revocation by Physical Act
i. First Interstate Bank of OR v. Henson-Hammer (COA OR, 1989)
1. Summarya. Court found there was CCE to rebut the presumption that the will was revoked due to the
will being missing because the daughter had opportunity to hide the will and daughter
had a motive to circumvent the will
2. Law
a. There is a presumption that a missing will was destroyed by T w/ the intention that it be
revoked.
b. This presumption may be overcome by clear and convincing evidence.
ii. Proof of lost wills- If the presumption of revocation is rebutted, the will still must be proven as to the
contents of the missing, but not revoked will. (i.e. use a photocopy or testimony)
1. NY 1407 Proof of lost and destroyed will
a. Must be established it has not been revoked, and
b. Execution of will is proved in manner required for probate of an existing will; and
c. All of the provisions of the will are clearly and distinctly proved by each of at least 2
credible witnesses, or by a copy or draft of the will proved to be true and complete
iii. Physical acts performed on copies of the will
1. Acts done to a copy of a will are irrelevant
2. Restatement- If T mistakes a copy for the original will, and Ts intent to revoke the will can be
proved by CCE, the failure to revoke the original can be excused and the revocation valid.
iv. Loss or destruction of duplicate originals1. If the lost duplicate original was the only 1 in the Ts custody, then it is presumed revoked unless
rebutted. If both in custody of T and 1 was lost then it doesnt presume revocation. (both must
also be lost)
v. Proxy Revocation by physical act
1. A T may revoke a will by proxy but T must intend the act to be done and be in the presence and
the proxy must be by direction of the T
d. Revocation by Subsequent Written Instrument
i. Wolfes Will (SC NC, 1923)
1. Summary
a. The court held that there is a GIMF at to whether all my effects means personal and
real property and is therefore inconsistent with the 1st will thereby revoking it.
b. Court allowed a new trial. The court is trying to prevent the property from escheating.
2. Law
a. The mere fact a 2nd will is made doesnt create a presumption that it revokes or is
inconsistent with the prior
e. Revocation by Operation of law- Divorce
i. UPC (1990) 1-201- Definition of Governing Instrument- Includes deed, will, trust, insurance, POD, and
pensions.
ii. UPC 2-804 Revocation of probate/non-probate transfers by divorce.
1. Except as provided by express terms of governing instrument- a court order, contract, divorce,
annulment,

f.

2. Revokes any revocable disposition of property made by a divorced individual to his/her former
spouse in a governing instrument and any disposition in a governing instrument to a relative of the
divorced individuals former spouse; and
3. Revokes nomination in a governing instrument, nominating a divorced individuals former spouse
or relative of divorced persons former spouse to serve in any fiduciary or representative capacity
4. Provisions in governing instrument are given effect as if the former spouse and relatives of former
spouse disclaimed all provisions revoked by this section or revoked nomination as if former
spouse and relatives died immediately before divorce
5. This is revived by divorced persons remarriage to former spouse or by a nullification of divorce or
annulment
Reviving Old Wills
i. UPC 2-509 Revival of Revoked Will
1. If 2nd will revoked 1st will and 2nd will is then revoked, the 1st will remains revoked unless revived.
a. Revival occurs if it is evident from circ. of revocation of 2nd will or from Ts statements
that T intended 1st will to take effect.
nd
2. If 2 will partially revoked 1st will and is then 2nd will is revoked, revoked part of the 1st is revived
unless T intends otherwise
3. If 2nd will partially or wholly revoked 1st will and then 2nd will is revoked by another will, the 1st
will remains revoked in whole or I part unless T intends otherwise
ii. Dependent Relative Revocation- DRR & Revocation of Codicils
1. Carter v. First Meth. Church of Albany (SC GA, 1980)
a. The court held that:
i. The fact that 1963 will with pencil lines drawn by T through property disposition
provision was folded together with 1978 instrument, purporting to establish
different scheme of property distribution, was some evidence tending to establish
that cancellation and making of new will were parts of one scheme, and
revocation of old will was so related to making of new will as to be dependent
upon it
ii. Evidence was sufficient to rebut statutory presumption of revocation and to give
rise to presumption in favor of propounder of will under doctrine of dependent
relative revocation, which caveator of will failed to rebut.
2. Law
a. Where a will has been canceled or obliterated in a material part, a presumption of
revocation arises, the burden is on the propounder to show that no revocation was
intended
b. Dependent Relative Revocation (Conditional Revocation) [DRR]
i. If it is clear that the cancellation and the making of the new will were parts of
one scheme and the revocation of the old will was so related to the making of the
new as to be dependent upon it, then if the new will be not made, or if made is
invalid, the old will, though canceled, should be given effect, if its contents can
be ascertained in any legal way
3. 4.3 Restatement 3rd of Property- Ineffective Revocation (Didnt really revoke)- Looks more at
subjective intent
a. A partial or complete revocation is ineffective if:
b. T made revocation in connection with an attempt to achieve an objective that is against
the law; or
c. T made a revocation under a false assumption of law, or false belief, that is in the revoked
instrument or established by CCE

Hands on Will Exercises

Interviewing Skills
Sternlight & Robbennolt, Good Lawyers Should Be Good Psychologists,
23 Ohio St. J. Disp. Res. 437 (2008)
Suggested: Solomon, Helping Clients Deal With Some of the Emotional and
Psychologist Aspects of Estate Planning, Probate and Property (2004)
Drafting a Will

Collin, A Post-Interview Estate Planning Checklist, Probate and Property (1988)

Barkhorn, Basic Will Drafting, PLI Estate Planning and Administration (2002)
V. CONTESTING THE WILL
1) Testator must have Testamentary Capacity:
a. Requirements- testator must be at least 18 old and of sound mind
i. Sound mind- requires that the testator have the ability to know
1. The nature and extent of his property,
2. The natural objects of his bounty,
3. The nature of the testamentary act he is performing, and
4. How all these relate together to constitute an orderly plan of disposing of his property.
ii. Capacity is determined at only applicable at the time T executed their will
iii. Lucid Interval- A period during which T did have sufficient understanding to make a will
b. Barnes v. Marshall (MO SC, 1971)- Case about lay witnesses testimony of testators competency.
i. Court held lay witness, who had known testator for about 35 years and had seen and visited with T on an
average of from 2 to 4 times a year, was permitted to testify as to Ts capacity
ii. Rule
1. In order for a lay witness to express an opinion as to whether T was competent, the lay witness
must first establish sufficient facts to back up their opinion
c. Wilson v. Lane (SC GA, 2005)- Eccentric old womans will challenged
i. Court held that evidence was insufficient to show T lacked capacity b/c mere feableness and old age is not
enough.
ii. Evidence that testator was eccentric, aged, and acted irrationally at times, by itself, did not establish that
testator lacked testamentary capacity to make decided, rational disposition of property.
iii. Rule
1. A person is mentally capable to make a will if she has sufficient intellect to enable her to have a
decided and rational desire as to the disposition of their property.
2. The law does not withhold from the aged, the feeble, the weak-minded, the capricious, the
notionate, the right to make a will, provided such person has a decided and rational desire as the
disposition of his property
3. Eccentric habits and absurd beliefs do not establish testamentary incapacity.
2) Testamentary Capacity
a. Justifications for Capacity Requirement
i. Reflecting Ts true intent
ii. Family members should be entitled to inheritance
b. Standing to contest
i. People with a financial interest in invalidating the last will have standing to contest the will
ii. Jurisdictions divide about the right of an admin or executor under a prior will to contest a subsequent will
(trustees under prior generally have a financial interest as the title holders)
1. Creditors generally have no standing to contest
2. Courts split as to whether the creditors of an heir or of the beneficiary of a prior will have a
standing to contest
c. Proving incapacity
i. The role of jury
1. Capacity is a question of fact- juries decide
2. Ways to challenge jury verdict
a. No reasonable jury could find for what the jury found; or
b. The jury instructions were wrong and constituted harmful error
d. Burden of proof to show Ts capacity
i. Split as to who bears the burden of proof to show capacity of T
ii. UPC 3-407- provides that contestants have both the initial burden of proof and the ultimate burden of
persuasion on issues of incapacity
iii. A self proving affidavit creates a presumption of testamentary capacity
e. Lay witnesses and Experts opinion on capacity
i. The lay witness may not state a conclusion about Ts capacity without relating the facts on which
conclusion is based
ii. Medical testimony- These witnesses can either have examined or not examined the T

1. Brunner v. Brown- Held that expert who didnt examine T was entitled to state opinions based on
interviews but not to testify about the contents of interview b/c statements made by parties
interviewed were hearsay
2. Estate of Van Patten- Held that evidence of expert who didnt examine D while D was alive, was
insufficient to create a triable issue of fact regarding Ts capacity
f. Insane Delusion Rule
i. Insane Delusion- A belief in things impossible or things possible but so improbable under the
circumstances that no man of sound mind could give them credence
1. Spiritual beliefs alone do not constitute insane delusions
2. So long as there is any reasonable rationale as to the Ts suspicious alleged delusion, Ts Will will
be upheld
3. If the will is the product of an insane delusion then it is invalid
a. Elements:
i. T was under an insane delusion and
ii. Ts will was a consequence of the insane delusions
4. Note- The belief that their kid were sired by someone else is a staple of insane delusion. Also, the
belief that Ts spouse has been unfaithful or T thinks relatives are going to kill her or put her in a
home is typical insane delusions.
ii. Dew v. Clark- Monomial Insane Delusion
1. Court found Ts will void for insane delusion b/c T thought nice daughter was the devil incarnate
for causing her mom to die during child birth.
iii. Dougherty v. Rubenstein (COA, MD, 2007)- No insane delusion
1. Court held the will valid and that Ts will was not the product of insane delusion b/c T had a
rational reason for thinking his son betrayed him and that Ts belief that son stole from T was only
a generalization of distrust for son. T had a reason to disinherit son b/c son would not let T out a
nursing home that was extremely abusive to him.
iv. Attorney has no duty to determine testamentary capacity of client
1. Gonsalves v. Superior Court (COA, 1993)- Lawyer client relationship re. Incapacity
a. Court held that an attorney who fails to investigate a clients Testamentary capacity does
NOT incur liability to a person disinherited by the will drawn by the attorney. To allow
this would be an intolerable burden on attorneys. This would also deny many persons the
opportunity to make their wills b/c lawyers would say no to them. The disinherited person
can still contest the will in probate.
b. Law
i. A lawyer who fails to investigate the testamentary capacity of his client IS NOT
liable in tort to a former beneficiary disinherited by the will.
3) Undue Influence
a. Undue influence- When the written will doesnt reflect Ts true intent b/c of the successful effort of a beneficiary to
substitute his own wishes for Ts due to their influence
i. Undue influence is presumed where there is a:
1. Confidential relationship; and
2. There are suspicious circumstances
b. General Elements to Show Undue Influence:
i. Susceptibility- was the testator susceptible to the undue influence?
ii. Opportunity- did the D have the opportunity to exert undue influence?
iii. Motive- did the D have a motive for exerting the undue influence?
iv. Causation- Did the undue influence cause the testator to dispose of his or her property in a way that the
testator would not have otherwise.
1. Burden of proof- under this approach, the party challenging the wills bears the burden of proof.
c. Burden shifting approach
i. Rule presumption of undue influence arises if:
1. There was a confidential relationship b/t the D and the testator
2. The D receives the bulk of the estate
3. The testator was of weakened intellect
a. Burden of proof- if requirements are satisfied, presumption of undue influence arises and
the burden shifts to the D to rebut the presumption.
ii. Haynes v. First national State bank of NJ (SC of NJ 1981)
1. Summary:

a. Court found there was CCE that T was under undue influence at the time of execution b/c
the attorney who advised Ts will also was attorney for the principal beneficiary. T said
she was under pressure to change the will and that Ts will suddenly changed after
moving in with Ts daughter
2. Law
a. It is presumed the T was of sound mind and competent when executed the will
b. Undue influence- mental, moral, or physical exertion which has destroyed the free agency
of a T by preventing the T from following the dictates of his own mind and will and
accepting instead the domination of another
c. To raise a presumption of undue influence that must be rebutted by the proponent of a
will (via a preponderance of evidence), there must be:
i. A confidential relationship b/t T and a beneficiary
ii. Presence of suspicious circumstances
d. The court here assigns clear and convincing instead of POE
iii. Will of Moses (SC of MI, 1969)
1. Summary
a. Court held that Ts will is void due to undue influence b.c Ts will was made by a lawyer
who was friends with Ts attorney and who received detailed instructions on how to draft
Ts will
b. Physical absence of lawyer during the will writing is not enough to rebut the presumption
of undue influence
2. Law
a. There is undue influence where:
i. There is a confidential relationship; and
ii. Presence of suspicious circumstances, which in combination with such a
confidential relationship, shifts the burden of proof to the proponent.
iv. Confidential relationships involving non-lawyers1. Priest Penitent
2. Lawyer-Client
3. Doctor-Patient
4. Guardian-Ward
5. A Relationship of Trust
4) Frauda. Fraud- Occurs where someone intentionally misrepresents something to the testator, with intent of influencing the
testators testamentary scheme, and the misrepresentation causes the testator to dispose of his or her property in a
way that he or she would not have otherwise.
i. Elements
1. False statements
2. Known to be false by the party who makes them
3. Material
4. Made with the intention of deceiving testator
5. Deceive testator
6. Cause testator to act in reliance upon such statements
b. Fraud in inducement- occurs when a person misrepresents a fact to the testator for the purpose of induction the
testator to execute a will with certain provisions, or for the purpose of inducing the testator to revoke it. Key is
misrepresentation does not go to the terms of the will, induces to dispose differently.
c. Fraud in execution- occurs when a person misrepresents the nature of a document the testator is signing.
5) Tortious interference with inheritance - Where a third party has committed misconduct in the testamentary process, those
who would have taken but for the misconduct can also sue the third party for tortuous interference with an expectancy.
a. The elements of a cause of action are:
i. The existence of an expectancy
ii. A reasonable certainty that the expectancy would have been realized but for the interference
iii. Intentional interference with that expectancy
iv. Tortuous conduct involved with interference, such as fraud, duress, or undue influence
v. Damage
b. Peralta v. Peralta (COA, NM, 2005)- Tortious interference w/ inheritance
i. Court held that there was a genuine issue of material fact as to whether brother and sister unduly
influenced mother precluded summary judgment.
ii. Brothers and sisters of T had lived with T and T suddenly changed her will

c.

Constructive trust
i. Defined- When property has been acquired in such circumstances that the holder of the legal title may not
in good conscience retain the beneficial interest (b/c it was due to fraud), equity converts him into a
trustee.
1. i.e. The court cant reform the will but can make a constructive trust when there is fraud, thereby
taking away the interest from the beneficiary who did the defrauding to acquire it
d. Fraud and non-disclosure
i. Non-disclosure doesnt usually amount to fraud. However, non-disclosure could amount to fraud if the
non-disclosing party owed a duty to the T
ii. In Rood v. Newberg- the court found that the sisters non-disclosure to her mom about moms mistaken
allegations, invalidated the new will giving all of moms assets to sister of the son, instead of the son.
e. Anna Nicole Smith- Tortious interference claim
i. ANS married a billionaire oil tycoon at the age of 26 while M was 89. There was a prenupt that wasnt
signed
ii. M promised to leave ANS half of what he had- but the son of M conspired and fired the attorney who was
drafting the trusts for ANS in order to prevent the gift to ANS
iii. Pierce (son of M) filed a defamation claim as a creditor against ANSs estate during bankruptcy. ANS
counterclaimed for tortuous interference with gift
iv. ANS won in bankruptcy 500 mil against Pierce
v. 9th circuit reversed the bankruptcy court holding that the probate exception to the bankruptcy code
deprived the bankruptcy court jurisdiction
vi. SC of US reversed the 9th cir.- P died 1 month later (in favor of ANS)
vii. ANS gave birth to a daughter in 2006 and ANSs son died unexpectedly (from prior marriage)
VI. TRUSTS
1) Creation of Trusts
a. Trust- A is an entity in which ownership is divided between the trustee (who holds legal title to the trust property)
and the beneficiaries (hold beneficial title). The trustee has the right to manage the property for the beneficiaries
interest
b. Terminology
i. Settlor- party who creates trust
ii. Trustee- party whom the settlor transfers the property; trustee holds legal title to the trust property and
manages the property for the duration of the trust. Trust will not fail for want of trustee, court can appoint.
Trustee can not be sole beneficiary and sole trustee.
iii. Beneficiaries- parties who hold the equitable interest in the trust, that parties to whom the trustee owes a
fiduciary duty.
iv. Declaration of trust- if the settlor is also the trustee, the expression of intent to create the trust, along with
its terms
v. Deed of trust- if someone other than the settlor is the trustee, the expression of intent to create the trust
along with the terms
vi. Res/corpus- trust property
vii. Inter vivos- if trust is created while settlor is alive
viii. Testamentary trust- if trust is created when settlor dies
c. Why life tenancies are bad
i. A life estate isnt good b/c the person cannot sell it for money if the land doesnt create wealth absent
consent of remainder men
ii. The life tenants management responsibility are often murky (i.e. sue for waste)
d. Uniform trust code (UTC)
i. UTC has been adopted in 18 states including MO
2) Creation Of Trusts
a. Requirements of a trust (PAT)
i. Property (P)-the property must be delivered to the trustee. Where the property is delivered to the trustee
with the intent that the gift be a trust, equitable title is automatically transferred to the beneficiaries by
operation of law.
ii. Ascertainable beneficiaries (A)- the beneficiaries must be ascertainable so the court knows who has
standing to enforce (1) the terms of the trust, and (2) the fiduciary duties the trustee owes the beneficiaries.
1. No trust exists in absence of a beneficiary
2. The beneficiary cannot be an indefinite class (i.e. to my friends)
iii. Trustee (T) (Can be Court Appointed)

1. A trust will not fail for want of a trustee

a. A vacancy in office of trustee might arise b/c
i. the trust instrument might not name one
ii. The trustee named might fail to qualify (i.e. refusal, death, refusal by court,
incompetent, resign)
iii. Trustee might lack legal capacity
b. When this happens the court will appoint a trustee
2. If a trust imposes no active duties on the trustee, the trust is invalid as a passive trust, and the
beneficiary acquires legal and equitable title
iv. Note- Professor Strong says you only need 3 things but keep in mind you also need:
1. Intent (I)- to make a gift in trust.
2. Writing (W)- Not really trust requirement but required by the Statute of frauds
a. If the trust involves real property, the statute of frauds requires that the terms be in
writing.
b. if the trust is a testamentary trust, the wills act requires that the terms of the trust be in
writing
v. Sample revocable trust p. 539
b. Merger doctrine
i. Merger Doctrine- If someone dies in the trust thereby making another person the sole beneficiary and
trustee, then the legal and equitable interests merge and the trust terminates- the person would hold free of
any trust
1. Summary
a. A Settlor may name several people as trustee and beneficiaries at the same time
b. BUT- A settler may not name the SAME PERSON to serve as sole trustee and sole
beneficiary
c. Ascertainable beneficiaries
i. Moss v. Axford (SC MI, 1929)- Beneficiary is person who gave best care to T
1. Court held that Ts will created a testamentary trust even though the language of the will said to
give the residue to a person Mr. Axford chooses who has given me the best care in my old age
because this statement was definite enough to appoint a beneficiary. The trustee didnt have an
unrestrained duty.
2. Law
a. An express trust may be created for the benefit of any person when the trust is definite
enough on its face
b. It isnt necessary that a beneficiary be designated by name or by a description which
makes the ID automatic
c. A trust just must be sufficiently clear to enable the court by extrinsic evidence to identify
the beneficiary
d. A trust isnt invalidated by the fact that the trustee is vested with discretion
ii. Uniform Trust Code (UTC) 409 Dont need to identify beneficiaries & enforced 21 years
1. A Trust may be created for a noncharitable purpose w/o definite ascertainable beneficiaries. But
may not be enforced for over 21 yrs.
2. A trust under this section may be enforced by a person appointed in the terms of the trust or by
court
3. Property of trust under this section may be applied only to its intended use, except to extent court
determines the value of trust exceeds the amount required for intended use.
4. Property not required for its intended use must be distributed to settlor (S) or to successors if S is
dead
iii. Rest. 3rd of Trusts 47 Trusts for noncharitable purposes- Power but not duty to enforce
1. If S transfers property in trust for indefinite purpose, not charitiable, the transferee holds the
property as trustee w/ power but not duty to distribute the property for such purposes.
2. If S transfers property in trust for specific noncharitable purpose and there is no defined
beneficiary, the transferee holds the property as trustee w/ power exercisable for a reasonable
period of time (not to exceed 21 yrs) to apply property to designated purpose
3. If the power is personal and not exercised, or property exceeds the needs for purpose, trustee
holds property and the excess for reversionary beneficiaries implied in law
iv. Exceptions
1. Charitable trusts exception- ascertainability does not apply.

2. Unborn children exception- trusts created in favor of the settlors unborn children are upheld
despite the fact that the settlors unborn children are not ascertainable when the trust is created.
3. Trusts to friends- not a objectively ascertainable formula
4. Familial terms- courts routinely hold that familial terms such as children, issue, nephews, and
nieces are objectively ascertainable.
5. Honorary trust- trusts for the benefits of a pet or trusts to maintain ones gravesite, while
honorable, technically fail for want of ascertainable beneficiaries. Pet has no standing to sue.
a. Rule- if the purpose of the trust is specific and honorable, and not capricious or illegal,
the trust may continue as long as the trustee is willing to honor the terms of the honorary
trust.
d. Trust property
i. In order for a trust to be valid there must be property in the trust at the time the trust is created
ii. If court finds that the subject of the trust constitutes a mere expectancy of property rather than property,
then court will find trust invalid
1. i.e. A trust for stock trading done next year is too speculative
iii. Identification of trust property
1. Insufficiently identified property invalidates a trust
2. The subject matter must be definite and ascertainable
3. There is no trust property if the property is so indefinite it cannot be ascertained
iv. Standby trusts
1. A trust designed to receive Ts assets at death and then to distribute those assets to designed
beneficiaries
2. The trust may not be funded with any assets during Ts life
3. Courts usually uphold these
4. Trustee has no duties till trust is funded at death of T
2) Trust formation- capacity, intent and formalities
a. Capacity
i. Irrevocable Trust- The capacity standard varies depending on the reason for trusts creation Intervivos
Trust-T must meet capacity standard required for gifts
1. The gift standard adds an additional requirement to the testamentary capacity test
a. In addition to the factors that a T must be capable of understanding the natural effect of
their plan, the settler of an irrevocable trust must also understand the effect that the
disposition may have on future financial security of the settler/donor and of those who
may be dependent on him
ii. Testamentary Trust- Same capacity requirement as wills
b. Intent
i. A S cannot create a trust with precatory language (wish or advisory language)
ii. To create a private express trust- settler must express intent to impose an enforceable duty on a trustee
iii. Spicer v. Write (SC VA, 1975)- to be disposed of as agreed = Precatory
1. Will had trust leaving property to sister, to be disposed of as already agreed between us. Court
held that no trust is created by precatory language directed to a legatee unless there is
testamentary intent to impose a legal obligation upon him to make a particular disposition of
property. Court ruled language is precatory, the extrinsic evidence is insufficient to render that
language imperative to establish a testamentary intent to impose a legal obligation to make a
particular disposition of property. There also was no ascertainable beneficiary.
iv. Levin v. Fisch (TX COA, 1966)- Desire was not precatory when construed together w/ trust
1. Will gave all property to children with statement that it is her desire that children pay sister
2,400 a year as long as she is unmarried. Was rich and sister poor and disabled. Had been paying
sister 200 a month for a long time already. In determining whether particular words are to be
construed as precatory or mandatory, the court will look to the expressed intent of the testator, as
found from the contest of the will and surrounding circumstances; and words which, in their
ordinary meaning, are precatory will be construed as mandatory only when it is evident that such
was the testators intent. Court held the words of desire as used in the will were a positive
directive and imposed an obligation on children to comply therewith.
c. Trust formalities
i. Goodman v. Goodman (SC WA, 1995)
1. Father made mother trustee of property for children who were minors. Mother repeatedly said that
money was being held till children mature enough to handle it. Son, now 25 goes to grandma and

asks for share, mother refuses and statute of limitations had ran, had only 3 years after reaching 18
to get for express trust.
a. RULE- Statute of limitations on an express trust begins to run when the beneficiary
discovers or should have discovered the trust has been terminated or repudiated by the
trustee. Court held reasonable interpretation of evidence is the repudiation occurred when
mother told son for the first time she deserved fathers money and would not give him
anything
3) Using trusts as an estate planning tool
a. Avoiding probate w/o the use of trusts- Totten Trusts
i. Totten Trust- A Totten trust (also referred to as a "Payable on Death" account) is a form of trust created
where one party (the settlor of the trust) places money in a bank account or security with instructions that
upon the settlor's death, whatever is in that account will pass to a named beneficiary. For example, a Totten
trust arises where the account is titled in the form "[depositor], in trust for [beneficiary]". It is not a legal
trust, but arises out of equity, as a matter of fairness.
1. Elements
a. Requires retention of property by S during lifetime (delivery on death)
b. Is revocable during Ss lifetime
c. S must show intent through declaration to make a totten trust
d. Notice to beneficiary is not needed
2. Green v. Green SC RI, 1989
a. Court held that T intended to dispose of his property through totten trusts and that s are
entitled to the trust. T had said he wanted to avoid probate and that beneficiaries were to
benefit from the trust at time of his death
b. Law
i. Where depositor dies before beneficiary, leaving unexplained bank account in
form of trust and not revoking or disaffirming trust during his lifetime, prima
facie case supporting creation of valid trust exists.
ii. P.O.D- Depositor does not intend for the other party on the account to take any interest inter vivos, but at
time of death, the depositor intends a right of survivorship. Any money remaining in the account goes to
the other person. UPC treats POD accounts and trusts the same.
1. Transferor is assumed to have the right to cancel
iii. Joint tenancy bank account- both have right to the bank account and upon death, a right of survivorship
exists such that the property will pass non-probate to the joint tenant
b. Avoiding probate through the use of revocable inter vivos trust
i. Revocable trust (Living Trust)- A trust where the S retains a life estate in the trust and is the trustee
and beneficiary of the trust until death
1. Inter vivos Revocable Trust- Using an inter vivos trust to hold and manage ones assets while one
is alive offers a variety of potential benefits, though at a cost.
2. Most will include a pour over will- directs the probate court to distribute Ts probate assets to the
successor trustee of the living trust, to be managed and distributed in accordance with the trusts
terms (pour overs are probated)
3. Irrevocable trusts are made when settler has the goal to make a gift and revocable when goal is to
avoid probate
ii. Pros and Cons of avoiding probate w/ Revocable Trust
1. Pro
a. Professional management- can appoint self, but settlor may appoint professional. Option
is attractive if: (1) settlor anticipates impending incapacity, (2) the settlor wants to
transfer property to minors who lack capacity to hold title. Putting property in trust
increases costs.
b. Segregating assets- good way to segregate assets
c. At death- trustee simply distributes the trust principal to the remainder beneficiaries- no
need for court. (no probate)
d. Family protection- in some jurisdictions an individual can shield his or her assets from
claims by intentionally disinherited family with trust
e. A trust is a private document
f. Less likely to be contested
2. Cons:
a. Not Knowing Time of death- avoiding probate raises a number of other issues

b. Costs- offsetting future fees causes present fees (Trustee fees)

c. Tying property up so you cant use it
d. Creditors claims- if through probate creditors have limited time to collect, in trust get
full benefit of standard statute of limitations
e. Today spouse disinheritance challenges succeed when trust is illusory- i.e. Elective share
can still get to the trust
f. Taxes- as long as the settlor retains the power to revoke the trust, for tax purpose the trust
property is legally treated as if it were still the settlors property regardless of the terms of
the trust.
c. Marketing revocable trusts (Be Careful!)
i. Committee of professional ethics v. Baker- Lawyer was reprimanded for helping a nonlawyer practice law
and for having their professional judgment affected by a non-lawyer
1. Voegtlin was a financial planner who encouraged people to form inter vivos trusts instead of using
wills and the probate system. Miller was a lawyer who worked for a bank and assisted Voegtlin in
running estate planning seminars. Voegtlin and Miller went to another lawyer, Baker, and asked if
they could refer people interested in creating inter vivos trusts to him. The Committee of
Professional Ethics filed a complaint against Baker alleging that Baker was assisting Voegtlin in
the unauthorized practice of law, that he was allowing Voegtlin to influence his professional
judgment, and that he was accepting improper referrals.The Grievance Commission found that
Baker had violated ethics laws and issued a reprimand.
2. The Grievance Commission found that Voegtlin was involved in the unauthorized practice of law.
It was Voegtlin who made all the decisions, gave all the advice, and filled out all the paperwork.
a. The Grievance Commission found Baker guilty of aiding Voegtlin in the unauthorized
practice of law (Rule 5.5)
3. It was Voegtlin's judgment that was being used, not Baker's. Baker did nothing but sign papers he
didn't even prepare. The Grievance Commission did note that Baker cooperated with the
Commission's investigation and none of the clients had complained about their service. They also
noted that Baker did inquire as to the legality of the situation, but when he received no answer, he
just kept on doing it, even though he thought it might be wrong.
d. Providing for minor children
i. A well drafted will that provides for minor children should contain two key provisions
1. First the testator should nominate a custodial guardian to assume primary care of minor children
in the event the children are left parentless
2. Second the will should create a testamentary trust for the childrens benefit
4) Building flexibility into the estate plan: 1) Mandatory, 2) support and 2) discretionary trusts
a. Mandatory trust- trust where the beneficiaries interest in the income is mandatory- the trustee must distribute the
income to the beneficiary
i. A creditor can force the trustee to distribute the income to the creditor pursuant to the terms of the trust
just as the beneficiary could have.
b. Discretionary trust- trust where the beneficiarys interest in the income and or principal is discretionary- the
beneficiary has no right to receive payments of income. Any payments are at the discretion of the trustee
i. Duty to decide- trustee has discretion, but the trustee must exercise his or her discretion pursuant to the
terms of the trust, even if that decision is not to make a payment to the beneficiary,.
ii. Duty to inquire- trustee has a duty to inquire as to the beneficiarys status and needs. If the trustee fails to
inquire, the trustee is deemed to have breached his or her fiduciary duty.
iii. Scope of Trustee discretion- trustee has duty to act reasonably and in good faith.
1. Settler may modify duty- may modify to sole discretion or absolute discretion
2. Settlors purpose- settlor can provide purpose or standard to keep in mind when exercising
discretion.
a. i.e. comfortable support and maintenance
c. Support trusts- Trust that gives trustee power to pay income for the support of a named beneficiary. S need not use
the word support. The trust might authorize payment of income for the support and education or for
maintenance of beneficiarys lifestyle. Trustee is obligated to pay beneficiary amounts necessary for support.
i. Trustees mandatory duty
1. Ascertain what beneficiary needs for support
2. Pay that amount to beneficiary
ii. Transferability- beneficiary does not have the right to transfer his or her interest. The effect of saying that
the interest is nontransferable is to imply a spendthrift clause.

iii. Basic necessities- creditors who provide basic necessities are not subject to the implied spendthrift clause
and can reach the beneficiaries interest in the support trust.
iv. Construction- key is in classification, need to say payment is limited to the amount necessary for the
beneficiaries support (and education).
v. Wells v. Sanford (SC ARK, 1984)
1. Court found that the testamentary trust was intended to support Nora Wells regardless if her
property was insufficient to maintain her
a. The Testamentary trust stated For the use and benefit of Nora during her life, sums
necessary for Noras support
b. The court didnt care whether Nora had ample property to care for herself b/c the trust
was set up for her benefit regardless
2. Law
a. The word necessary for support- is to be used to support the beneficiary regardless of
beneficiaries own assets (unless T gives contrary meaning)
vi. Dunkley v Peoples Bank & Trust Co
1. Court found trustee violated support trust guidelines when trustee gave widowed spouse 140K out
of the trust so widowed spouse could buy a new home even though spouse already had a 100K
home. Court found this was not allowed b/c trust was primarily for health and support in
reasonable comfort of spouse.
d. Beneficiarys resources- whether the trustee is to consider the beneficiaries other resources in deciding whether to
make a payment to the beneficiary is a question of Ss intent. Where Ss intent is not clear, most courts hold that the
presumption is that the S intended to provide for the beneficiary regardless of the beneficiarys other resources.
i. Marsman v. Nasca- settlor provided that trustee give husband any amounts necessary for his comfortable
support and maintenance. They lived well off together and after settlors death husband lost job. Husband
brought to attention of trustee and they gave him small amount. Court ruled trustee breached his duty to
inquire into husbands situation and had breached his discretion in not disbursing more to husband. Trustee
was supposed to maintain comfortable support.
ii. Exculpatory clauses- Protects the trustee against liability for breach of trust absent willful neglect or the
such.
iii. Sprinkle/spray trusts- trustee has power to sprinkle or spray property among the eligible beneficiaries.
From the beneficiaries perspective the trust is discretionary, from the trustees perspective the trust is
mandatory-the trustee must distribute the property, but as to whom and how much, the trust is
discretionary.
5) Protecting beneficiaries and Estate from Creditors
a. Support and discretionary trusts
i. Discretionary trusts- Just as the beneficiary could not force a trustee to distribute property to the
beneficiary, nor can a creditor of a beneficiary.
ii. Wilcox v. Gentry
1. Creditors of beneficiary brought garnishment action against trustee of discretionary trust which
lacked spendthrift provision.
2. TC determined that trustee payments directly to beneficiary were subject to garnishment but that
trustee payments for beneficiary's benefit were not.
3. Creditors appealed.
4. The Court of Appeals affirmed in part and reversed in part.
5. The Supreme Court held that:
a. There was no basis for distinguishing between funds paid directly to beneficiary and
those paid on their behalf and in holding the latter could not be reached through
garnishment, and (both subject to creditors once disbursed!)
6. Restatement 2nd of Trusts:
a. Unless a valid restraint on alienation has been imposed in accordance with the rules
stated in 152 and 153, if the trustee pays to or applies for the beneficiary any part of the
income or principal with knowledge of the transfer or after he has been served with
process in a proceeding by a creditor to reach it, he is liable to such transferee or
creditor
b. Spendthrift Trusts- Trusts that expressly restricts the beneficiaries power to transfer his or her interest. Bars a
beneficiaries ability to transfer his interest voluntarily or involuntarily. (protects against creditors)
i. Voluntary- spendthrift clause does not have to restrict voluntary and involuntary. Can bar only voluntary
but leaves open involuntary, thereby permitting a beneficiarys creditors to reach the property.

ii. Involuntary- Spendthrift that bars only involuntary transfers by a beneficiary but leaves open voluntary is
deemed against public policy and is null and void.
iii. Validity- There is an on going debate over both the validity of spendthrift clauses and the scope of
spendthrift clauses
1. General rule- spendthrift clauses are valid and enforceable, even as applied to remainder interest
in trust.
iv. Scheffel v. Krueger- P tried to get to a Ts spendthrift trusts for judgment on sexual assault of her daughter.
Court ruled that could not get at trust.
1. Rest. Exceptions to getting at a Spendthrift trust:
a. Ex spouses entitled to spousal support
b. Children entitled to child support
c. Creditors who provide basic necessities
d. Tax claims by the state or federal government
v. Bacardi v. White- Court held spendthrift trusts is subject to garnishment for claims for alimony or child
support. Also attorneys fees from divorce
c. Statutory limitations on spendthrift trusts
i. A number of states have different types. First limits the amount of a beneficiarys interest that can be
shielded from creditors claims by a spendthrift clause to the amount necessary for the beneficiarys
support and education. The second type of statute permits a creditor to reach a fixed percentage of a
beneficiarys interest and a third type of statute typically has a fixed dollar amount cap on the amount of
money that can be shielded from creditors claims by a spendthrift clause.
ii. Bankruptcy Court- A beneficiarys interest in is not reachable in bankruptcy
iii. NY- in NY a beneficiarys interest is presumed nontransferable unless the trust expressly provides
otherwise.
6) Trust modification and termination
a. Intro- trusts end naturally pursuant to its terms. A trust ends when all of the trust property is completely disbursed.
i. Revocable trusts- If settlor retains power to revoke, settlor can single handedly terminate the trust. Power
to terminate implicitly includes the power to modify- settlor can revoke the trust and create a new trust
with a modified provision.
ii. Connecticut general life insurance v. first national bank of Minneapolis- Held, where a settlor reserves
the power to revoke a trust by a transaction inter vivos, as for example by notice to the trustee, he cannot
revoke the trust by his will. Court held that the trust was not revoked b/c T didnt follow the guidelines T
set for revoking it.
1. Law
a. T must follow the guidelines for revoking a trust where their trust says how to revoke it
b. Rest 3rd of Trust and UTC
i. If no means of revocation of trust in instrument then it can be by any means of
the T, including by will
b. Settlor and beneficiaries consent
i. Even if the trustee objects, the trust can be modified or terminated. The trustee has no beneficial interest in
the trust.
c. Trustee and beneficiaries consent
i. Assuming S has no interest in the trust, if all the beneficiaries consent and the trustee consents, the trust
can be modified or terminated.
ii. The trustee owes a fiduciary duty to the beneficiaries to comply with the terms of the trust, and
modification or termination arguably constitutes a breach of that duty. But if all beneficiaries consent, each
will be stopped later if one tries to sue the trustee. The settlor has no interest in the trust and as such has no
right to sue the trustee if the trustee if the trustee consents with the beneficiaries to the termination of the
trust.
d. Beneficiaries consent & trustee objects- If all the beneficiaries consent but the trustee objects, and the S is dead,
the jurisdictions are split over whether the beneficiaries have the power to modify or terminate the trust over the
trustees objections.
i. Common law (English approach)- Dead hand control not permitted. After death beneficiaries are deemed
owners of the trust property.
ii. Traditional American approach- trustee has the right, to some degree, to object to a modification and
termination by invoking the settlors intent as expressed in the terms of the trust.
e. Trust modification

f.

i. Common law- Even if the trustee objects, if an unforeseen change of circumstances defeats or
substantially frustrates the settors intent, and all the beneficiaries consent, the court will order
modification of the trust.
1. Elements
a. Unforeseen change of circumstances
b. Substantially frustrates Ss intent;
c. All beneficiaries consent
ii. Settlors intent
1. Common law- There is an assumption that modification is to further settlors intent
iii. Unforeseen change
1. Common Law- Courts are generally more protective of settlors intent, even against attempts at
modification. The courts tend to apply a rather high threshold.
2. Modern trend- Shift toward giving the beneficiaries greater control over the property in the trust
after the settors death. Low threshold.
3. Beneficiaries advantage- The Mere fact that modification would be more advantageous is NOT
enough to warrant modifying even if all beneficiaries agree.
4. Beneficiaries consent- can cause problem for beneficiaries that lack capacity to consent. Can get
guardian to step in place.
iv. UTC 411(b)
1. Beneficiaries may terminate or modify trust if the court concludes that continuance of the trust is
not necessary to achieve any material purpose of the trust or that modification is not
inconsistent w/ a material purpose of trust
v. 65 Rest. 3rd Termination or Modification by consent of Beneficiaries (Balancing)
1. If termination or modification of trust would be inconsistent w/ material purpose, the beneficiaries
CAN NOT compel except w/ consent of S or after Ss death with consent of court if it determines
that the reason for termination outweighs the material purpose (looks like a balancing test)
Trust termination
i. Adams v. Link (SC CN, 1958)-Compromise by beneficiaries to terminate trust was not permitted b/c the
purpose of benefiting a friend and the corpus to fund a charity for blind would not be fulfilled if
compromise allowed
1. Rule- Three things must occur to allow termination
a. That all parties in interest unite in seeking the termination; (Consent)
b. That every reasonable ultimate purpose of the trusts creation and existence has been
accomplished; (All purpose accomplished)
c. That no fair and lawful restriction imposed by the testator will be nullified or disturbed
by such a result (Ts restrictions wont be nullified)
ii. American National Bank of Cheyenne v. Miller (SC WY, 1995)
1. Beneficiaries brought suit requesting that trust, established to provide income to settlor's son-inlaw and educational assistance to settlor's grandchildren, be terminated.
2. DC terminated the trust over objection of trustee. Trustee appealed and was ordered to pay
supersedeas bond at its own expense.
a. Note- A supersedeas bond is a type of surety bond that a court requires from an appellant
who wants to delay payment of a judgment until the appeal is over
3. SC held that: (1) trustee, in exercising its duty to defend trust, had standing to appeal; (2) trust
could be terminated following fulfillment of material purpose; but (3) requiring trustee to post
supersedeas bond at its own expense was error (should be out of estate).
4. Early termination of trust established to provide income to Ss son-in-law and educational
assistance for S's grandchildren could be compelled by consent of all beneficiaries following
fulfillment of trust's material purposes; son-in-law could assign support interest, per capita
distribution would ultimately be made to grandchildren, and each of three named grandchildren
had reached age 35, which was condition for delay of distribution to them following death of
income beneficiary.
5. Rule:
a. If all of the beneficiaries of a trust consent and none of them is under an incapacity, then
can compel the termination of the trust
b. If the continuance of the trust is necessary to carry out a material purpose of the trust, the
beneficiaries cannot compel its termination.
iii. Unfulfilled material purpose- handful of scenarios where virtually every court has held that the trust
intrinsically includes an unfulfilled material purpose:

1.
2.
3.
4.

Discretionary trusts
Spendthrift trusts
Support trusts
Trust where the property is not to be disbursed until the beneficiary reaches a specific age
a. Settlors intent- even if the trust expresses an unfulfilled material purpose that the trustee
invokes to block premature termination of the trust, if the settlor is alive and consent with
all the beneficiaries, the settlors consent controls over trustees attempt to block.

7) Charitable trusts
a. Charitable purposes
i. A chairtable trust requires
1. Settlor must intend to create a charitable trust w/ a charitable purpose; and
2. The charitable trust is to an indefinite number of persons
ii. Charitable purpose- courts have typically limited the concept to one of six delineated purposes. Trust
must be:
1. To relieve poverty
2. To advance education
3. To advance religion
4. To promote health
5. For governmental or municipal purposes
6. For other purposes that, if accomplished, would benefit the community
iii. Benevolent trusts- Are NOT charitable trusts unless the kind acts qualify as one of the recognized
purposes. (i.e. perform kind acts or do good things) .
1. Shenandoah valley national bank v. taylor
a. Ss trust provided that the income was to be distributed on the last day of school
proceeding Easter break for children in grade school and local elementary to be used to
further childrens education.
b. This was a benevolent trust. No evidence here children were poor. As a benevolent trust,
the trust failed because it violated the rule against perpetuities.
i. Rule- Where the trust conveys mere financial enrichment, the trust qualifies as a
charitable trust only if, from a totality of the circumstances, it becomes apparent
that the intended beneficiaries are poor in necessitous conditions.
iv. Rule against perpetuities- one of principal benefits of charitable trust is that it is not subject to the rule
against perpetuities.
1. UPC- expressly provides that a trust that fails for want of a charitable purpose may continue for
up to 21 years if the trustee is willing to honor the purpose and the purpose is lawful.
b. The Cy Pres Doctrine
i. Rule statement- UTC-where a trust with a general charitable purpose expresses a particular charitable
purpose, and it becomes impossible, impracticable, or illegal to carry out that particular charitable purpose,
rather than imposing a resulting trust, the trust purpose is modified to serve another particular charitable
purpose within the general charitable purpose.
1. Elements
a. T intends a trust with a charitable purpose
b. The purpose is impossible, impracticable or illegal to satisfy
c. Another similar general charity that satisfied the purpose is allowed
2. Cy Pres Does not apply:
a. Specific gifts
b. When T anticipated failure of the gift
c. When T provides Alternative disposition
d. When T provides a Gift over
ii. Estate of Crawshaw
1. Summary
a. T left to gift to salvation Army and to a college. Directors of college made a trust to keep
the money for the college because the college closed. Salvation Army challenges the
Colleges trust as not being a successor charitable beneficiary.
b. Court found that the directors trust was a general charitable beneficiary b/c they used the
money to form other colleges. And therefore under Cy Pres it was allowed
c. Court found that T had a general charitable intent to benefit the college
2. Law
a. Cy pres doctrine should not be applied if testator has:

i. manifested specific charitable intent;

ii. has anticipated possible failure of trust; or
iii. has made alternative disposition of property if charitable gift should fail
iii. UTC 413(a)
1. If a particular charitable purpose becomes unlawful, impracticable, or impossible to achieve, or
wasteful;
a. The trust does NOT fail, in whole or in part
b. The trust property does not revert to the S or the Ss successors in interest; and
c. The court may apply Cy Pres to modify or terminate trust in a manner consistent w/ Ss
charitable purpose
2. A provision in terms of a charitable trust that would result in distribution to a noncharitable
beneficiary prevails over the power of the court to apply cy pres ONLY IF:
a. The trust property is to revert to S and settlor is still living; or
b. Fewer than 21 years have elapsed since the date of trusts creation
VII. CLASSIFICATIONS AND CONSTRUCTION OF FUTURE INTERESTS
1) Class Gifts
a. Increase in class
i. Class Gift- A gift to a all the members of a group
ii. Class Closing rule- When a grantor makes a class gift, membership in the class may continue to increase
until at least 1 member of the class becomes entitled to possession of the property that is subject of the
class gift
1. Unless T intend otherwise, a class closes when 1 is entitled to distribution (also known as the rule
of convenience)
2. Exception
a. If at the time an interest is intended to become possessory, no member of class has yet
been born, then the class closing rule will not apply, and we will wait for the class to
close naturally
iii. In re Evans estate
1. Summary
a. Court held that that the 3 additional grandkids born after Ts death but before one of them
reached 30 was entitled to share as a member of the class b/c the condition was that the
gift vests when one reaches age 30. The condition was not satisfied (that 1 kid reach age
of 30)
2. Law
a. The time of distribution of the corpus settles the question of maximum membership
b. Early vesting rule- Court prefer the early vesting of a class gift
iv. What if a class member dies?
1. If it is a vested interest (class is closed for new entrants) then some states allow it to be split
between the other members of the class and not the descendants of dead class member
b. Decrease in class membership
i. Who gets the survivorship interest when a class member dies?- I give to my children Hypo:
1. 3 Possible Solutions for I give to my children
a. Children means children and no survivorship requirement. If Child dies then it is devised
by the dead class members will
i. Most orthodox approach
ii. This is the R3 approach
b. Children means children but we impose a survivorship requirement. The other class
members will share the dead class members share
c. Children means issue- The issue of the dead class member get the share
i. UPC approach endorses this
2. A person can leave a class if they:
a. Die
b. Adopted
ii. Usry v. Farr (SC GA, 2001)
1. Ts will expressed intention to provide for those who survive him and all 5 grandkids survived
him
2. 1 of the grandkids died after T died leaving 3 kids.

3. Court found that the class closed and vested when T died, therefore since Hoyt survived Usry, his
3 grandkids take his class share upon his death
4. There was no requirement that the grandkids survive the Life Tenant
5. Law
a. To make it clear that T intends to require survival T should include express language to
that effect.
c. Adopted members of the class
i. Intro
1. General rule- a will or trust leaving future interest to a person includes that persons adopted
children
2. UPC 2-705(a)
a. adopted children are included in class gifts in accordance with rules for intestate
succession
b. When transferor is NOT the adopting parent- an adopted individual isnt considered the
child of the adopting parent unless adopted individual lived while a minor, either before
or after the adoption, as a regular member of the household of the adopting parent.
3. Note- Even when gift is to issue, courts typically hold adopted members of the class entitled to
take equally with natural borns. (however Ts intent governs if different)
ii. Apply the law at execution unless T states otherwise
1. Newman v. Wells Fargo Bank, NA (SC CA, 1996)- Law at time of execution
a. Court held that the adopted child does not receive a benefit under the will b/c Ts intent
required the law that was around at time of execution to govern.
b. Law
i. The law that was in effect at time of execution of the will governs unless T
intends otherwise
iii. Adult adoptions
1. Davis v. Neilson (not covered)
a. Court didnt allow adult adoption. Common sense tells us that a donor would normally
expect anyone partaking of his bounty to be a true family member and not just some
willing adult adopted for purpose of reducing or defeating a gift over to others
2. Courts are more likely to permit adult adoptees to inherit when the relationship b/t parent and the
child appears to track traditional relationships
b. Class gifts and non-marital children
i. UPC 2-705(a)- Provides, as with adopted kids, that individuals born out of wedlock should be treated for
purposes of class gifts in the same way they are for Intestate succession.
ii. UPC 2-705(b)- When transferor is not the natural parent- an individual born to the natural parent isnt
considered the child of that parent unless individual lived while a minor as a regular member of household
of that parent or of that parents parent, brother, sister, spouse, or surviving spouse.
2) Gifts to heirs
a. Often settler makes a gift over after stating a preffered class to the Ts own heirs ( to my heirs
b. Harris Trust and savings Bank v. Beach (SC of IL, 1987)
i. Issue
1. Whether the settler intended that his heirs be ascertained at his death or after the death of his wife?
ii. Summary
1. Court found that the heirs should be determined at Alices death and go to the grandkids, and great
grand kids instead of through Alices will.
2. The trust revolves around Alices life and death, therefore construing the whole trust and the other
trust, the court found that the class was to vest on wifes death
3. The provision in the trust creating a reversion in T also shows intent that heirs be determined at
Alices death (conditioned trust on survival of wife)
4. This doesnt fall under worthier title b/c the interests of the heirs and at time of execution and time
of vesting are different
iii. Law
1. Unless the Ss intention to the contrary is plainly shown in the trust document, courts will rely
upon the technical meaning of the term heirs by applying it as a rule of construction
2. Doctrine of worthier title- Doctrine that voids a gift to Gs heirs because it is worthier to take by
descent than by devise.
a. Courts no longer follow this doctrine stringently and use it as a rule of construction
c. The Common law had a presumption in early vesting because it believed:

1. Contingent remainders were destructible

2. It is easier to transfer property to an identifiable taker
3. Avoid invalidity under RAP
d. Divide and Payover rule
i. Where the only words of gift are found in the discretion to divide or pay over at a future time the gift is
future, not immediate; contingent and not vested
Drafting a Trust
Gallagher, Property That Passes Under a Will, . . . PLI Estate Planning and
Administration (1997)
Green, Drafting Considerations for Basic Trusts, Res Gestae (1995)
Riley, New Drafting Issues for Revocable Trusts, J. Mo. Bar 22 (2006)
V. INCAPACITY
1) Planning for Incapacity
a. Lawyers should be prepared to
i. Provide docs to empower someone chosen to manage clients finances
ii. to provide docs to communicate clients wishes re medical care and death and to provide docs to empower
agent or surrogate chosen by client to manage clients health care and make health decisions
iii. to provide planning designed to lessen costs of incapacity requiring long term custodial care by
qualifying the client for Medicaid w/o sacrifisng the family fortune
b. Conservatorship- guardian of property
i. UPC 5-401 Protective proceedings
1. Upon petition, notice, and hearing a court may appoint a conservator or make protective order
2. Conservator may be appointed if:
a. Person is unable to manage property & business affairs effectively due to mental illness,
mental deficiency, disability, chronic drug use, confinement, detention by a foreign power
or disappearance; and
b. Person has property that will be wasted unless management is provided
ii. UPC 5-406- Procedure concerning hearing and order on original petition
1. Court holds a proceeding where a lawyer may be appointed to the person and the court may direct
that person be examined by doctor.
2. Court may use services of an agency to evaluate the person
3. The person is entitled to be present at hearing and to cross examine
iii. In re Maher (NY 1994)
1. Summary
a. Court dismissed the petition for guardianship/conservatorship
b. The father only suffered from functional limitations (speaking, and writing) which is not
likely to harm the mgmt of property or being able to understand or appreciate the nature
and consequences of his disabilities.
c. Doctors noted that the father was recovering
2. Law
a. NY Mental Hygiene law- In order to determine guardianship a court must find:
i. The appointment is necessary to manage the property of that person, and
ii. The person agrees to the appointment or the person is incapacitated
1. Must be based on CCE that person is likely to suffer harm b/c he is
unable to provide for property mgmt and appreciate the nature of such
consequences
b. The size of the property involved, standing alone, is not dispositive as to capacity
c. Note- UPC calls a fiduciary who deals with property a conservator and a person who
takes care of personal matters a guardian
c. Power of the Conservator
i. Issue
1. Conservator has the power to meet basic financial needs, may the conservator also engage in
estate planning? Yes
ii. In re Daly (Surrogates court Nassau County 1988)

1. Summary
a. Court held that the kid should pursue estate planning objectives and should adopt a plan
to limit the tax impact on his property should he die.
b. The plan is ok b/c it uses surplus income
c. The life expectancy of kid is 15 years but his condition could get more severe
d. Court allowed only 1 gift of 10K to each of siblings of Kid without prejudice for renewal
upon papers revealing the kids assets and needs.
e. The court found that saving an estate from taxes was a valid estate planning objective that
the child would have wanted.
2. Law
a. Doctrine of substituted judgment- A doctrine that allows a person to substitute their
judgment for that of a person incapacitated.
i. The court must employ an objective standard, and inquire as to what a
reasonable prudent person would want in the circumstances
iii. Is it a good thing or bad thing that CA law allows a conservator to make a will for someone incapacitated?
1. CA Probate Code 2580 Petition to authorize proposed action
a. Conservator or other person may file petition authorizing the conservator to take a
proposed action for making a will
iv. Joint accounts and joint tenancies
1. People make joint accounts and joint tenancies to avoid conservatorship for the property.
2) Powers of Attorney
a. Power of attorney (attorney in fact)- Gives attorney or agent, power to stand in the property owners shoes and act
for him as to property matters (need not be a lawyer)
i. Durable power of attorney- Gives person power to stand in the place of another person after that person
has become incapacitated
ii. Springing powers of attorney- Gives a person POA upon the satisfaction of some condition
b. Estate of Huston (COA 1997)
i. Issue
1. Does decedents oral assent to the gift serve to ratify the transaction and make it valid.
ii. Facts
1. Amberg had power of attorney authority for Huston. Ambergs POA provided that you shall not
make gifts to yourself. Decendent orally authorized Amberg to make gift to himself. Other
testified to the truth of that.
iii. Law
1. A POA is a written authorization to an agent to perform specified acts on behalf of the principal,
rule sound in agency.
2. Ratification of an agents act can be made only in the manner that would have been necessary to
confer an original authority for the act ratified.
3. Because a power of attorney must be in writing, any act performed by the agent acting under the
POA must therefore be ratified in writing to be valid.
iv. Holding
1. The court held that the oral assent does not circumvent the language of the POA
2. Therefore the gift was void b/c the POA did not have the written power to have the gift
c. Bank Bureaucracy
i. Not every financial intermediary will honor a POA
1. 2 excuses banks use for not allowing a POA
a. we only take our own form
b. your power of attorney is stale (signed too long ago)
2. CA has created a POA form for banks
3) The Health Care And Death Decisions
a. Wendland v. Wendland (SC CA)
i. Court found insufficient (not CCE) evidence that Conservatee wanted to be put to death due to his injuries
from his accident. The accident left him brain damaged, immobile, and dependent on artificial means of
life support, but was minimally conscious.
ii. Court found that evidence that Conservatee said while drunk that he didnt want to end up like a vegetable
like his dad and that while he was mad he said he didnt want to be like his dad was not enough
iii. Law

1. A conservator may not withhold artificial nutrition from such a person absent CCE the
conservators decision is in accordance w/ either the conservatees own wishes or best interests
a. Basically there is a two-part test. If there is no valid health care directive, there must be
clear and convincing evidence of both wishes and best interest.
i. This test only applies to people who are not in a persistent vegetative state.
b. Uniform health care decisions act 1993 2355
i. Conservator shall make health care decisions for conservatee in accordance w/ Conservatees individual
health care instructions/
ii. Otherwise, conservator shall make decision in accordance w/ conservators determination of conservatees
best interests. Considering conservatees personal values to the extent known to the conservator