Wills Trusts Estates Outline HOFSTRA

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Professor Grossman Fall 2013 Wills Trusts Estates

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WILLS, TRUSTS & ESTATES OUTLINE WILLS
WEALTH TRANSFER UPON
I# T$e E%o&omi%s Of I&$erita&%e
'(stifi%atio&s for )assi&* wealt$ at +eat$ Society based on private property – this is least objectionable way to deal with property at owner’s death Incentive for recipients to do certain things ta!e care of parents, grandparents, so they will get" %llows for the ta!ing care of dependents rather than State having to" &ncourages productivity and control wor! hard so children can have better life" &ncourages earnings and savings b'c you !now it will pass to children, so no wasting" Ar*(me&ts a*ai&st )assi&* wealt$ at +eat$ Transfer of fortunes perpetuates wide disparities in the distribution of wealth, concentrates inherited economic power in the hands of a few, and denies equality of opportunity to the poor. #anger $ inherited wealth becoming the basis of enduring privilege
EATH!

THE FUN

A"ENTALS

Tends to reward chance of fortunate birth, rather than merit or productivity %ccumulation of wealth, rather than consuming it which is better for society"

II# Free+om of Testatio&! Limite+
a" (est. )d" *rop. #onative Transfers + ,-.,. T$e %o&trolli&* %o&si+eratio& i& +etermi&i&* t$e mea&i&* of a +o&ati,e +o%(me&t is t$e +o&or-s i&te&tio&, w$i%$ is *i,e& effe%t to t$e ma.im(m e.te&t allowe+ /0 law# i" (ationale. freedom of disposition – property owners have the nearly unrestricted right to dispose of their property as they please. ii" &ffect. donor’s intention not only determines the meaning, but also the effect of a donative document /" THE RI1HT TO ISPOSE OF PROPERT2 32 WILL IS 4ONFERRE AN RE1ULATE 32 STATUTE# i" Wescott v. Robbins ,012" ," 3acts. Soldier sent letter to ban! saying he wanted to open an account to deposit money, and made it 4in trust5 so only he could withdraw. %lso said if he died, he wanted grandpa to be beneficiary. 6etter to grandpa he planned on using money for business when he got bac! from war. 6etters typewritten and signed only by soldier. 7" 8olding. The right to dispose of property by will is conferred and regulated by statute9 the letters did not conform to what statute prescribed as to constitute a valid disposition of the property. *roper form is for will to be signed, witnessed, notari:ed, or holographic – otherwise, could be fraud. ;ot a trust b'c no trust property created – never set it up.

c" THE

HAN LI"IT! RESTRI4TIONS ON INHERITAN4E PER"ITTE IF NOT ILLE1AL, AN IN A44OR AN4E WITH PU3LI4 POLI42# i" (est. 7d" of *rop. #onative Transfers + 2.7. ," (estraint on marriage must be reasonable and must not interfere with marriage i.e., last name provisions, encourage divorce" 7" (estraints may not promote destruction of property. ii" Shapira v. Union National Bank ,0<1" ," 3acts. =ill disposes property to son only if he marries a >ewish girls whose both parents are >ewish within < yrs of testator’s death9 otherwise goes to state of Israel. 7" 8olding. will provision held valid ? enforceable – must honor testator’s intent within the limits of law and public policy. a" @onstitutionality $ right to marry, protected by ,1th amendment, being violatedA ;o. ;o restriction on marriage here9 @ourt only as!ed to enforce the restriction on the inheritance. i" ;ote. @annot restrict ability to get married. b" *ublic policy violatedA i" violated b'c free choice of religious practiceA ;o. Son won’t be in contempt for failing to marry a >ewish girl. >ust won’t get B. ii" Ciolated b'c would encourage marriage just for B, then divorceA ;o. possibility too remote, ? assumption that son’s motive for marriage is proper. ,. ;ote. @annot condition bequest on getting a divorce. c" Dnreasonableness – pressure to marry in < yrs w'o opportunity for mature reflection ? jeopardi:es college educationA ;o. < yrs reasonable time for eEhaustive reflection ? fulfillment of condition w'o constraint or oppression.
EA

II#

Tra&sfer A&+ e%e+e&t-s Estate
a" Pro/ate ,# No&)ro/ate i" *robate $ property that passes under the decedentFs will or by intestacy ," #istribution of probate assets under a will or intestacy may require a court proceeding involving probate of a will or a finding of intestacy followed by appointment of a personal representative to settle the probate estate. ii" ;onprobate $ property passing under an instrument other than a will ," ;onprobate property includes the following. a" >oint Tenancy property $ decedentFs interests vanishes at death9 survivor has the whole. b" 6ife Insurance $ proceeds on decedentFs life paid to beneficiary named in policy. c" @ontracts with payable$on$death provisions $ @ontract can be with employer, ban!, etc., to distribute property to name beneficiary upon death eE. pension plans" d" Interests in Trust $ trustee holds the property for the benefit of the named beneficiaries, then distributed per terms of trust. 7" ;o court proceedings – distribution determined by the nonprobate document b" Terminology i" Ggo through probateG $ to have the estate administered through probate courts ii" *roper to use the word GwillG to refer to an instrument disposing of both real and personal property iii" % person dying testate devises real property to devisees9 bequeaths personal property to legatees. GI giveG effectively does the job in all circumstances iv" (eal property descends to heirs9 personal property is distributed to neEt$of$!in. c" %dministration of *robate &state 7 ' 1)

i" Perso&al Re)rese&tati,e – appointment of personal rep necessary to oversee winding of decedent’s affairs. %ppointed by, under control of, and accountable to probate court. ," E.e%(tor $ If the will names the person who is to eEecute the will ? administer probate estate, the personal rep is called an eEecutor 7" A+mi&istrator $ if will doesn’t name the personal rep, then called administrator a" Selected from a statutory list of persons given preference usually heirs or creditors" b" %dministrator must give bond ii" 3our functions of probate. ," @ollection of assets 7" ;otifying and paying creditors )" *aying estate taEes 1" Title clearing ? distribution of the assets iii" >urisdiction! *rimary or domiciliary jurisdiction $ jurisdiction where decedent domiciled at time of death. If real property in another jurisdiction, then ancillary administration in the jurisdiction is required. iv" *robating will in common form ," &E parte proceeding in which no notice or process issued to any person. &Eecution of will proved by oath of eEecutor or other witnesses is required. =ill admitted to probate at once, letters of testamentary granted, and eEecutor began administration of the estate. If no one raised objection, then fine. Htherwise, one might compel in solemn form 7" Iaj of states don’t permit eE part proceedings, but require prior notice to interested parties before appointment of a personal rep or probate of a will. v" *robating will in solemn form ," ;otice to interested parties given by citation, due eEecution of will proved by testimony of attesting witnesses, and administration of estate involved more court participation vi" D*@ Dniform *robate @ode" $ adopted in many states, so representative if statutes regulating probate procedures. *rovides for both eE parte probate informal probate" and notice probate formal probate" ," Informal *robate requirements a" w'o giving notice, rep petitions for appt b" *etitions contains info on decedent ? names'addresses of spouse, children, other heirs9 if will, also info on devisees c" If petition is for probate of a will $ original will must be with the petition d" &Eecutor swears that to best of !nowledge, will validly eEecuted no proof by witnesses req" e" (egistrar will probate, w'o further proof if will has req signatures and contains attestation clause showing reqs of eEecution were met f" =ithin )- days after appointment, personal rep has duty of mailing notice to every interested party, including apparently disinherited heirs 7" 3ormal *robate $ is a judicial determination after notice to interested parties. %n interested party can demand formal probate. These are final judgments if not appealed. )" Statute of limitations to probate is ) years after date of death. If not within ) yrs, presumption of intestacy is conclusive. vii" Time for contest $ depends on statute9 if statute of limitations eEpires, probate court no longer has jurisdiction to revo!e probate, and probate of the will is final. ," statutes require creditors to file claims within specified period, otherwise barred nonclaim statutes". viii" @losing the &state $ >udicial approval of personal repFs actions required to relieve rep of liability. (ep not discharged from fiduciary duties until the court grants discharge. ) ' 1)

iE" Dniversal Succession 6ouisiana ? &urope" $ the heirs or the residuary devisees succeed to the title of all the decedentFs property9 there is no personal rep appointed by a court. The heirs assume all decedentFs obligations and liabilities

Will ,ali+it0 *e&erall0 re5(ires! 6 Testame&tar0 4a)a%it0 6 Testame&tar0 I&te&t 6 (e E.e%(tio&

4APA4IT2
Testame&tar0 I&te&t re5(ires testame&tar0 %a)a%it0# Testame&tar0 %a)a%it0 re5(ires me&tal %a)a%it0#

"e&tal 4a)a%it0
a" T$e Test of "e&tal 4a)a%it0 To /e %om)ete&t to ma7e a will, t$e testator m(st /e a& a+(lt 89:; 0rs< a&+ m(st /e =of so(&+ mi&+#> i" Fo(r Part Test for +etermi&i&* =of so(&+ mi&+!> ," The testator must be capable of !nowing and understanding in a general way. a" the nature and eEtent of his property, • !now in a general sense what you own9 not necessary to !now the specifics about your property b" the natural objects of his bounty, • a sense of who should ta!e c" the disposition that he is ma!ing of that property9 and • you have to !now what eEactly you’re doing with the will d" must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property. • 8ave a clear understanding of what you’re engaging in when you create a will ii" ;ote. The test is one of %a)a/ilit0, not of actual !nowledge. If test was of actual !nowledge, a reasonable mista!e about whether one of your children was alive would ma!e you mentally incompetent since you wouldn’t !now the natural objects of your bounty family". /" TESTA"ENTAR2 IN4APA4IT2 4ANNOT 3E ESTA3LISHE 32 ISOLATE A4TS# i" In re Estate of Wright ," 3acts. =ill devised to his friend one of this properties, his daughter another, and his interest in the )rd to his granddaughter. 8e left his grandson ? others B, each. =ill duly eEecuted, with notary ? witnesses signing. =ill contested b'c of mental capacity. Iany witnesses testified that he was of unsound mind, including those present at the signing of the will, and gave many eEamples of his weird behavior. 7" 8olding. not enough evidence of unsound mind a" T$e le*al )res(m)tio& is alwa0s i& fa,or of sa&it0, es)e%iall0 after attestatio& /0 s(/s%ri/i&* wit&esses, for it is t$e +(t0 of t$e s(/s%ri/i&* wit&esses to /e satisfie+ of t$e testator?s sa&it0 /efore t$e0 s(/s%ri/e t$e i&str(me&t# The notary ? witnesses has subscribed to the will, but later testified that he was of unsound mind at that time. ;ot 1 ' 1)

enough evidence offered to overcome presumption of sanity that was created when they subscribed. b" Testame&tar0 %a)a%it0 %a&&ot /e +estro0e+ /0 s$owi&* a few isolate+ a%ts, foi/les, i+ios0&%rasies, moral or me&tal irre*(larities or +e)art(res from t$e &ormal (&less t$e0 +ire%tl0 /ear ()o& a&+ $a,e i&fl(e&%e+ t$e testame&tar0 a%t# The only evidence was testimony that he was a drun!, !ept to himself, lived alone and in a messy place, and did weird things li!e pinning garbage to bushes ? showing the neighbor his GrosesG". These acts had no bearing on his ability to create the will. 8e !new the objects of his bounty, the property he owned, etc. c" =hy (equire Iental @apacityA *ossible >ustifications. i" % will should be given effect only if it represents the testatorFs true intent ii" % mentally incompetent man or woman is not defined as a Gperson.G iii" The law requires mental capacity to protect the decedentFs family. iv" To a large eEtent the public acceptance of law rests upon a belief that legal institutions, including inheritance, are legitimate, and legitimacy cannot eEist unless decisions are reasoned. v" %ssures a sane person that the disposition the person desires will be carried out even if the person later becomes insane and ma!es another will. vi" Iay protect society at large from irrational acts. but doesn’t protect society from a sane person acting irrationally" vii" Iay protect a senile or incompetent testator from eEploitation by cunning persons. #" "ENTAL 4APA4IT2 4AN 3E EFE4TI@E UE TO AN INSANE ELUSION i" A )erso& ma0 $a,e s(ffi%ie&t me&tal %a)a%it0 *e&erall0 to e.e%(te a will /(t ma0 /e s(fferi&* from a& i&sa&e +el(sio& so as to %a(se a )arti%(lar )ro,isio& i& a will 8or t$e w$ole will< to fail for la%7 of testame&tar0 %a)a%it0 depending on how much of the will was caused by the insane delusion". ," %n insane delusion which impairs testamentary capacity is one to which the testator adheres against all evidence and reason to the contrary. ii" In re Strittmater ," 3acts. =ill gave everything to the ;ational =omanFs party ;=*"9 decedent had wor!ed as volunteer for ;=* for long time, it was her whole life. #octor testified that she had schi:ophrenia. She never married, and lived with her parents until they died. She was devoted to her parents when they were alive, but after they died, she wrote nasty things about her parents, especially her father. She hated men, wished they would all be !illed and loo!ed forward for the day when women could bear children without men. 8owever, her dealings with people such as male lawyer ? male ban!er were entirely reasonable and normal. 7" 8olding. found that the evidence showed Gincontrovertibly her morbid aversion to men,G and Gfeminism to a neurotic eEtreme.G Therefore, her mental state of paranoia about how evil men were led her to leave her estate to the ;=*. a" ;ote. @ourt ma!es assumptions. %ssumes b'c she hates all men, then she is insane. /ut even if she was insane, does that mean she cannot dispose of her property the way she wants toA e" A WILL IS IN@ALI IF THE INSANE ELUSION 4AUSE OR AFFE4TE , OR MIGH H!"E 4AUSE OR AFFE4TE , THE ISPOSITION OF THE PROPERT2# i" In re Honigman ," 3acts. =ill leaves wife only a life use of her min statutory share, plus B7J--, while giving other members of his family a lot more. =ife objected to probate b'c he was not of sound mind when will made. =ife said he was obsessed with the incorrect belief that his wife was cheating on him. J ' 1)

7" 8olding. @ourt denied probate. It doesn’t matter if there eEisted other reasons why he might have disposed of his property in a specific way $ the will is bad if the insane delusion did or might have affected the disposition. a" I&sa&e +el(sio& ,s# "ista7e $ %n insane delusion is a belief not susceptible to correction by presenting the testator with evidence indicating the falsity of the belief. % mista!e is susceptible to correction if the testator is told the truth. %s a general rule, courts do not reform or invalidate wills because of mista!e although this rule is changing".

NOTE! 4ONSTRU4TI@E TRUST 8IN 4ASES OF FRAU ,
• •

URESS OR UN UE INFLUEN4E<



@onstructive trust is a remedy9 alternative to a will contest. =here the probate court cannot do justice by refusing probate, the will may be probated and then a court with equity powers can impose a constructive trust on one or more of the beneficiaries to remedy the unjust enrichment caused by fraud, duress or undue influence unjust enrichment if devisee permitted to !eep property that otherwise they would not have ta!en but for the wrongful acts". This type of post$probate procedure is much ris!ier than contesting the probate of the will before the property is distributed, since by the time a judgment is obtained, the K may have disposed of the property or not have assets to satisfy the value of the property.

U&+(e I&fl(e&%e
f" /urden of *roof i" *roponent of a will has burden of proving its validity showing due eEecution". The person contesting the will then has the burden of proving undue influence directly or by proving facts that give rise to a presumption of undue influence. The burden then shifts bac! to proponent to negate undue influence. g" PRESU"PTION OF UN UE INFLUEN4E WHEN varying approaches" I" 4ONFI ENTIAL RELATIONSHIP ; INFLUEN4ER PRO4URE WILL ii" 4ONFI ENTIAL RELATIONSHIP ; SUS#I$I%US $IR$UMS !N$ES ," (est. )rd". +L.). 4o&fi+e&tial relatio&s$i) ; s(s)i%io(s %ir%(msta&%es A U&+(e I&fl(e&%e# a" 3actors indicating suspicious circumstances. • the eEtent to which the donor was in a wea!ened condition, physically, mentally, or both, and therefore susceptible to undue influence9 • the eEtent to which the alleged wrongdoer participated in the preparation or procurement of the will or will substitute9 • whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will or will substitute9 • whether the will or will substitute was prepared in secrecy or in haste9 • whether the donorFs attitude toward others had changed by reason of his or her relationship with the alleged wrongdoer9 2 ' 1)

whether there is a decided discrepancy between a new and previous wills r will substitutes of the donor9 • whether there was a continuity of purpose running through former wills or will substitutes indicating a settled intent in the disposition of his or her property9 and • whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair, for eEample, whether the disposition abruptly and without apparent reason disinherited a faithful and deserving family member. 7" In re Will of Moses a" 3acts. Ioses married ) times9 all ) husbands died9 no children. She then had intimate relationship with 8olland an atty" ,J years younger than her. ) yrs before death, she made a will devising almost all her property to 8olland. =ill drafted by another atty who had no connection to 8olland. Hlder sis attac!ed the will on ground of undue influence. 8olland argued she had independent counsel to draft will, who was entirely devoted to her interests. b" 8olding. ;o meaningf&l i&+e)e&+e&t a+,i%e or counsel. %tty !new she was giving substantial property to 8olland rather than her sister, and did not pursue the issue with Ioses. %tty didn’t care who she gave prop to, whatever she wanted. @ourt said it was clear that he did no more than write down what she told him, and therefore Ioses did not really have independent advice or counsel. c" #issent. Ioses was a good businesswoman with strong personality – she !new what she wanted9 she had no relationship with sis. %ttac!s court by saying their decision is b'c she was having a relationship with a much younger man. III" 4ONFI ENTIAL RELATIONSHIP ; INFLUEN4ER RE4- 3ULB OF THE ESTATE ; E4E ENT-S INTELLE4T WAS
WEABENE



," Estate of Lakatosh a" 3acts. J yrs prior to her death, (oger befriended testator who was in her <-s, lived alone, ? was rarely visited by her sister. (oger lived close ? visited her at least daily9 he assisted her around the house ? drove her around, suggesting that she came to depend on him. % few mos. after they met, she gave (oger power of atty *H%", ? eEecuted a new will which gave almost everything to him. %tty who drafted the will was (ogerFs cousin. Dsing the power of atty, (oger unlawfully converted assets from testator’s estate for others’ benefit. 7 yrs later *H% revo!ed. b" 8olding. @ourt finds there was undue influence. • @onfidential relationship $ established by (oseFs dependency on (oger and the power of attorney. • (oger received the bul! of the estate • (oseFs intellect was wea!ened – she was an elderly woman9 helpless ? unable to prevent the consumption of her assets by (oger. #irty home, living in bad environment generally. 7" In re Kaufmann's Will – ,021" #ecedent very rich9 gets away from family ? has an ,,$yr intimate relationship with another man. /asically, they were li!e a married couple ? decedent treated him li!e that including financially. 8e leaves almost everything to his partner. 3amily doesn’t li!e the homoseEual relationship ? objects on grounds of undue influence. @ourt agreed, finding that there was a confidential relationship partner had *H%", plus the disposition was an 4unnatural, insidious influence operating on the wea!$willed, trusting, ineEperienced5 decedent ? his natural warm family attachments had been wea!ened by false accusations against him by his partner. ;ote. this is prob only b'c of the homoseEual relationship that people weren’t comfortable with, more than anything else. < ' 1)

h" ELE"ENTS OF UN UE INFLUEN4E! 8mo+er& ,iew< i" SUS4EPTI3ILIT2 $ That the testator was susceptible to undue influence, ii" "OTI@E $ That the influencer had the disposition or motive to eEercise undue influence, iii" OPPORTUNIT2 $ That the influencer had the opportunity to eEercise undue influence, and iv" 4AUSATION $ That the disposition is the result of the influence. v" SU3STITUTION C Substitute the will of another for that of the testator ," Sometimes this Jth element is also necessary to prove undue influence, even if prior 1 proven. 7" 'ibber v. Weslo( a" 3acts. #ecedent eEecuted a will at L,9 she was of sound mind and in eEcellent health. 3ran! her son9 an atty", drafted the will per her instruction. =ill gave to 3ran! ? his sister9 but eEpressly disinherited ) grandchildren from deceased son >ulian". #ecedent dies 77 days after eEecuting the will. 3ran! wrote the will and hated >ulian9 he lived neEt door to mom ? had !ey to her home. #ecedent didn’t read'discuss will before signing. 3ran! got a lot more than if grand!ids had also ta!en. =ill also eEplained reasons why grand!ids disinherited – bad relationship. =itnesses testified that decedent often eEpressed her intent to disinherit them. b" 8olding. =ill not invalidated on ground of undue influence. T$e test of (&+(e i&fl(e&%e is w$et$er s(%$ %o&trol was e.er%ise+ o,er t$e mi&+ of t$e testator as to o,er%ome $is free a*e&%0 a&+ free will a&+ to s(/stit(te t$e will of a&ot$er so as to %a(se t$e testator to +o w$at s$e wo(l+ &ot ot$erwise $a,e +o&e /(t for s(%$ %o&trol# %lthough there was a confidential relationship 3ran! is atty", the opportunity always around", and motive he recFd a larger share", there was no proof that 3ran! substituted his mind and will for that of his mother. % lot of evidence suggested she wanted this. i" NoD4o&test 4la(ses $ provides that a beneficiary who contests the will shall ta!e nothing, or a to!en amount, in lieu of the provisions made for the beneficiary in the will. i" #esigned to discourage will contests so no unmeritorious litigation, family quarrels, defamation of testator". /ut, it may also inhibit lawsuits proving forgery, fraud, undue influence – basically nullifying safeguards. ii" Iajority $ enforce no$contest clauses unless there is probable cause for the contest. iii" Iinority $ enforce unless the contestant alleges forgery or subsequent revocation by a later will or codicil, or the beneficiary is contesting a provision benefitting the drafter of the will or any witness thereto. j" /equests to %ttorneys i" Undue Influence $ many courts hold that a presumption of undue influence arises when an attorney$drafter receives a legacy, eEcept when the attorney is related to the testator. The presumption can be rebutted only by clear and convincing evidence provided by the attorney. !" Effe%t of a fi&+i&* of (&+(e i&fl(e&%e i" If part of a will is the product of undue influence, those portions of the will that are the product of such influence may be stric!en and the remainder of the will allowed to stand, if the invalid portions of the will can be separated without defeating the testatorFs intent or destroying the testamentary scheme.

Fra(+
l" ELE"ENTS OF FRAU in the testamentary conteEt" I" E4EPTION AN RELIAN4E ON IT 32 THE TESTATOR II" "ISREPRESENTATION OR FALSE STATE"ENT III" INTENT 32 E4EI@ER TO E4EI@E iv" PURPOSE OF INFLUEN4IN1 THE TESTA"ENTAR2 ISPOSITION in deceiver’s favor" L ' 1)

m" T2PES OF FRAU in the testamentary setting" i" FRAU IN THE IN U4E"ENT – o%%(rs w$e& a )erso& misre)rese&ts fa%ts, %a(si&* testator to e.e%(te a will, to i&%l(+e a )arti%(lar )ro,isio& i& t$e wro&*+oer-s fa,or, or to refrai& from e.e%(ti&* or re,o7i&* a will# ," &Eamples. a" 8 induces H not to eEecute a will in favor of % by promising H that 8 will convey the property to %. %t the time 8 ma!es the promise, 8 has no intent to convey the property to %. 8owever, if 8 did in fact intend to carry out promise, but later changed his mind, no fraud." b" 8usband as!s wife for will so he can destroy it. She holds up an envelope, pretends it contains the will ? burns it. %fter he dies, se probates the will that hadn’t been destroyed, which left her everything. 8usband induced to believe there was a revocation, which is what he wanted. 8eirs here would be entitled to a constructive trust. c" TestatriE eEecutes will leaving everything to >ean. Two days before she dies, @arol tells testatriE >ean is dead @arol !nows >ean is actually still alive", and in response, testatriE, who relies on this, eEecutes a 7nd will, giving @arol everything instead. 8owever, if @arol did not !now >ean was beneficiary, then there might not be a purpose to change the disposition." ;ote. >ean could get a constructive trust here. 7" Puckett v. Krida ,001" – nurses hired to provide care for testator who was in wea!ened condition". ;urses got under will9 family didn’t. ;iece alleged fraud in the inducement. @ourt held there was a confidential relationship b'c of status as nurses, ? one nurse had *H%. They encouraged testator’s false beliefs that family using her ? her money. &vidence of fraud – testator only started believing this after nurses started caring for her, and niece !ept meticulous records of how she handled testator’s money so the beliefs were clearly false". ii" FRAU IN THE EEE4UTION C o%%(rs w$e& a )erso& misre)rese&ts t$e %$ara%ter or %o&te&ts of t$e i&str(me&t si*&e+ /0 t$e testator, w$i%$ +oes &ot i& fa%t %arr0 o(t t$e testator-s i&te&t# ," &Eample. H, who has poor vision, as!s her heir apparent, 8, to bring her the document prepared for her as a will so that she can sign it. 8 brings H a document that is not HFs intended will, !nowing it is not the document H wants. H signs it, believing it to be her will. n" Effe%t of a fi&+i&* of fra(+ $ % provision in a will procured by fraud is invalid, but the remaining portion stands unless the fraud goes to the entire will or the portions invalidated by fraud are inseparable from the rest of the will. #iff from mental capacity where the whole will is void, b'c there can’t be capacity for some parts and not others."

(ress
o" =hen undue influence becomes overtly coercive, it becomes duress. p" (est )d" *rop +L.) c". A +o&ati,e tra&sfer is )ro%(re+ /0 +(ress if t$e wro&*+oer threatene) to )erform or )i) perform a wro&*f(l a%t t$at %oer%e+ t$e +o&or i&to ma7i&* a +o&ati,e tra&sfer t$at t$e +o&or wo(l+ &ot ot$erwise $a,e ma+e# M" RE"E 2 OF 4ONSTRU4TI@E TRUST IS A@AILA3LE WHERE FRAU PRE@ENTS TESTATOR FRO" RE@OBIN1 OL WILL# i" 'atham v. *ather +ivine ,010" ," 3acts. Testator white" died leaving a will that gave most of her estate to 3ather #ivine blac!" K". K was a charismatic religious leader, although some thought he was a fraud, and his church a cult. =ill probated ? prop distributed. Then testator’s cousins Ns" sued K as!ing for a constructive trust on that prop b'c of K’s fraud ? duress. %lleged that testator wanted to revo!e the will she made ? ma!e another giving most to Ns, that testator had another will drawn up but Ks prevented its eEecution via false representation, undue influence, and physical force, and that shortly before her death when testator again said she 0 ' 1)

wanted to eEecute a new will, Ks ? others conspired to and did !ill her, by means of an operation performed on her, w'o !nowledge or consent of family. 7" 8olding. @ourt Ns entitled to a constructive trust. a" This is a fraud in the eEecution9 specifically, a fraudulent nonrevocation. /ut for the fraud of K, the eEisting will would have been revo!ed and the new will eEecuted. In this situation, the so$called nonrevo!ed will is probated, and the relatives must bring a lawsuit see!ing the equitable remedy of constructive trust. b" ;ote. suggested that court rulings here were motivated, at least in part, by racial prejudice against 3ather #ivine ? a belief that his church called a GcultG the by court" was not quite a legitimate religious group.

Tortio(s I&terfere&%e Wit$ E.)e%ta&%0
r" (est. 7d" Torts includes intentional interference with an eEpected inheritance or gift as a valid cause of action. i" Oey *oints to ;ote. ," ;ot recogni:ed widely 7" ;ot a challenge to the probate of a will )" Tort damages compensatory and punitive" available s" Marshall v. Marshall $ L2 yr old testator married 71 yr old %nna ;icole Smith ) yrs after they first met at a strip club, where Smith was a dancer. Testator died ,L mos after they were married. Smith spent heavily, so despite all the money he gave her she needed more. Testator’s relatives bloc!ed access to his money, and she ended up in ban!ruptcy. Smith sued for tortious interference with an eEpectancy, ? court imposed punitive damages on son who restricted her access to the money. i" Test for tortio(s i&terfere&%e. ," % plaintiff must prove. a" the eEistence of an eEpectancy b" a reasonable certainty that the eEpectancy would have been reali:ed but for the interference c" intentional interference with that eEpectancy d" tortious conduct involved with the interference9 and e" damages

EEE4UTION AN FOR"ALITIES
Atteste+ Wills
%"

INTRO U4TION i" T$e F(&%tio& of Formalities! ," (itual 3unction $ Impress upon testator the significance of what is happening 7" &videntiary function $ reliability $ shows there wasnFt fraud'coercion there are witnesses"9 signature in specific location )" @hanneling 3unction $ the benefit of having requirements is piece of mind to testatriE to !now that if you follow requirements, then you !now your will is going to be valid ? in effect 1" *rotective 3unction – more difficult for testator to be ta!en advantage o ii" 4om)ariso& of Stat(tor0 Formalities for Formal Wills ,- ' 1)

Stat(te of Fra(+s 89FGG< 8lan)< =riting Signature %ttestation ? subscription by three witnesses
/"

Wills A%t 89:HG< =riting Subscription signature must be at the 4foot or end5 of will" %ttestation ? signature by two witnesses

U&iform Pro/ate 4o+e 89990< =riting Signature %ttestation ? signature by two witnesses

THE REIUIRE"ENT OF UE EEE4UTION i" E.e%(tio& of a Will, 1e&erall0 ," T$e most /asi% formalities for a& atteste+ will are! a" I& writi&*, b" si*&at(re /0 t$e testatorJ a&+ 8%< attestatio& /0 wit&esses# ii" LINE OF SI1HT @S# 4ONS4IOUS PRESEN4E TEST FOR WITNESS A4BNOWLE 1"ENTKATTESTATION ," 4ONS4IOUS PRESEN4E TEST D )rese&%e is fo(&+ t$ro(*$ site of $eari&* or *e&eral %o&se5(e&%e of e,e&ts t$at t$e wit&ess %om)re$e&+s t$at testator is i& t$e a%t of si*&i&*# a" UP4 L 2DM02# E.e%(tio&! Wills# % will must be. i. in writing, ii. signed by the testator or in the testatorFs name by some other individual in the testator,s conscio&s presence and by the testatorFs direction9 and iii. signed by at least two individuals, each of whom signed (ithin a reasonable time after he witnessed either the signing of the will as described in paragraph 7" or the testatorFs ac!nowledgment of that signature or ac!nowledgment of the will. 7" LINE OF SI1HT C 2o( m(st /e %a)a/le of seei&* t$e wit&ess i& t$e a%t of si*&i&* 8+o &ot $a,e to a%t(all0 see, N(st %o(l+ $a,e see& if 0o( loo7e+ ()< a" In Re roffman ,020" i. Summary. Testator signs will. =itness P, comes into room ? signs in testator’s presence, then leaves. Then =itness P7 comes into room ? also signs in testator’s presence. 8eld will not properly eEecuted, b'c the law relevant here provides that the 4signature shall be made or ac!nowledged in the presence of 7 or more witnesses present at the same time,5 and 4such witnesses shall attest ? shall subscribe the will in the presence of the testator.5 b" Stevens v. $as)orph i. Summary. =ill eEecuted at ban!9 decedent signs in presence of ban! employee notary". &mployee ta!es will for 7 witnesses to sign, at separate times9 each did not see the other nor the testator sign. =ill improperly eEecuted. Statute requires that 4signature shall be made or the will ac!nowledged by him in the presence of at least two competent witnesses, present at the same time9 and such witnesses shall subscribe the will in the presence of the testator! and of each other.G ;o one saw anyone sign9 no communication btwn any of them either. ,. ;ote – if the conscious presence test was used here instead of the line of sight test, the eEecution would have been valid b'c everyone in ban! !new what was going on small town, etc.", and it was within a reasonable time D*@ approach". 7. %lso, argument of substantial compliance was made here, but the court was unwilling to vary from the strict requirements of the law. )" 8Q*H. % typewritten will has in the testator’s handwriting, below the testator’s signature and above the witness’ signatures, the line. 4I give Oaren my diamond ring.5 =ill entitled to probateA #epends when the sentence was added. ,, ' 1)

a" If line added after testator’s signature, will is valid but sentence is not b'c it’s not a duly eEecuted codicil. b" If line added before the testator’s signature. i. Some courts would stri!e the entire will b'c the signature has to be at the end of the will despite the fact that it was written before testator actually signed". ii. Hthers would probate the will and just stri!e the language, especially if the line related to a disposition. iii. Some jur might give effect to the language if it was not related to a disposition but only named an eEecutor, etc.". @" 4O"PETEN42 OF WITNESSES i" THE IUINTESSENTIAL FUN4TION OF A SU3S4RI3IN1 WITNESS IS TO PROTE4T THE TESTATOR FRO" FRAU OR UN UE INFLUEN4E AT THE "O"ENT OF EEE4UTION# THEREFORE, WITNESSES "UST 3E ISINTERESTE SO THAT THE TESTATOR-S 3EST INTERESTS ARE LOOBE AFTER# THIS FUN4TION IS PERFOR"E WHEN THE WILL IS EEE4UTE 8NOT AFTER<# ," Estate of #arsons a" 3acts. 7 of the ) witnesses signing the will at eEecution were named as beneficiaries under the will statute requires 7 witnesses to sign". %fter decedent died ? will was admitted to probate, one of the witnesses filed a disclaimer waiving right to get under the will". =ill contested on grounds that it was not duly eEecuted b'c there was only , disinterested witness – the other 7 got under the will. b" 8olding. @ourt held not a validly eEecuted will b'c the statute requires 7 disinterested subscribing witnesses. The fact that one witness filed a disclaimer after death doesn’t mean anything, b'c the quintessential function of a subscribing witness is performed at the time of eEecution – to ensure there is no fraud or undue influence at the moment of e"ecution. If witnesses subscribing at eEecution are not disinterested, then testator’s interests are not protected at time of eEecution. 7" P(r*i&* Stat(tes $ (se+ to )(r*e a& attesti&* wit&ess of a&0 /e&efit $e or s$e re%ei,e+ (&+er t$e atteste+ will (&less t$e re5(ire+ O of +isi&tereste+ wit&esses also atteste+ to t$e will# This is to prevent interested parties from testifying about the will, since they might not testify truthfully. *urging statutes are also used to protect the testator from fraud'undue influence at the moment when he eEecutes a will, by ensuring that at least 7 people without any financial motive to defraud the testator are present. a" %t least 7 types of purging statutes in eEistence today. i. 3irst !ind of statute li!e the @% statute in Parsons" ta!es from the witness only those benefits that he would have received under the will that eEceed the benefits that would have been received if the will had never been eEecuted. ii. Second !ind of statute requires that any devise to the attesting is voided, such that nothing is ta!en under the will regardless of whether intestacy laws would have provided the witness something". iii. D*@ +7$J-J which some states follow" has done away with purging statutes such that Ga will or provision thereof is not invalid because the will is signed by an interested witness.G This is because witnessing the will is only about you saying the testator signed the will9 so who cares if they get under the will or notA #" EEE4UTIN1 AN SAFE1UAR IN1 WILLS i" Sele%tio& of wit&esses ," Iust be disinterested $ shouldn’t be anyone that benefits under the will 7" Ret ) witnesses maj jur require 7, so ) just in case there’s a problem with one" )" If possibility of will contest'challenge, want witness who is credible ? has !nown testator a long time ,7 ' 1)

ii" Prese&t at E.e%(tio& $ &veryone should be present at time of eEecution all witnesses, the lawyer, testator ? notary, no one else should be there". #oor closed9 no one enters or leaves until ceremony done. iii" Testator Re%o*&itio& of Will & Si*&at(re ," %s! testator. 4Is this your willA5 8ave testator recogni:e will9 ma!e sure that it is the will testator wants to eEecute, and that testator understands it. 7" =itnesses should be positioned so that they can see testator sign. =itnesses don’t need to !now contents of the will. )" Testator signs on bottom of last page, with all pages firmly affiEed together. Rood idea to also initial ? date on each page. The will should also specify how many pages it consists of. iv" Wit&ess Attestatio& ," In Reneral, the %ttestation @lause should say that. a" Three =itnesses i. *resent at the same time ii. 8eard the testatriE declare the document to be her will iii. %nd observed the testatriE sign her will in their presence b" %nd that, then and only then. i. &ach witness did ,. in the presence of each other and the testator and 7. at the request of the testator ii. Sign the will as witnesses. v" SelfDPro,i&* Affi+a,it – typed at end of the will and signed by testator ? witnesses, before a notary, swearing that the will has been duly eEecuted notary then signs ? attaches seal". ," *urpose. so that after testatorFs death, witnesses don’t need to testify to the eEecution of will, b'c already done with the self$proving affidavit. This becomes important if witnesses have died or if they moved far away. %lthough the will is still valid w'o affidavit, it ma!es it easier to probate. 7" SelfDPro,i&* Affi+a,it ,s# Attestatio& – attestation serves as evidence that the testator eEecuted the document9 the affidavit says that all the other formalities were done duly eEecuted". Attestatio& %la(se SelfD)ro,i&* affi+a,its prima facie evidence that the testator voluntarily Sworn statements by eyewitnesses that the will signed the will in the presence of the witnesses has been duly eEecuted permits probate of a will when a witness forgets *erforms all functions of the attestation clause, the circumstances of the willFs eEecution or dies plus has the further effect of permitting probate before the testator #ithout re$uiring the appearance of either #itness the attestant eEpresses the present intent to act as the affiant swears that the will has already been a witness witnessed )" Two types of Self$*roving %ffidavits D*@ + 7$J-1 authori:es both types". a" Hne Step @ombined attestation'affidavit" – the affidavit is part of the will, and both affidavit signed by witnesses, testator ? notary" ? attestation signed by witnesses" are one document, so everyone only signs once, and is attached within the will and conclude the will. b" Two Step – affidavit is attached but not technically part of the will % separate docs". The will is duly eEecuted, as is the attestation clause with witnesses’ signatures" that follows the testator’s signature. %ttached to the eEecuted and attested will, is the self$proving ,) ' 1)

affidavit signed by the testator, the witnesses, and a notary", which is signed after testator signs the will, and after witnesses sign attestation clause. vi" ()li%ates. Testator should not eEecute more than one copy – too many ambiguities might arise as to why this was done vii" After e.e%(tio& ," &Eecuted will should be placed somewhere safe9 let people !now where it is 7" Oeeping with atty – loo!s li!e solicitation b'c client must come bac! to see atty again ? this implies a continuation of the transaction". &" "ISTABE i" STRI4T 4O"PLIAN4E! TO 3E @ALI L2 EEE4UTE , A WILL "UST 4O"PL2 STRI4TL2 WITH THE REIUIRE"ENTS SET 32 STATUTE# ," In re #avlinko,s Estate a" Summary. 8usband ? wife sign each others’ wills by mista!e. =ill practically identical – left property to each other, and to other family members. @ourt refuses probate of will. Statute requires that 4every will shall be in writing and shall be signed by the testator at the end thereof.5 @ourt refuses to vary from the strict requirements of the law, eEplaining that 4once a court starts to ignore, alter, rewrite, or ma!e eEceptions to clear, plain and unmista!able provisions of the SstatuteT in order to accomplish equity and justice in that particular case, the SstatuteT will become meaningless, and the door will be opened wide to countless fraudulent claims which the SstatuteT successfully bars.5 ii" 4URATI@E O4TRINES! SU3STANTIAL 4O"PLIAN4E & HAR"LESS ERRORK ISPENSIN1 POWER ," E@EN IF STATUTOR2 REIUIRE"ENTS ARE NOT "ET, A 4OURT "A2 STILL FIN A WILL @ALI , IF 4LEAR & 4ON@IN4IN1 E@I EN4E IS SHOWN OF TESTATOR-S INTENT, OR THROU1H RELIA3LE E@I EN4E OF A @ALI TESTA"ENTAR2 S4HE"E# a" The rule is designed to cure the inequity caused by strict adherence to formalities. Since the primary purpose of the formalities is to ensure that the document reflects the uncoerced intent of the testator, %om)lia&%e is &ot im)orta&t /e%a(se of t$eir i&$ere&t ,al(e, /(t /e%a(se of t$e p&rposes t$e0 ser,e. (igid insistence on literal compliance often frustrates these purposes, so some courts have allowed probate of technically defective wills. b" 8armless &rror i. UP4 L2DM0H# Harmless Error ,. %lthough a document or ScodicilT was not eEecuted in compliance with SstatuteT, the document or writing is treated as if it had been eEecuted in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute a. the decedentFs will, b. a partial or complete revocation of the will, c. an addition to or alteration of the will, or d. a partial or complete revival of his Sor herT formerly revo!ed portion of the will. ii. Rest# 8H+< Pro)# L H#H# $ % harmless error in eEecuting a will may be eEcused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will. iii. ;ote – called the 4dispensing power,5 The justification is that the purpose of the statute is to protect against fraud. /ut if evident there’s no fraud, then it’s o!. c" In re Sni)e ,1 ' 1)

3acts. 8usband and wife sign each others’ wills by mista!e9 wills were identical eEcept for the differences in names of the donors and beneficiaries on the wills. @ourt admitted will to probate. @ourt eEplained that testamentary intent does not attach to the specific document signed so long as the testator intended to eEecute the will. 8ere, the two wills were practically identical. This clearly evinced a valid testamentary scheme. %lso, no evidence of fraud. ,. ;ote. This case is an eEception $ most courts won’t fiE this. d" In re Will of Rannei. 3acts. The will was 1 pages ? Jth page was a self$proving affidavit. %t the eEecution, the testator signed the 1th page, but the witnesses only signed the Jth page $ the self$proving affidavit. The testator and witnesses all thought they were signing and attesting the will. =ill then notari:ed and all J pgs stapled together. The affidavit stated that each witness signed the will as witnesses in the presence of the testator but this didn’t happen b'c actual will not signed". ii. 8olding. =ill admitted to probate, although it did not adhere to the statutory formalities. @ourt eEplained that the statutory requirements serve an evidentiary function giving court evidence of terms of will ? testamentary intent", a ritual function shows the seriousness of event", and prevents fraud ? undue influence. The signatures on the self$proving affidavits satisfy these requirements. If the witnesses, with the intent to attest, sign a self$proving affidavit, but do not sign the will or attestation clause, clear and convincing evidence of their intent should be adduced to establish compliance with the statute. e" In re Estate of Hall i. Summary. =ill P, eEecuted. ,1 yrs later, testator ? wife want to eEecute a >oint =ill. >oint =ill eEecuted, but without required attesting witnesses present. =ife tears up =ill P, at testator’s direction. @ourt allowed probate of >oint =ill. %lthough formal requirements are lac!ing, there was clear ? convincing evidence that the testator intended to void =ill P, by destroying it and signing the >oint =ill. /y signing the >oint =ill, testator intended to validate it. f" ;ote. #iff btwn testamentary intent intent that it be a will" vs. dispositive intent intent that he wanted her to get".

i.

Holo*ra)$i% Wills
3"

A TESTA"ENTAR2

ISPOSITION NEE

NOT 3E SET OUT IN A FOR"AL O4U"ENTS#

O4U"ENTJ A LETTER 4AN ALSO 3E A @ALI

HOLO1RAPHI4 WILL, AS 4AN A @ARIET2 OF OTHER

i" .immel,s Estate ," 3acts. Testator mailed a letter to 7 of his children. The letter was written in OimmelFs handwriting, signed at the end G3ather,G dated #ec ,7, ,07,, and contained the following. GI have some very valuable papers I want you to !eep fore me so if enny thing happens all Sof my propertyT goes to Smy sonsT Oepp this letter loc! it up it may help you out.G Oimmel died the same day he sent the letter. 7" 8olding. The @ourt probated the letter as a holographic will. @ourt focused on the issue of testamentary intent to create a will". a" 8ere, the words, Gif enny thing happens,G strongly support the idea of testamentary intent. b" %lso, he signed it G3ather.G =hen ta!en in conteEt of the letter, G3atherG was intended as a completed signature. ii" ;ote on @onditional =ills – 4If E happens, I want Q to get everything.5

,J ' 1)

," Iost courts will presume the condition does not mean that the will is to be probated onl& if the stated event happens but is merely a statement of the inducement for eEecution of the will. g" 1ENERALL2, A HOLO1RAPHI4 WILL! i" "UST 3E IN THE TESTATOR-S HAN WRITIN1, ," EETENT WRITTEN IN THE TESTATOR?S OWN HAN WRITIN1! a" First 1e&eratio& Stat(tes D Re5(ire+ t$at $olo*ra)$s /e e&tirel0, writte&, si*&e+, a&+ +ate+ i& t$e $a&+writi&* of t$e testator# "ere S(r)l(sa*e Estate of Mulkins" – if t$ere is &o i&te&t to i&%or)orate t$e )ri&te+ material, %o(rts will treat t$e )ri&te+ )ortio& as mere s(r)l(sa*e, i*&ore it, & )ro/ate o&l0 t$e $a&+writte& )ortio&s# This is b'c the surplusage doesn’t change'affect the disposition that is handwritten. The test is if the holograph can be understood without the printed provisions. ii. =ith these statutes, courts have strictly enforced the requirement that holograph is completely in testator’s handwriting. &Eamples of holographs struc! down. ,. =here only , or 7 printed words 7. =here testator stamped the named of his home twice within the teEt ). =here testator too! handwritten will to local ban!er, who added some mar!ings with the consent of the testator9 not all in testator’s handwriting b" Se%o&+ 1e&eratio& Stat(tes 899F9 UP4< D Si*&at(re & material provisions of t$e $olo*ra)$ m&st /e i& t$e testator?s $a&+writi&*# 4om)letel0 i*&ore )ri&te+ la&*(a*e# i. =hen language that indicates testamentary intent is printed rather than written by testator. ,. Some %o(rts $ol+ t$at a will %a&&ot /e a+mitte+ to )ro/ate if t$e )ri&te+ wor+s are essential to establish testamentar- intent 8a&+ are t$erefore material )ro,isio&s<# a. Estate of 'ohnson $ testator wrote his will on a stationerFs form, filling in certain blan!s in his own handwriting and then signing it. The handwritten portion, on its own, did not ma!e sense, and did not show testamentary intent. 2# Ot$er %o(rts $ol+ t$at $a&+writte& )ro,isio&s ma0 +raw testame&tar0 %o&te.t from /ot$ t$e $a&+writte& a&+ )ri&te+ la&*(a*e# No &ee+ to i*&ore t$e )re)ri&te+ wor+s w$e& t$e testator %learl0 +i+ &ot# a. Estate of Muder $ will handwritten on printed will form, signed and notari:ed but with only one witness. ;o issue as to the testatorFs intent. % testator who uses a preprinted form, and in his own handwriting fills in the blan!s by designating his beneficiaries and apportioning his estate among then and signs it, has created a valid holographic will. c" T$ir+ 1e&eratio& Stat(tes 89990 UP4< D A will is ,ali+ as a $olo*ra)$i% will, w$et$er or &ot wit&esse+, if t$e si*&at(re a&+ material portions of t$e +o%(me&t are i& t$e testator?s $a&+writi&*# Also, t$e UP4 e.)li%itl0 allo(s e/trinsic evi)ence to /e (se+ to esta/lis$ testame&tar0 i&te&t 8allowe+ i& for %o&te.t<# II" IN4LU E THE TESTATOR-S SI1NATURE, ," In almost all states permitting holographs, a holograph may be signed at the end, at the beginning, or anywhere on the will, but if not signed at the end there may be doubt about whether the decedent intended his name to be a signature. iii" 3E ATE , AN ," some jurisdictions require this also be in testator’s handwriting ,2 ' 1) i.

iv"

"UST ESTA3LISH TESTA"ENTAR2 INTENT#

," In re Estate of .&ralt a" 3acts. Testator, married, had a longtime affair with another woman. 8e was her primary source of financial support. In ,0L0 he drafted a holographic will bequeathing Iontana property to lover. In ,001, he eEecuted a formal will giving to wife ? !ids, which included no mention of the Iontana property. In ,00<, he gave lover money ? sold part of Iontana prop to her. 8e planned to ma!e another such transaction, but he got sic! before he could do so. In hospital, he wrote a letter to lover indicating his intent to give her the rest of the Iontana property, but died before he could arrange it. b" 8olding. @ourt allows the letter in as a codicil9 the evidence clearly establishes this was his testamentary intent. 8e intended to transfer Iontana prop to lover. &vidence to support this. ," long term relationship, 7" he was her main financial support for her ? her family, )" previously transferred part of the property to her for no real consideration, 1" sent lover letter indicating he wanted her to have the property. h" ;ote. Hnly U of states recogni:e holographic wills. i" ;Q only recogni:es in 7 situations. ," mariners at sea, and 7" soldiers in armed combat. ii" States that don’t recogni:e holographic wills. ," U of those states will recogni:e a holographic if it was created in a jurisdiction that does recogni:e it. 7" If state has adopted D@@ 7$J-), may still recogni:e a handwritten will through the dispensing power but not as a holograph".

RE@O4ATION
Re,o%atio& /0 Writi&* or P$0si%al A%t
a" RE@O4ATION 32 SU3SEIUENT WRI ING EEE4UTE WITH TESTA"ENTAR2 FOR"ALITIES I" 4O""ON LAW REIUIRE"ENTS! 89< INTENT TO RE@OBE 7" A SU3SEIUENT WILL OR 4O I4IL, OR ANOTHER WRITIN1 E4LARIN1 AN INTENTION TO RE@OBE, AN EEE4UTE IN THE "ANNER IN WHI4H THE WILL WAS REIUIRE TO 3E EEE4UTE see (hompson v. Ro&all, infra" ii" D*@ +7$J-< a" ," $ % will or any part thereof is revo!ed . . .by eEecuting a subsequent will that revo!es the previous will or part eEpressly or by inconsistency. iii" (evocation by Inconsistency ," % subsequent will wholly revo!es the previous will by inconsistency if the testator intends the subsequent will to replace rather than supplement the previous will. 7" % subsequent will that does not eEplicitly revo!e the prior will but ma!es a complete disposition of the testator’s estate is presumed to replace the prior will and revo!e it by inconsistency. )" If the subsequent will does not ma!e a complete disposition of the testator’s estate, it is not presumed to revo!e the prior will but is viewed as a codicil. b" RE@O4ATION 32 A #H0SI$!' !$ SU4H AS ESTRO2IN1, O3LITERATIN1, OR 3URNIN1 THE WILL i" 4O""ON LAW REIUIRE"ENTS! ," INTENT TO RE@OBE, 7" PERFOR"AN4E OF THE RE@O4ATOR2 A4T 32 THE TESTATOR OR IN THE TESTATOR-S PRESEN4E 8=LINE OF SI1HT>< 32 4UTTIN1, TEARIN1, 3URNIN1, O3LITERATIN1, 4AN4ELIN1, ESTRO2IN1 THE WILL, OR THE SI1NATURE. S;ote. D*@ only as!s for conscious presenceT ,< ' 1)

1a2 Harrison v. Bir) i. 3acts. #ecedent eEecuted a will in ,0L0. %tty retained the will and the duplicate original given to decedent. In ,00,, decedent called her atty and said she wanted to revo!e her will. %tty then tore the will into 1 pieces and sent it to decedent along with a letter eEplaining what had been done, and said G%s it now stands, you are without a will.G =hen decedent died, the letter from the atty was found, but the 1 pieces of the will were not. ii. 8olding. Dnder @6, revocation of the will must be done by testator or in the testator’s presence. So the act of tearing up the will did not revo!e it. 8owever, there is a presumption that the will has been revo!ed per the lost wills doctrine, since it cannot be found ? it was last in testator’s possession. ,. LOST WILLS O4TRINE D If t$e e,i+e&%e esta/lis$es t$at a )erso& $a+ )ossessio& of $er will )rior to $er +eat$, /(t t$e will is &ot fo(&+ amo&* $er )erso&al effe%ts after $er +eat$, a )res(m)tio& arises t$at s$e +estro0e+ t$e will# A++itio&all0, if t$e %o)0 of a will t$at is i& t$e testator-s )ossessio& is +estro0e+, a )res(m)tio& arises t$at t$e testator re,o7e+ t$e will a&+ all +()li%ates t$at ma0 e.ist# 7. *robate of 6ost =ills a. If a will is lost, destroyed w'o consent of testator, or destroyed w' testator’s consent but not in compliance with the revocation statute, it can still be admitted into probate if its contents are proved by clear ? convincing evidence. b. Some jurisdictions don’t li!e this approach, and statutes prohibit the probate of a lost or destroyed will unless the will was in e"istence at the testatorFs death and destroyed thereafter" or was fraudulently or mista!enly destroyed during the testatorFs life. 8H< THE PH2SI4AL A4T "UST AFFE4T THE WRITTEN PORTION OF THE WILL a" Re,o%atio& /0 4a&%ellatio&! If writte& wor+s are to /e (se+ for t$e )(r)ose of re,o7i&* a will, t$e0 m(st /e so )la%e+ o& t$e will as to )$0si%all0 affe%t t$e writte& )ortio&J merel0 writi&* o& /la&7 )arts of t$e )a)er is &ot e&o(*$# @ancellation includes 4any act which would destroy, revo!e, recall, do away with, overrule, render null and void, the instrument.5 i. hompson v. Ro-all ,. 3acts. #ecedent eEecuted a will, then ,, days later eEecuted a codicil. 1 days after that, decedent decided will should be destroyed. Hn the bac! of the will, someone else not decedent" wrote that the will is Gnull and void,G and mentioned reason for not actually destroying will was to !eep as reference. #ecedent signed and dated this9 a similar note was made on the bac! of the codicil. 7. 8olding. a. (evocation by eEecution of subsequent will – the notations on the bac! must have been a properly eEecuted will or codicil. Since no witnesses, not an attested will. Since not completely in testator’s handwriting, not a holograph. So not revo!ed this way. b. (evocation by physical act – the will was in no way destroyed. c. (evocation by cancellation – ;o. (evocation by cancellation contemplates mar!s or lines across the written parts of the instrument or a physical defacement, or some mutilation of the writing itself, with the intent to revo!e. ;ull and void written on a blan! part of the will on the bac!". ,L ' 1)

b" BU , UP4 L 2DM0G! G% burning, tearing, or canceling is a Frevocatory act on the will,F w$et$er or &ot t$e /(r&, tear, or %a&%ellatio& to(%$e+ a&0 of t$e wor+s o& t$e will.G 8owever, the words of cancellation must be written on the will itself, not on another document. c" Re,o%atio& of a )$oto%o)0 of t$e will is &ot a ,ali+ re,o%atio&# i" 8owever, if evidence of intent to revo!e, court may impose a constructive trust In Estate of (olin". d" Partial Re,o%atio& /0 P$0si%al A%t i" D*@ + 7$J-< and many states allow partial revocation by physical act. ii" I& t$e states t$at +o&-t allow )artial re,o%atio& /0 )$0si%al a%t, a will %a&&ot /e re,o7e+ i& )art /0 a& act of re,o%atio&J it %a& o&l0 /e re,o7e+ /0 a s(/se5(e&t i&str(me&t# ," (easons for prohibiting partial revocation by physical act. a" @anceling a gift to one person necessarily results in someone else ta!ing the gift, and this Gnew giftG $ li!e all bequests $ can be made only by an attested writing. b" *ermitting partial revocation by physical act offers opportunity for fraud. i. The person who ta!es the Gnew giftG may have been the one who made the mar!ings. 7" If partial revocation by physical act is not recogni:ed, the will must be admitted to probate in the form in which it was originally eEecuted if the original language can be ascertained. iii" &Eample. ," T’s will says 4I bequeath B,--- to my nephew, @harles /la!e.G T crosses out B,--- and substitutes B,J--. T writes initials and date in margin. a" If state does not permit partial revocation by physical act. i. If they don’t permit partial revocations, then they will just ignore the handwritten part. Therefore, nephew gets B,---. b" If the state permits partial revocation by physical act. i. The typewritten will B,--- is revo!ed. ;ephew doesn’t get the B,---. /ut he doesn’t get the B,J-- either b'c itFs considered a new gift which has to be duly attested.

RR! e)e&+e&t Relati,e Re,o%atio& a&+ Re,i,al
RR! IF THE TESTATOR PURPORTS TO RE@OBE HIS WILL UPON A "ISTABEN ASSU"PTION OF LAW OR FA4T, THE
RE@O4ATION IS INEFFE4TI@E IF THE TESTATOR WOUL NOT HA@E RE@OBE HIS WILL HA HE BNOWN THE TRUTH#

RR s(stai&s a re,o7e+ *ift if a testator %a&%els or +estro0s a will wit$ a )rese&t i&te&tio& of ma7i&* a &ew o&e imme+iatel0 as a s(/stit(te a&+ eit$er t$e &ew will is &ot ma+e or it fails of effe%t for a&0 reaso&# W$e& t$e *ift fails, t$e law )res(mes t$at testator wo(l+ )refer t$e ori*i&al will o,er i&testa%0, a&+ e,i+e&%e of i&te&t is %r(%ial# 'a$roi/ v. Senecal $ TestatorFs will left part of residuary to nephew. Then, she eEecuted a codicil, revo!ing the previous residuary clause, ? replacing it with an identical one, eEcept that she used nephewFs given name, rather than his nic!name as in the will. *roblem was that the codicil was not properly eEecuted. #(( applies here. It’s clear that the only reason for the change was to clarify the name of the nephew. The testatorFs intent to revo!e the will was conditioned upon the clarifying terms of the codicil to ma!e sure nephew gets, using his legal name" and not to void the eEisting gift. Therefore, the testator would prefer revival. If a testator re,o7es a later will (&+er t$e mista7e& /elief t$at /0 +oi&* so a )rior will is rei&state+, RR a))lies a&+ re&+ers t$e re,o%atio& i&effe%ti,e a&+ t$e later will is a+mitte+ to )ro/ate# Estate of !lb&rn D Testator created =ill P,. Then she eEecuted =ill P7 which eEplicitly revo!ed =ill P, revocation by subsequent writing". Then she decides to destroy =ill P7, intending to bring bac! =ill P, mista!en belief that this would happen". #(( applies, and =ill P7 is revived. %" RE@I@AL i" iffere&t A))roa%$es! ,0 ' 1)

," 8E&*lis$ 4L< Will 9 is &ot re,o7e+ (&less Will 2 remai&s i& effe%t (&til t$e testator-s +eat$# So, it’s not necessary to revive b'c =ill , was never revo!ed only at death, ? then can’t be revived anyway". 7" 8"aN 4L< Will 2 re,o7es Will 9 w$e& Will 2 is e.e%(te+# If Will 2 is t$e& re,o7e+, Will 9 is re,i,e+ if e,i+e&%e t$is was t$e testator-s i&te&t# )" 8"i& 4L< C Will 2 re,o7es Will 9 w$e& Will 2 is e.e%(te+# Will 9 %a&&ot /e re,i,e+ (&less +(l0 reDe.e%(te+ or re)(/lis$e+ /0 a later +(l0 e.e%(te+ will# 8P< UP4 L 2DM09 a" If revocation of =ill 7 by physical act. • If =ill 7 wholly revo!es =ill ,, =ill , remains revo!ed unless it is revived. The =ill , is onl& revived if evidence shows this was the testator’s intent. • If =ill 7 partly revo!es =ill ,, the revo!ed part of =ill , is revived unless evidence that testator’s did not intend this. b" If revocation of =ill 7 by subsequent writing. • &ither wholly or partly" If =ill 7 that revo!ed =ill , is then revo!ed by =ill ), the =ill , remains revo!ed, unless it is revived. =ill , is onl& revived by the terms of =ill ). ii" &Eamples. ," T gives / B,--9 B,-- is crossed out ? changed to B7---. a" If the jurisdiction recogni:es partial revocation, / would not get anything. /ut you might bring bac! the =ill , giving / B,--" with #((. iffere&t 4ommo& Law a))roa%$es! • ,. Iin" =ill , is not revo!ed unless =ill 7 remains in effect until the testatorFs death. Therefore, revival of =ill , is not necessary. 7. Iaj" =ill 7 revo!es =ill , at the time of =ill 7Fs eEecution and =ill , can be revived if the testator so intends. Iost commonly followed. ). Iin" =ill 7 revo!es =ill , at the time of =ill 7Fs eEecution but cannot be revived unless duly eEecuted or republished.

Re,o%atio& /0 O)eratio& of Law! 4$a&*e i& Famil0 4ir%(msta&%es
b" i,or%e! i" Dnder @6 – only applies to wills, not other nonprobate transfers life ins policies, etc." ," Iaj" –revo!es any provision in decedent’s will for the divorced spouse 7" Iin" – revocation occurs only if accompanied by a property settlement ii" D*@ – applies to nonprobate transfers as well as wills ," (evo!es any provision giving to divorced spouse, plus relatives of the divorced spouse c" "arria*e! i" Iaj ? D*@" $ If testator eEecutes a will, and subsequently marries, the will is revo!ed to the eEtent of the spouse’s intestate share spouse will get what they would have gotten under intestacy", unless evidence that indicates testator intended otherwise. d" 3irt$ of 4$il+re&. i" Iin @6" – marriage followed by birth of issue revo!es a will eEecuted before marriage ii" Iaj" – *retermitted @hild Statutes. If a child is born after eEecution of parent’s will, and has not been provided in the will, the child will get a share in the parent’s estate. So, it is a revocation of the will to the eEtent of the child’s share.

7- ' 1)

4O"PONENTS OF A WILL
I&te*ratio& of Wills
%"

ALL PAPERS PRESENT AT THE TI"E OF EEE4UTION, INTEN
THE WILL#

E

TO 3E PART OF THE WILL, ARE INTE1RATE

INTO

i" In re Estate of )eale – Testator dictated will to his secretary9 will consisted of ,1 pages. Testator then too! the ) copies of the will, and had witnesses sign them. %ll pages had testator’s initials. Testator then had secretary re$type page ,7 and ,) with some changes. Those pages also had testator’s initials. @ourt held that they would admit the will as it eEisted before the changes were made, b'c pages ,7 and ,) were not present at eEecution. ii" I&te*ratio& %a& /ri&* i& a +o%(me&t t$at $as &ot /ee& +(l0 e.e%(te+#

Re)(/li%atio& /0 4o+i%il
A WILL IS TREATE
AS IF IT WERE EEE4UTE WHEN ITS "OST RE4ENT 4O I4IL WAS EEE4UTE

, WHETHER OR NOT THE
3E

4O I4IL EEPRESSL2 REPU3LISHES THE PRIOR WILL, UNLESS THE EFFE4T OF SO TREATIN1 IT WOUL IN4ONSISTENT WITH THE TESTATOR-S INTENT#

iii" Re)(/li%atio& a))lies o&l0 to a )rior ,ali+l0 e.e%(te+ will, while incorporation by reference can apply to incorporate into a will language or instruments that have never been validly eEecuted. iv" In some jurisdictions that don’t recogni:e incorporation by reference, courts have sometimes used republication to give effect to will that are invalid for some reason other than faulty eEecution. ," ;ew Qor! – generally doesn’t permit incorporation of unattested documents into a will, but a codicil can republish thus giving testamentary effect" a will that was invalid b'c of mental capacity or undue influence, but a codicil cannot republish a instrument that was never duly eEecuted.

II#

I&%or)oratio& /0 Refere&%e
a" UP4 L 2DM90! A WRITIN1 IN EEISTEN4E WHEN A WILL IS EEE4UTE
THE LAN1UA1E OF THE WILL "ANIFESTS THIS INTENT AN I ENTIFI4ATION# "A2 3E IN4ORPORATE 32 REFEREN4E IF ES4RI3ES THE WRITIN1 SUFFI4IENTL2 TO PER"IT ITS

i" A )ro)erl0 e.e%(te+ will ma0 i&%or)orate /0 refere&%e i&to its )ro,isio&s a&0 +o%(me&t or )a)er &ot so e.e%(te+ a&+ wit&esse+, if it (as in e/istence at the time of the e/ec&tion of t$e will a&+ is i+e&tifia/le /0 %lear a&+ satisfa%tor0 )roof as t$e )a)er referre+ t$erei&# ," $lark v. Greenhalge – testator eEecuted will in ,0<<, naming her cousin as eEecutor. The will left everything to her cousin, eEcept for items she designated by a memo ? as she otherwise wished this was referred to in the will". Iemo was written in ,0<7, and modified in ,0<2. She also had a noteboo! where she made such entries. Hne of the entries in noteboo! gave a valuable painting to her friend9 evidence that this was entered in noteboo! in ,0L-. In ,0L-, testator eEecuted 7 codicils to her will. =hen she died, her cousin refused to give the painting to her friend. The court held that the noteboo! was incorporated by reference in the terms of the will. %lthough the document was not in eEistence at the time she eEecuted her will, the court said the codicil was a republishing of the will, giving it effect in ,0L-, so the noteboo! predates the will, and is therefore incorporated by reference. ii" UP4 L 2DM9H# A will ma0 refer to a writte& stateme&tKlist to +is)ose of )erso&al )ro)ert0 t$at is &ot s)e%ifi%all0 +is)ose+ of i& a will eEcept money". The writing must be signed by the testator and must describe the items and devisees with reasonably certainty. The writing may be written before or after eEecution of will, may be altered, ? may have no significance apart from its effect on the dispositions made by the will. iii" 3ohnson v. 3ohnson – testator typed his will – not attested, not dated, not duly eEecuted. Then at the bottom, in his own handwriting, writes 4to my brother I give B,- only. This will shall be 7, ' 1)

complete unless hereinafter altered, changed or rewritten.5 8e signs ? dates it this would be a valid holograph". @ourt says this is a codicil that republishes the typewritten will, ma!ing the typewritten document a valid will. ," Note. *rof says the law is wrong here – a valid codicil only republishes a validly eEecuted will. % codicil doesn’t create a will. It might have been possible to say the handwritten portion is a holographic will which incorporates by reference the typewritten portion.

III#

A%ts of I&+e)e&+e&t Si*&ifi%a&%e
a" A will ma0 +is)ose of a )ro)ert0 /0 refere&%e to a%ts or e,e&ts t$at $a,e si*&ifi%a&%e se)arate a&+ a)art from t$e effe%t of t$eir +is)ositio& ma+e i& t$e will# This is true even though the phrasing of the will leaves it in the testator’s power to alter the beneficiaries or the property by a non$testamentary act. i" &Eamples. ," T’s will devises 4the automobile I own at my death5 to /. %t time will is eEecuted, T owns a Toyota worth B1,---. T then buys a @adillac worth B1-,---, then dies. / gets the @adillac. =hile T’s act in buying the @adillac had the practical effect of increasing the gift to /, it is unli!ely that this is what motivated the purchase9 more li!ely that T bought @adillac b'c T wanted a @adillac. ii" UP4 L 2DM92# E,e&ts of I&+e)e&+e&t Si*&ifi%a&%e ," % will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the eEecution or the will or before or after the testator’s death. The eEecution or revocation of another individual’s will is such an event.

4ONSTRU4TION OF WILLS
I# "ista7e or Am/i*(o(s La&*(a*e
a" Tra+itio&al! T$e Plai& "ea&i&* R(le i" THE PLAIN "EANIN1 OF A WILL 4ANNOT 3E ISTUR3E 32 EETRINSI4 E@I EN4E THAT ANOTHER "EANIN1 WAS INTEN E # ONL2 WHEN THERE IS A"3I1UIT2 4AN EETRINSI4 E@I EN4E 3E A "ITTE # ," If there is ambiguity, the burden lies on the contestant of the will to prove by a preponderance of the evidence that the T meant otherwise. 7" T$e %o(rt will &ot reform a mista7e& term i& t$e will to refle%t t$e testator-s i&te&t# a" Mahone- v. Grainger –testator went to atty to draft will and told him she wanted to give to her 7J cousins, for all to share. %tty drafted will to say to her 4heirs at law.5 8er only legal heir was her aunt, though, so the cousins couldn’t ta!e. @ourt held it will not bring in eEtrinsic evidence that testator meant her cousins. The will document is clear ? there is no ambiguity with what 4heirs at law5 means, so court will not loo! at eEtrinsic evidence. b" In Estate of *mith – testator left to 4*erry Ianor Inc.5 *erry Ianor was a nursing home at the time of eEecution. *erry Ianor, Inc. then sold the nursing home to another corp.9 nursing home still called *erry Ianor. The bequest went to the corp., although testator intended it go to the nursing home. @ourt says since there’s no ambiguity on the face of the will, eEtrinsic evidence to show testator’s intent eEcluded. 8H< Pate&t Am/i*(it0 ,s# Late&t Am/i*(it0 a" Pate&t am/i*(it0 C a& am/i*(it0 t$at a))ears o& t$e fa%e of t$e will# Increasingly, eEtrinsic evidence is allowed to aid in interpreting a patent ambiguity, although some jurisdiction still won’t allow eEtrinsic evidence in. 77 ' 1)

• &E. will leaves a specific portion of estate to %, then leaves entire estate to /. b" Late&t am/i*(it0 C a& am/i*(it0 t$at +oes &ot a))ear o& t$e fa%e of t$e will /(t ma&ifests itself w$e& t$e terms of t$e will are %arrie+ o(t# Hral declarations of intent to scrivener of will admitted in most jurisdictions scrivener eEception". • 7 types of latent ambiguity. ,. &quivocation $ =hen a will clearly describes a person or thing, but two or more people eEactly fit that description. &Etrinsic evidence of direct eEpressions of testator’s intent allowed b'c it does not add anything to the will, it just made the terms more specific. 7. =hen no person or thing eEactly fits the description, but two or more people or things partially fit the description. more common" 1" Perso&al (se e.%e)tio& – If eEtrinsic evidence shows that testator always referred to a person in an idiosyncratic manner, the evidence is admissible to show that the testator meant someone other than the person with the legal name of the legatee. a" Mosele& v. oodman – Testator always referred Trimble as Irs. Ioseley, b'c her husband wor!ed at Ioseley’s cigar store. @ourt allowed the eEtrinsic evidence to mean Trimble, not the actual Irs. Ioseley – the wife of the store’s owner. b" Lea&i&* Towar+s Reform! A+mitti&* E.tri&si% E,i+e&%e to 4orre%t "ista7es WKO Reformi&* i" A 4OURT HAS NO POWER TO 4ORRE4T OR REFOR" A WILL OR 4HAN1E AN2 OF THE LAN1UA1E THEREIN 32 SU3STITUTIN1 OR A IN1 WOR S, 3UT "A2 ISRE1AR O3@IOUSL2 "ISTABEN REFEREN4ES WHEN NE4ESSAR2# ," !rnheiter v. !rnheiter – will referred to the testator’s interest in 4)-1 8arrison %venue,5 but testator did not have any interest in )-1, but actually ),< 8arrison %venue. @ourt will not reform fiE" the mista!e on the will. Instead, though, @ourt scratched out the )-1, and so it said 4my interest in 8arrison %venue,5 which was sufficient to identify the property. 7" Estate of i++s – =ill leaves property to (obert '. Orause, but the person testator intended to leave to was (obert W. Orause. %lthough court said you cannot reform a will and that there was no ambiguity in the will, it still corrected the mista!e, eEplaining that small things li!e this are susceptible to mista!e, so just disregard the middle initial, and the intended beneficiary is clear the > guy was a stranger". c" O)e&l0 Reformi&* Wills for "ista7e I" IF A S4RI@ENER?S ERROR HAS "ISLE THE TESTATOR INTO EEE4UTIN1 A WILL ON THE 3ELIEF THAT IT WILL 3E @ALI , EETRINSI4 E@I EN4E OF THAT ERROR IS A "ISSI3LE TO ESTA3LISH THE INTENT OF THE TESTATOR# ," Erickson v. Erickson – Testator eEecuted will 7 days before getting married. /y law, the will is revo!ed once married, unless thereFs a contingency clause in the will. The will specifically mentioned that his property would go to the wife he was about to marry. The atty who wrote the will !new the state law, but didn’t provide a provision in the will addressing it. @ourt held that a scrivener’s error that has misled the testator into eEecuting a will on the belief that it will
be valid is similar to relying on a fraudulent statement, so eEtrinsic evidence of that error is admissible.

ii" (est. )d *rop.. L 92#9# Reformi&* o&ati,e o%(me&ts to 4orre%t "ista7es ," %n unambiguous donative document may be reformed to conform the test to the donor’s intent if it can be established by clear and convincing evidence ," that a mista!e of fact or law, whether in eEpression or inducement, affected specific terms of the document9 and 7" what the donor’s intent was. iii" Some %o(rts $a,e $el+ a ,ali+l0 e.e%(te+ will to /e i&,ali+ /K% of e.tri&si% e,i+e&%e t$at testator +i+ &ot i&te&t to e.e%(te t$e will# ," ,leming v. Morrison – testator formally eEecuted a will leaving property to a girl in his will with the intention to tric! her into sleeping with him. @ourt said b'c the lawyer !new the will 7) ' 1)

was drafted only for that reason and that testator did not intend to actually give her anything, court held will invalid.

II#

La)se! eat$ of 3e&efi%iar0 3efore eat$ of Testator
a" I&tro+(%tio& i" TO TABE UN ER A WILL, THE E@ISEE "UST SUR@I@E THE TESTATOR# IF A E@ISEE OESN-T SUR@I@E THE TESTATOR, THE E@ISE LAPSES 8FAILS<# ," @oi+e+ *ifts are treate+ t$e same as la)se+ *ifts a" 6apse – death of beneficiary before testator b" Coid $ invalid gift to dog" or if beneficiary dead at time of eEecution ii" There are all default rules that apply if the will does not provide what happens when a devisee predeceases the testator. b" A&al0sis i" ETER"INE WHAT T2PE OF 1IFT IT IS# ," *pecific $ % specific thing my house, my car, m& ,-- shares of RI stoc!, all the money in my ban! account" 7" 1e&eral $ Dsually money B,,---, a car, ,-- shares of RI stoc!" )" emo&strati,e – 8ybrid9 general gift satisfied from a particular fund or source of property. 4I give B,,--- to # to be paid from the sale of my house on @herry 6ane.5" 1" Resi+(e – the rest of the property that has not been distributed J" 4lass 1ift – disposition to beneficiaries described as a group label, not by specific names9 membership in class may fluctuate 4to my children,5 etc. a" 1e&erall0, &ami&* a& i&+i,i+(al i& a /e5(est )re,e&ts t$e *ift from /e%omi&* a %lass *ift# b" +a(son v. 0&c&s – =ill leaves property as follows. U to nephew =ilson, U to nephew /urtle9 there is also a residuary clause. /urtle dies before testator. If class gift, all goes to =ilson other class members"9 if not, then to residuary. @ourt says this is not a class gift b'c she specifically stated the names of the nephews that would get. So share goes to residuary. II" 4O""ON LAW ," If *ift is s)e%ifi%, *e&eral or +emo&strati,e V *oes to resi+(e or if &o resi+(e, to i&testa%0 7" If *ift is resi+(e Q la)se+ )art to i&testa%0 8&o resi+(e of resi+(e r(le< a" Estate of R&ssell – Testator left everything to a close friend @hester and her dog (oEy. 6eft jewelry to niece Reorgia. @ourt says testator intended to leave entire estate to @hester ? (oEy in equal shares, but the gift to (oEy is void b'c a dog can’t ta!e, so it lapses. (oEy’s share then goes to intestacy not to @hester, the other residuary". ;iece is only heir, so she gets. )" If %lass *ift Q to s(r,i,i&* mem/ers of t$e %lass not intestacy" III" ANTIDLAPSE STATUTES ," First, +etermi&e w$et$er a&tiDla)se stat(e a))lies! a" T$ere m(st /e a )rote%te+ relatio&s$i) wit$ t$e testator • Iaj – devisee is a descendant of testator ,. Some also permit testatorFs siblings, other relatives, or relative of spouse but not spouse" • 0 states – no requirement for protected relationship • D*@ – grandparents ? lineal descendants of grandparents ,. ,00- D*@ also includes stepchildren b" T$ere is a s(/stit(te ta7er 71 ' 1)

• Iaj – lineal descendants surviving issue of deceased devisee" • ) states allow any heir Iowa, Iaryland, ;ew 8ampshire" • D*@ – issue of devisee who survive testator by ,7- hours c" T$ere are &o e.)ress wor+s of s(r,i,ors$i) t$at )re%l(+e (se of a&tiDla)se stat(te • !llen v. alle- $ Testator wrote her will Gto my living brothers and sisters.G %t time she eEecuted the will, she had J siblings. %t time of death, all siblings had predeceased her eEcept one brother. The other siblings left surviving children. So if anti$lapse applied, the siblings’ issue would get too9 otherwise only brother gets. @ourts says the language 4living5 are words of survivorship, so no anti$lapse. Hnly living brother gets. 7" If a&tiDla)se a))lies! a" If *ift is s)e%ifi%, *e&eral or +emo&strati,e V to s(/stit(te ta7er or i&testa%0 b" If *ift is resi+(e Q la)se+ )art to s(/stit(te ta7er or i&testa%0 8&ot ot$er resi+(ar0< c" If %lass *ift Q to s(/stit(te ta7er or ot$er %lass mem/ers 4L -min .ur/ A&tiDla)se -ma. .ur/ UP4 S)e%ifi% or *e&eral /e5(est to residuary or intestacy If devisee is descendant, then to substitute ta!er issue" or intestacy If devisee is grandparent or lineal descendant of grandparent, then to substitute ta!er issue" Resi+(e ;o residue of residuary – to intestacy lapsed part 6apsed part to substitute ta!er or intestacy not other residuary" 6apsed part to substitute ta!er or other residuary ta!ers 4lass 1ift To the surviving class members To substitute ta!er or other class members To substitute ta!er or other class members

III#

4$a&*es i& Pro)ert0 After E.e%(tio&
a" T0)es of e,ises! i" S)e%ifi% e,ise – disposition of specific piece of testator’s property m& diamond ring" ii" 1e&eral e,ise – when testator intends to confer a general benefit and not confer a specific asset money, a diamond ring" iii" emo&strati,e e,ise – general devise, payable from a specific source. iv" Resi+(ar0 e,ise – whatever is left over b" A+em)tio& i" W$at $a))e&s if a will i&%l(+es a s)e%ifi% +e,ise, /(t t$at s)e%ifi% item is &ot i& t$e testator-s estate at +eat$ testator sold it or gave it away"# ," A E"PTION 32 EETIN4TION D O&l0 a))lies to specific +e,ises# There are two approaches – identity and intent. a" I+e&tit0 T$eor0 8maN< – if the specific gift is not in the decedent’s estate, the gift is eEtinguished. • ,020 D*@ 7$2-0 – identity theory, but with J eEceptions for beneficiary to still get if specific property not in testator’s estate. ,. the remaining balance on purchase price of specific property sold 7. unpaid amount of condemnation award ). unpaid insurance proceeds after destruction 1. property owned by testator as a result of foreclosing on a mortgage J. sale price of specifically devised property by conservator 7J ' 1)

Wasserman v. $ohen – decedent created a trust, to be funded by a specific piece of property. She never conveyed her interest in the property to the trust, and later sold that property. @ourt says since it’s a specific devise, the gift is adeemed b'c it no longer eEists in the decedent’s estate. b" I&te&t t$eor0 – if the specific gift is not in the decedent’s estate, the beneficiary may still be able to get the cash value of the specific item, if he can show this is what testator wanted • ,00- D*@ 7$2-0. lean towards intent theory. #evisee gets. ,. the specifically devised property 7. the amount generated paid or unpaid" by its sale or destruction ). the property owned by the testator acquired as a replacement9 or 1. if devisee recovers nothing under the above factors, the value of the specifically devised property unless evidence indicates the testator intended ademption. a. ;ote also. Dnder this provision, where property was sold or destroyed by a conservator, the devisee has a right to a general pecuniary devise equal to the net sale price of the specified gift. 7" A E"PTION 32 SATISFA4TION C 1e&erall0 a))lies to general +e,ises, /(t mi*$t also a))l0 to +emo&strati,e a&+ resi+(ar0 *ifts# 8a< If t$e testator ma7es a& i&ter,i,os tra&sfer to t$e +e,isee after e.e%(ti&* t$e will, t$ere is a re/(tta/le )res(m)tio& t$at t$e *ift is i& satisfa%tio& of t$e *ift ma+e /0 t$e will# • &E. T’s will gives BJ-,--- to %. %fter eEecuting will, T gives % B)-,---. *resumption that this gift was in partial satisfaction of will’s bequest, so % gets B7-,--- at T’s death. b" Dnder D*@ 7$2-0, no presumption. (equires evidence of intention of testator to adeem by satisfaction. c" E.o&eratio& i" W$e& a will ma7es a s)e%ifi% +e,ise of )ro)ert0 t$at is s(/Ne%t to a mort*a*e, it is )res(me+ t$at t$e testator wa&te+ to +e/t to /e )ai+ o(t from t$e resi+(ar0 estate# ," This is subject to language in the will indicating otherwise. 7" D*@ $ you get the property it with the mortgage d" A/ateme&t i" W$e& t$e estate $as i&s(ffi%ie&t assets to )a0 +e/ts as well as all +e,isesJ some +e,ises m(st /e a/ate+ 8re+(%e+<# ," Or+er of a/ateme&t! 8a< I&testate 8/< Resi+(ar0 8%< 1e&eral d" S)e%ifi%K+emo&strati,e C +i,i+e+ )ro rata 7" This is default only – only applies unless will indicates otherwise )" 8owever, if the testamentary plan would be defeated by the usual order of abatement, the order of abatement may change to give effect to testator’s intent. a" &E. testator gives sum of money to charity and residue to son. If there aren’t enough assets in the estate, the son may ta!e nothing, and this is probably not what the testator intended. e" A++itio&KA%%retio& i" W$at $a))e&s w$e& assets i&%rease i& ,al(e or *e&erate i&%omeR ," @ash dividends $ goes to residuary 7" Stoc! dividends 72 ' 1)



a" Hld view $ residuary ta!es b'c what was given has changed, itFs not the same thing. b" Iodern view $ to beneficiary b'c itFs a change in form, not substance. )" Stoc! splits a" Hld view $ approach depends on how stoc! splits viewed in jurisdiction • If viewed as specific gift change in form, not substance" $ not adeemed, beneficiary gets • If viewed as general gift $ adeemed, residuary gets b" Iodern view $ not adeemed9 for the most part, beneficiary ta!es, unless evidence of intent otherwise

INTESTATE AN FOR4E SHARES
I# I&tro+(%tio&
a" Iost people die without a will b'c they. ," never wrote a will, 7" wrote a will that does not completely dispose of their estate, )" wrote an invalid will, and'or 1" wrote a valid will with invalid portions. In this case, intestacy laws govern how decedent’s property is to be distributed. b" Terminology. i" #irect bloodline V Issue descending line"9 @hildren first generation of issue" ii" @ollateral bloodline V relative who is descended from a common descendant of the decedent. c" Reneral *rinciples of Intestacy 6aw i" (igid scheme – testator’s intent irrelevant ii" *reference for descendants over ancestors iii" %pplies only to probate property other than property that passes by will, joint ownership, insurance policies, etc." iv" &very jurisdiction has a statute of descent. *rovides. ," =ho is eligible to ta!e 7" The order in which people ta!e )" The allocation of shares among ta!ers 1" =hether remote collateral relatives ta!e all v" 6aw of the state where decedent was domiciled at death governs the disposition of personal property9 law of
state where real property was located governs real property.

II#

T$e 3asi% S%$eme
a" W$o is eli*i/le to ta7eR i" T$ose w$o are &ot s)e%ifi%all0 +isi&$erite+ the negative will – 4I don’t want % to ta!e5" ," @6 did not recogni:e negative will, unless they offered another scheme for distribution9 so disinherited could ta!e under intestacy. 7" D*@ recogni:es negative wills9 gives effect to testator’s intent, even w'o alternative scheme ii" T$ose w$o s(r,i,e t$e +e%e+e&t or issues" ," Survive by how muchA a" 3irst approach $ Dniform Simultaneous #eath %ct DS#%" – if there is no sufficient evidence of the order of deaths, the beneficiary is presumed to have died before the donor. • The problem of simultaneous death. ,. 3an&s v. arase(ic4 C husband ? wife die almost at the same time. 6ife insurance proceeds go to wife if she survives husband, or else to husband’s mom. If they died simultaneously, proceeds go to husband’s mom9 if husband died before wife, 7< ' 1)

proceeds go to wife’s dad by intestacy. Iedical evidence shown to prove she lived a little bit longer than him, so wife’s dad gets. b" DS#% ,00, amendment'D*@" – clear and convincing evidence that the beneficiary survived the donor by ,7- hours J days" ,. ;ote. If >anus applied this standard, husband’s mom would have gotten. b" S$ares of S(r,i,i&* S)o(se – most intestacy statutes protect the spouse i" Dnder @ommon 6aw, surviving spouse gets. ," The common distribution scheme. a" ,--W if V no parents and no issues of decedent • some states. presume spouse will provide for children, so give all to surviving spouse b" ,'7 if V one surviving child c" ,') if V one or more surviving children children get remaining 7')" d" ,'7 if V no issue but parents or siblings • only concerned with parents if there are no issue9 if issue, then don’t loo! at parents at all e" ;ote. spouseFs share may vary depending on decedentFs estate si:e, and'or eEistence of mutual'non$mutual children ii" Dnder D*@ 7$,-7, surviving spouse gets. ," ,--W if V no surviving descendant or parent of decedent – or – all surviving descendants are also descendants of surviving spouse ? no other descendant of surviving spouse that survive decedent Snote. parents don’t matter9 only mutual childrenT 7" B7--! X Y of remaining intestate estate if V no surviving descendant, but there’s a surviving parent )" B,J-! X U of remaining intestate estate if V all surviving descendants are also descendants of surviving spouse ? surviving spouse has other descendants not decedent’s" that survive decedent Snote. mutual children and one X" step$childT 1" B,--! X U of remaining intestate estate if V decedent has surviving descendants that are not surviving spouse’s descendants c" S$ares of es%e&+a&ts i" In all jurisdictions, after the spouses share is set aside, issue'descendents ta!e the remainder of the property to the eEclusion of everyone else. ii" Three basic systems to distributing shares to descendants. ," Stri%t )er stir)es – treats each line of descendants equally a" #ividing. ," divide first line of descendents even if all dead" then 7" divide according to the first line 7" "o+er& )er stir)es per capita with representation" a" #ividing. Start with first line of living ta!ers, then same as strict per stirpes b" So, if equally distant from testator, then equal distribution. ;ot fair under strict per stirpes that some have more children than others, and so those who have more siblings ta!e less. c" Iost jurisdictions follow this. )" Per %a)ita at ea%$ *e&eratio& a" #ividing. • Start with the first line where there is a live ta!er – the live ta!er gets share as divided among all in that same line • Then lump together all dead on same line as that first live ta!er, ta!e that share, and divide equally among lower neEt" line b" Hnly a few jurisdictions adopt this. • b'c there is still problems that ta!ers equally distant from testator ta!ing diff shares eEists under the modern per stirpes, this tries to fiE this problem. 7L ' 1)

%
#[,'7

0ote1 survivors are underlined

• Stri%t )er stir)es. / # & @ 3
&[,')

3[,')

• "o+er& )er stir)es #[,') &[,') 3[,')

%

/ & 3

@ R

#

0ote1 survivors are underlined • Stri%t )er stir)es. #[,') &[,') 3[,'2 R[,'2

• "o+er& )er stir)es
#[,') #[,') &[,') &[,')

3[,'2 3[,'2

R[,'2 R[,'2

• Per 4a)ita

d" S$ares of A&%estors a&+ 4ollaterals i" =hen survived by a descendant, ancestors and collaterals do not ta!e. If there are no descendants ? no surviving spouse – ta!es neEtA ," 3irst 6ine – %ncestors in ascending order V parents, siblings, nephews'nieces" 7" Second 6ine – @ollateral if no first line ta!ers" a" Two approaches. • *arentelic System $ estate passes to grandparents and their descendants, and if no grandparents then to great grandparents and their descendants, and so onZ • #egree of Oinship $ estate passes to closest of !in counting degrees of !inship count steps on table of consanguinity". ii" D*@ ," 3or descendants – distribute by representations a" If no descendents to parents equally • If no parents ? no issue $ goes to descendents of parents siblings" ,. If nothing there $ but you find descendents on each grandparents side a. ,'7 to maternal grandparents, ,'7 paternal grandparents. i. If only one maternal grandparent, and 7 paternal grandparents $ still split equally on each side

III#

Tra&sfers to 4$il+re&
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A OPTION i" A+o)te+ 4$il+re& C iffere&t A))roa%$es ," (etention of full inheritance rights with adopted child a" Some jur. Stranger$to$%doption (ule V cannot inherit through adoptive parents since the relatives did not adopt 7" &limination of all ties with adopted child a" Hall v. "allan)ingham – &arl and 6i: marry and had four children. &arl dies9 6i: marries >im who adopts the four children. 7J years later, &arl’s brother =ill dies intestate, childless and single. @ourt said children cannot ta!e through intestacy from =ill. /ecause an adopted 70 ' 1)

child has no right to inherit from the estate of a natural parent who dies intestate, it follows that the same child may not inherit through the natural parents by way of representation. Dnder D*@, children could have ta!en. )" %dopted child inherit from natural parents but not from natural parents’ !in 1" ;atural parents prohibited from inheriting from adopted child while adopted child inherits from them J" D*@" %dopted child cannot inherit from natural parent eEcept where other natural parent marries and the stepparent adopts the child. ii" A+(lt A+o)tio& ," Iost states treat just li!e regular adoption9 typically done to avoid will contest. a" /ut, adoption of an adult for the purpose of bringing that person under the provisions of a preeEisting testamentary instrument, when he clearly was not intended to be so covered, should not be permitted. • Minar- v. $iti4ens *i)elit- – mom left will that paid to income to husband ? sons, then to be distributed to surviving heirs. Son adopted his wife so she could inherit. @ourt said no, that’s not what’s meant when they usually give the same legal effect to adopted children9 this is a subterfuge that thwarts the intent of the testator. iii" @irt(al 8E5(ita/le< A+o)tio& ," (equirements a" Iust be an agreement between natural parents and adoptive parents to adopt a child • %5Neal v. Wilkes – 8attie born out of wedloc!9 her mom died, her dad did not recogni:e her as his child at all. She was shuffled around to several people – maternal aunt, then 6ouise, then *age biological father’s sister" and she finally ended up with the @oo!s. The @oo!s raised her as their own daughter, but never formally adopted her. =hen @oo!s died, 8attie wanted to inherit. @ourt said that *age did not have legal custody of 8attie, she could not transfer custody to the @oo!s. b" The natural parents must fully perform turn over child" to adoptive parents c" The child fully performs by moving in with the adoptive parents d" The adoptive parents die intestate. b" POSTHUMOUS CHILDREN D Dsually where child is conceived before, but born after, her father’s death. They are treated as being a child from the time of conception. c" NON-MARITAL CHILDREN i" In all states, child can inherit from the mother. ii" Iajority of states permit inheritance of father where there is. ," &vidence of a subsequent marriage 7" %cceptance by the father )" /y adjudication during the life of the father or 1" /y clear and convincing evidence after death. d" ADVANCEMENTS similar to ademption by satisfaction" i" D*@ + 7$,-0 – Transfers to heirs during the decedent’s life are advancements only if there is proof this was intended by a writing indicating this" ii" @ommon 6aw – any lifetime gift to a child is presumed an advancement iii" If *ift is treate+ as a+,a&%eme&t t$e& Q $ow +o 0o( %al%(late s$ares at +eat$R ," T has ) surviving children, no spouse. &state at time of death is valued at BJ--!. =hile T was alive, child % received B,--!. a" Re*(lar +istri/(tio& Q a+,a&%eme&t +e+(%te+ from t$e i&$erita&%e# • BJ--! divided by ) $ B,2<! is what it would be without advancement. • The B,--! is deducted from this, so % gets B2<!. b" Hot%$)ot +istri/(tio& Q A *i,es /a%7 a+,a&%eme&t first, t$e& %al%(late+ )- ' 1)

• BJ--! X B,--! advancement" [ B2--! estate created • The B2--! divided by ) [ B7--! each • Then deduct advancement B,--! V % would get B,--! under hotchpot. 7" Sometimes it’s not worth it to ta!e part in hotchpot. 3or eEample, if estate at death worth B,7J!, and % rec’d B,--! during lifetime. a" ;o hotchpot V B,7J!') [ B1,!. ;othing eEtra, % already too!. /ut % has the B,--!. b" 8otchpot V B,7J! X B,--! [ B77J! ' ) [ B<J! instead of B,--! under reg distribution" E) GUARDIANSHIP AND CONSERVATORSHIP OF MINORS i" If minor’s parent die and do not appoint a guardian in the will, the court will appoint one for them. ," Ruardianship terminates when the child becomes of age9 dies9 or is adopted. ii" If designated by will, courts loo! with deep suspicion. Iust have sufficient recording requirements. iii" *roperty Ianagement Hptions ," Ruardianship of *roperty – wards until child is of age9 no investment powers 7" @onservatorship – gives guardian trustee powers with the authority to control investment a" %ppointment and supervision by the court is required )" @ustodianship – person given property to hold for benefit of minor. &ssentially the money is given to the custodian for benefit of child. 1" Trusts – testator can tailor bequest with the most amount of fleEibility 3" 3ARS TO SU44ESSIONK IS4LAI"IN1 i" I&,ol(&tar0 D Homi%i+e ," Three approaches. a" 6egal title still passes to slayer V *erson who committed crime already penali:ed criminal prosecution" $ why should slayer be penali:ed againA b" 6egal title does not pass to slayer V Should not be able to benefit from wrongful conduct. • Some jurisdictions will even bar neEt of !in heir of slayer" c" 6egal title passes to slayer but holds as a constructive trust for heirs or neEt of !in of decedent • In re Estate of Mahone- – =ife !illed husband and then wanted his inheritance. @ourt ruled that she held the inheritance in constructive trust for heirs or neEt of !in. Issue turns on whether slaying was intentional or unintentional. Involuntary manslaughter would not provide constructive trust because there is no intent. Standard of proof – conviction is sufficient. 7" UP4! Slayer also barred from nonprobate transfers V !iller cannot profit from his wrong. a" Oiller is treated as having disclaimed the property, and disclaimant is treated as having predeceased the decedent. Some jurisdictions permit the neEt of !in to ta!e, others do not. ii" @ol(&tar0 C is%laimer V when person in line to ta!e inheritance declines ," @6 – cannot disclaim9 if heir refuses to accept, law treats it as passing through disclaimer then to neEt intestate successor 7" Iodern trend'D*@ – allow disclaimer9 disclaimer treated as if he died before decedent )" =hy disclaim an inheritanceA a" TaE purposes b" *roperty too encumbered c" %void creditors • /ut, when the creditor is the I(S $ @annot disclaim ), ' 1)

,. 2r&e v. U.*. – testator dies, leaves property to son, (on. (on tries to disclaim, so his
daughter would get the money and not his creditors I(S". @ourt said the I(S can reach the disclaimed assets because (on ultimately had control of the property.

I@#

Ri*$ts of S(r,i,i&* S)o(se, Omitte+ S)o(se a&+ Famil0 "em/ers
SPOUSAL PROTE4TION S2STE"S i" Se)arate )ro)ert0 C $(s/a&+ a&+ wife ow& se)aratel0 all )ro)ert0 ea%$ a%5(ires ," ower & 4(rtes0 a" #ower – entitled widow to a life estate in ,') of husband’s interest in qualifying land • %dvantage V right to dower superior to creditors9 #isadvantage V wife cannot pass it on9 since maj property today is not land, no adequate protection of spouse • Iostly abolished V 7 states dower only9 7 others dower w'elective share more than just land9 fee simple ,')" b" @urtesy – husband has a support interest in wife’s land only 7 states" 7" S())ort ,s# Part&ers$i) t$eor0 a" Support V must support purely b'c you got married b" *artnership V not entitled to support just b'c got married, but b'c built life together )" Ri*$ts of t$e S(r,i,i&* S)o(se to S())ort a" So%ial Se%(rit0 V support theory $ surviving spouse entitled to social security benefits9 doesn’t matter who wage earner was. @annot transfer social security benefits to someone else $ can only be to surviving spouse. If previous marriage, ? both spouses survive, must share between both. b" Pri,ate Pe&sio& Pla&s V Support theory $ &(IS% dictates surviving spouse entitled to benefits under plans, no matter who the wage earner was. • #ivorce alone does not revo!e beneficiary designation irrespective of what state law says. 8usband still collects unless wife changes the named beneficiary. &(IS% preempts state law. • If wife remarries $ 8usband P7 ta!es, no matter if named beneficiary is husband P,. The current husband at death ta!es. • If divorce 8usband P,, then changed beneficiary to sister $ #ivorced husband gets nothing, sister ta!es. /ut then if wife remarries, husband P7 gets. c" Homestea+ V Surviving spouse ? children have an interest in the home. (ight to protect from predators9 right to occupy home during lifetime. ;ote. you don’t need this right if house owned jointly b'c spouse gets it anyway. d" Perso&al Pro)ert0 SetDAsi+e V @ertain personal property set aside for surviving spouse of a certain amount. e" Famil0 Allowa&%e V Sometimes probate ta!es several years, until estate is probated, property given to family as maintenance. ii" 4omm(&it0 )ro)ert0 C $(s/a&+ a&+ wife ow& all a%5(isitio&s from ear&i&*s after marria*e i& e5(al (&+i,i+e+ s$ares /" SPOUSAL ELE4TI@E SHARE i" %lmost all separate property states give surviving spouse an elective forced" share. ," There is huge variation in the statutes. %lso statutes are generally infleEible – it doesn’t matter why you married or if you came into marriage with money. 7" T$e %o(rt ma0 ele%t for t$e s(r,i,i&* s)o(se to ta7e a*ai&st t$e will a&+ ta7e $er i&testate s$are i&stea+, if it fi&+s t$at it is &e%essar0 to )ro,i+e a+e5(ate s())ort for t$e s(r,i,i&* s)o(se# a" In re Estate of $ross – =ill leaves everything to testator’s son, ? nothing to surviving spouse. =ife suffers from %l:heimer’s and lives in a nursing home paid for by Iedicaid. )7 ' 1)
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ii" iii"

iv"

v" vi"

@ourt did what she would have done if she had been competent to ma!e a decision, finding this was necessary to provide for her financial support. )" To 5(alif0 as a s(r,i,i&* s)o(se, 0o( m(st /e le*all0 marrie+J life )art&er, et%# +oes&-t %o(&t# a" In re Estate of $ooper – testator left everything to his homoseEual lover eEcept for a valuable piece of real estate. 6over wanted to elect against the decedent’s will. @ourt said no, the term 4surviving spouse5 does not include lie partners for purposes of the elective share statute. 1" ;ot immune to creditors unli!e dower". Tra+itio&al stat(tes )ro,i+e t$e s(r,i,i&* s)o(se wit$ a& ele%tio&! ," T$e s)o(se %a& ta7e (&+er t$e +e%e+e&t-s willJ or 7" T$e s)o(se %a& re&o(&%e t$e will a&+ ta7e a fra%tio&al s$are of t$e +e%e+e&t-s estate# U&+erl0i&* Poli%0! ," >ustification. the surviving spouse contributed to the decedent’s acquisition of wealth and deserves to have a portion of it9 also to provide spouse with adequate support. 7" Support vs. *artnership theory )" Support V right to support b'c need of support, so if wife dies shortly after husband, w'o having gotten share, wife’s heirs not entitled, b'c she no longer needs it 1" *artnership V wife’s share is her share and she would be able to pass on to her heirs 4o&trast wit$ I&testate S$are! ," Intestate deals with when thereFs no will a" QouFre entitled to half if there are mutual children9 if parent ? no children, etc. b" Hnly getting probate assets – but, some jur start to include nonprobate assets b'c testator would transfer assets to nonprobate so they don’t leave to surviving spouse intentionally. UP4 89990< a))roa%$ C *i,es t$e s(r,i,i&* s)o(se a sli+i&*Ds%ale )er%e&ta*e of t$e ele%ti,e s$are amo(&t, /ase+ o& t$e +(ratio& of t$e marria*e 8S90rAHT, S9M0rsAM0T< 8Q*H. 8 ? = married for J- yrs. %greed that 8 is wage$earner, = is homema!er. 8 attempts to disinherit = in will ," In intestacy, = would get U. /ut no intestacy b'c there’s a will in place. 7" = entitled to an elective share – ,'). a" ,00- Sliding scale – /'c it’s a J- yr marriage, = entitled to more b" In community property jur – = would get U

@"

PROPERT2 SU3'E4T TO ELE4TI@E SHARE i" No&)ro/ate Tra&sfers ," Assets $el+ i& a& i&ter ,i,os tr(st are &ot )art of t$e estate for )(r)oses of t$e s(r,i,i&* s)o(se-s ele%ti,e s$are, as t$e0 are &o&)ro/ate assets# a" S&llivan v. B&rkin – #uring his lifetime, husband created a trust under which he transferred real estate to himself as sole trustee9 then to go to his sons. =hen he died, he left a will intentionally disinheriting his estranged wife. =ife wanted to invo!e her elective share, but court said the inter vivos trust is not considered part of the elective share. • *rof says. not really equitable, but court doesn’t want to go against precedent. In divorce, the transfer would be counted as marital prop ? wife could still ta!e. #oesn’t ma!e sense that entitled to it at divorce, but not at death. 7" Tr(sts %reate+ from assets a%5(ire+ o(tsi+e of marria*e &ot eli*i/le for t$e ele%ti,e s$are# a" )ongaards v. Millen – mom created trust for benefit of her daughter. #aughter had a limited power of appointed. #aughter then doesn’t leave trust to her husband, but to her sister. 8usband wants his forced elective share. @ourt says not an asset for elective share purposes – asset not created during marriage. )" Three different tests to determine when nonprobate transfers are subject to elective share. )) ' 1)

a" Ill(sor0 Tra&sfer $ court loo!s at whether itFs a good faith transfer or divestment, or made solely to disinherit spouse b" I&te&t to efra(+ $ court loo!s at the state of mind of the person ma!ing an inter vivos transfer $ whether transferor intended to defraud surviving spouse c" o&ati,e i&te&t $ loo!s at whether the transferor intended to ma!e a present gift 1" Stat(tor0 S%$emes a" ;Q – specifically lists which nonprobate transfers subject to the elective share b" #elaware – property subject to elective shares is all property includible in the decedent’s gross estate under fed estate taE c" ,020 D*@ – surviving spouse entitled to ,') of augmented estate, which includes the probate estate and certain nonprobate ? inter vivos transfers made without consideration during the marriage. d" ,00- D*@ – more li!e community property system – all up all property of both spouses and slit it according to a percentage based on length of marriage.

TRUSTS
I# I&tro+(%tio&
a" A tr(st is a +e,i%e w$ere/0 a tr(stee ma&a*es )ro)ert0 as a fi+(%iar0 for o&e or more /e&efi%iaries# i" The *arties to a Trust – must have these for trust to be valid ," Settlor Rrantor" $ the person who raised the trust $ puts assets in the trust 7" Tr(stee – holds legal title to the property in trust9 the person who has the fiduciary obligations9 can usually sell trust property and replace it with more desirable property. )" 3e&efi%iar0 – holds equitable title to the trust9 benefits from the trust entitled to trust income" a" (ights of /eneficiaries $ @an go after trustee for breach of duty9 /eneficiaries have access, when thereFs a breach, to the trust raised. ii" ;o real statutory formalities requirements for creation of a trust ," % trust is often evidenced by a written document although not always" 7" @an be created by an oral declaration eEcept for real property $ statute of frauds iii" Fi+(%iar0 (t0 V central to a trust. So, you can create a trust where you name yourself as trustee, and also as beneficiary. /ut, you need to also have another beneficiary $ b'c there needs to be a fiduciary relationship to be able to hold someone liable for breach of the fiduciary duty. iv" Inter vivos trust – created during life9 testamentary trust – given after death, usually by will b" Three Reneral (ules. i" If the trustee is also the beneficiary, you need another beneficiary due to fiduciary duty requirements. ii" % trust will not fail for want of a trustee ," If settlor doesn’t name a trustee or if the trustee named waives or doesn’t want to do it $ @ourt can always appoint someone as trustee who can fulfill the role a" ;ote. personal trustee eEception $ If settlor gives some inclination that this is the person that he wants to be the trustee, and that person can’t'won’t do it then court would find that the trust fails. iii" If grantor'trustee as with a declaration of trust, you do not need formal transfer'delivery of the property ," This is b'c trustee'grantor same person. So not necessary. )1 ' 1)

7" ;ote. ;Q eEception $ Still need to go through the formal procedure

II#

4reatio& of a Tr(st
a" I&tro+(%tio& i" 3our @onsiderations for Trust Calidity ," =hether there was intent to create a trust by the settlor. 7" =hether there was trust property trust raised" )" =hether there are valid" trust beneficiaries 1" =hether the trust instrument was in writing, if Swriting isT required. b" I&te&t to 4reate a Tr(st i" No )arti%(lar wor+s are &e%essar0 to %reate a tr(st Q loo7 at la&*(a*e to see if t$ere was e,i+e&%e i&+i%ati&* t$at settlor wa&te+ t$e )erso& to w$om )ro)ert0 is /ei&* tra&sferre+ to /e for t$e /e&efit of someo&e else# ," 3actors to @onsider leanings towards creation of a trust. a" The person wished to create duties b" The eEpress goal would be best implemented by finding a trust c" The person wished to create a legal obligation • *recatory 6anguage V nonbinding'nonenforceable language – 4I hope, 4I recommend5 • &quitable @harge $ If a testator devises property to a person subject to the payment of a certain sum of money to a third person, the testator creates an equitable charge. ,. &quitable @harge creates a security interest in the transferred property 7. ;o fiduciary duties $ the relationship is more in the nature of a debtor and secured creditor. 82< T$e la&*(a*e =s$all /e mai&tai&e+> a&+ =s$all &ot /e sol+> is stro&* i&+i%atio& of i&te&t to %reate a tr(st a" Lu" v. Lu" – will said Gshall be maintained for the benefit of said grandchildren and shall not be sold until the youngest of said grandchildren reachesG 7, yrs. Issue is it outright gift or a trust – court ays the language indicates intent to create a trust. 8H< T$e wor+s =i& tr(st> &ot &e%essar0 to %reate a tr(st so lo&* as t$e tra&sfer was ma+e wit$ t$e i&te&t to ,est ow&ers$i) i& a t$ir+ )art0# a" 3imene4 v. 'ee – 3ather was given money from grandma as a gift to his children9 dad too! money and invested in stoc!. Rifts never given using the words 4to be held in trust.5 @ourt says a trust was created ? dad had a fiduciary duty as trustee. So although dad says he used money to pay for various things for daughter, court says as a trustee, your fiduciary duty includes the duty to do the accounting. #aughter not entitled to entire proceeds from stoc! dad used with trust money – need to ta!e out what was used for her education. ii" Tr(st ,s# 1ift ," To ma7e a& o(tri*$t *ift of )erso&al )ro)ert0, as %om)are+ to a *ift i& tr(st, t$e +o&or m(st +eli,er t$e )ro)ert0 to t$e +o&ee, a&+ t$e +o&ee m(st a%%e)t t$e *ift# So if you die before you give a gift, it does not have to be given, but if it were made in trust, then it must be devised. 8a< eli,er0 &ee+ &ot /e )$0si%al • 4o&str(%ti,e +eli,er0 – something that gives you access to the gift !eys" • S0m/oli% +eli,er0 – symbolic of the gift a picture of the gift" 8/< T$e mere i&te&t to *i,e )ro)ert0 to someo&e else is &ot e&o(*$ to %reate a tr(st w$e& t$e )ro)ert0 $as &ot %$a&*e+ $a&+sJ t$ere m(st /e a %lear i&te&t to im)ose t$e +(ties of a tr(stee o& t$e +o&or# )J ' 1)

he Hebre( Universit- !ssociation v. N-e – woman went to school in Israel ? said she was going to give the school some boo!s announced at a banquet", but died before she could give them away. @ourt will not save a gift that fails of delivery by imposing a trust where no facts indicate a trust was intended. 3or the oral declaration to have created a trust, there must have been obvious intent that widow was imposing on herself the enforceable duties of a trustee. 8owever, court said this was a valid inter vivos gift, b'c symbolic delivery was made when she announced she was giving it to them, as actual delivery would have been impractical. c" Ne%essit0 of Tr(st Pro)ert0 i" To %reate a tr(st t$ere m(st a formal +e%laratio& of tr(st a&+ a se)arate allo%atio& of tr(st )ro)ert0# ," Unthank v. Rippstein – #ecedent had promised to pay B7-- per month as long as K lived. %fter his death, K tried to get estate to pay it, as a trust. @ourt says there no trust property. #ecedent failed to separate a portion of the estate to serve as the trust res property". 7" Trust v. #ebts a" Trust is a particular carved out property to which trustee must handle in a specific way to satisfy fiduciary duty. /eneficiary receives the increase or decrease of the trust property. b" #ebt is an obligation to pay. Hnly receives amount owed. )" =hat happens to trust res if the trust fails for some reasonA a" To settlor $ reversionary interest $ an outright transfer b" (esulting trust $ some courts will impose this for successor9 trustees appointed instead of reversion" $ goes bac! to grantorFs heirs in trust c" *urchase money trust ii" W$at %a& /e tr(st )ro)ert0! a" Renerally, any recogni:ed Gproperty interestG $ @ash'chec!'money order'debt'obligations'real property b" F(t(re )rofits C %a& /e (se+ as tr(st )ro)ert0 if t$ere is a le*al ri*$t to re%ei,e t$e f(t(re )rofits a&+ a real e.)e%tatio& to re%ei,e t$em# • )rainard v. 3ommissioner – ,07< oral declaration of trust9 ,07L, N traded stoc! ? made money. N says the profits he made were in trust, so I(S can’t touch. @ourt just thin!s this is shady. They find no trust raised b'c in ,07< when he made the oral declaration of trust, the property didn’t eEist. ;ote. it’s not that future profits can’t be put in trust, this case is just problematic – very suspicious – trying to get out of taEes. • Speelman v. #ascal – writer and owner of license of 4Iy 3air 6ady5 gives as a gift to his secretary JW of the future profits. Since he owned the rights to receive future property ? there is a real eEpectation of it, then o! to use future profits as trust raised. iii" Po(r O,er Will! E.%e)tio& to re5(ireme&t t$at t$ere m(st /e tr(st raise+ $ funding trust from assets distributed by the will. %lthough trust not raised inter vivos, it will be once settlor dies, by will distribution. d" Ne%essit0 of Tr(st 3e&efi%iaries i" 3e&efi%iar0 m(st /e as%ertai&a/le – doesn’t have to be named, but you have to be able to figure it out 89< A /e5(est to a& i&+efi&ite )erso& or *ro() is i&,ali+# a" $lark v. $ampbell – testamentary trust9 will said assets to go to decedent’s 4friends,5 whoever are determined to be his friends. The rest goes to residuaries. 3riends are not ascertainable, unli!e relatives which the law can figure out. 7" *et /eneficiaries C A& a&imal %a&&ot /e a /e&efi%iar0 /K% it %a&&ot $ol+ t$e tr(stee a%%o(&ta/le# a" &Eception. 8onorary Trusts )2 ' 1)



In re Searight,s Estate – testamentary trust created to be paid to 3lorence at a specific rate to care for decedent’s dog. @ourt creates an honorary trust. 3lorence put in charge of the dog. /ut no fiduciary duty here, so if 3lorence no longer wants to ta!e care of the dog, the B,--- goes to the resulting trust $ reverts bac! to settlorFs estate for settlorFs heirs". e" Ne%essit0 of a Writte& I&str(me&t i" I& *e&eral, a tr(st +oes &ot &ee+ to /e i& writi&* re5(ireme&t (&less it is 9< a testame&tar0 tr(st 8will re5(ireme&t< or, 2< are a tr(st i&,ol,i&* real )ro)ert0 8stat(te of fra(+s<#
," Hral Inter Civos Trust of 6and a" Some N(ris+i%tio&s will (se a %o&str(%ti,e tr(st to ,ali+ate a& oral tr(st of la&+ if t$e tr(stee is i& a %o&fi+e&tial relatio&s$i) wit$ t$e tra&sferor



4ie+le v. 4ie+le – mom thought cancer would come bac! ? she was near death. She ma!es an oral trust of property. She transfers the property jointly to her daughter ? son. She also says if she survives, to give it bac! to her. She survives, but son refuses to transfer it bac! to her. @ourt says it’s not a valid trust9 b'c must be in writing. Instead, court imposes a constructive trust b'c there is a confidential, fiduciary relationship. ItFs her son, she is ill, wea!, son reassures her of his loyalty. 7" Hral Trust for #isposition at #eath a" %lliffe v. Wells – will gave residuary estate to (everand =ells to distribute as he saw fit to carry out her wishes as eEpressed or shall be eEpressed to him orally". • Types of trusts court identifies here. ,. Se%ret tr(st – beneficiary appears to have rec’d property for his own use, but decedent ? beneficiary have previously orally agreed that it be held in trust for some secret purpose. @ourt will allow eEtrinsic evidence that sheds li!e on what was meant. 7. SemiDse%ret tr(st –will appears to create a trust with the beneficiary under will as trustee but purpose of trust not identified. @ourt will not allow eEtrinsic evidence. • @ourt says this is a semi$secret trust and won’t allow &&. Instead there is a resulting trust, where property goes bac! to estate for the benefit of the settlorFs estate. This is because thereFs no possibility of unjust enrichment $ it would just go bac! to the heirs.



III#

T0)es of Tr(sts
a" Introduction $ Types of Trusts i" (evocable trust $ settlor retains a lot of power ii" Irrevocable trust $ gives trustee all the power9 you can have more than , trustee iii" #ynastic trust $ leaving for all descendents only $ !eep money in the family $ you canFt will it to someone else iv" @haritable trust $ put stuff in trust for a charitable purpose which is defined by statute" v" #iscretionary trust $ set up trust giving certain discretionary powers to trustee. b" REVOCABLE TRUSTS 8a7a Will S(/stit(te< C wa0 to +istri/(te )ro)ert0 at +eat$, ot$er t$a& /0 will i" 8ow a (evocable Inter Civos Trust typically wor!s. ," Settlor and trustee are usually different 7" Settlor eEecutes a deed of trust retaining the power to revo!e or amend with right to income for life )" Hn settlorFs death, trust assets distributed or held in further trust ii" T$e rete&tio& of t$e )ower /0 t$e tr(stee to re,o7e & to $a,e a life i&terest i& it +oes &ot ma7e a tr(st i&,ali+ N(st /e%a(se t$ere is &o will# )< ' 1)

," ;ote. Since itFs not much different from owning it outright, @6 didn’t recogni:e revocable trust. @6 says itFs li!e a will, but without abiding by requirements of a will. %ll jur eEcept T; recogni:e revocable trusts. 7" *arkas v. Williams – Settlor is also trustee. #uring life, settlor retains all benefits, but then transfers to beneficiary at death much li!e a will". The court here distinguishes it from a will, though, by saying that it is a trust b'c the beneficiary must get something now – an interest. 8e still had the same rights as a beneficiary, even though in reality he could not eEercise those rights, b'c settlor can just revo!e. /ut it’s enough. iii" W$ere t$e settlor reser,es a )ower to re,o7e a tr(st i& a )arti%(lar ma&&er, $e %a& o&l0 re,o7e it i& t$at ma&&er diff from revocation of wills". ," In re Estate an) r&st of #ilafas $ #ecedent created both will and trust. /oth could not be located upon death. @ourt said will revo!ed per the lost will doctrine. /ut cannot revo!e the trust in just any old way. /eneficiaries’ interests cannot be ta!en from them unless in accordance with trust provisions9 trust required written notice to beneficiaries, which was not given. iv" Impact on @reditors ," *tate *treet )ank 5 (rust 3o. v. Resier $ =ilfred created trusts using stoc!s. Too! out unsecured loan. &state doesn’t have enough to pay bac! creditors $ they want to reach the trust. If 0o( retai& %o&trol o,er i&ter ,i,os tr(st w$ile 0o(?re ali,e, t$e %re+itors s$o(l+ /e a/le to rea%$ it to )a0 0o(r +e/ts# If you can live off the trust, why canFt you pay off your debts from itA c" POUR OVER WILLS C set () tr(st a&+ tr(st )ro)ert0 %omes from will +e,ise so don’t need trust raised for this". Same result by creating a testamentary trust. Iost jurisdictions allow pour over will. i" Two approaches. ," I&%or)oratio& /0 refere&%e D Re5(ires t$at t$e tr(st i&str(me&t /e i& e.iste&%e at t$e time t$e will is e.e%(te+# a" If the trust instrument is in eEistence at the time the will is eEecuted, and the will incorporates the trust instrument by reference, it creates the trust b" If trust amended after will is eEecuted. • Rive effect to the trust as it was at the time of will eEecution. /ut if court finds it inconsistent with intent of testator, the trust doesn’t come in at all, no pour over will, and estate passes through intestacy. 7" I&+e)e&+e&t si*&ifi%a&%e D Re5(ires t$at some )ro)ert0 is tra&sferre+ to it +(ri&* life a" =hat is required is that at time of the reference there has to be trust raised $ prior to testatorFs death. This is what gives it independent significance. b" #iff from incorp by reference b'c the trust can be created or amended after the will is eEecuted. ii" $l-mer v. Ma-o 6 @lara names her husband >ames as the primary beneficiary to her life insurance policy, pension plan and will. She then creates a trust to be funded from those sources, and her husband was named beneficiary of the trust. They get divorced. @lara changes beneficiary on pension plan, but doesn’t change husband as beneficiary of the trust. ," Trust is valid b'c itFs to be funded not only by pour over will, but also by the insurance policy proceeds. 7" 8usband’s interest was revo!ed as a result of the divorce. Renerally when people get divorced they donFt li!e each other, and wouldn’t want the eE$spouse to get under the will. So under law of wills, the eE$spouse can no longer get although will still names them. So the pour over will that gives assets to the trust is void b'c itFs benefiting the eE$spouse, so husband canFt get. d" RI1HTS OF 3ENEFI4IARIESK4RE ITORS TO ISTRI3UTIONS FRO" THE TRUST )L ' 1)

i" "a&+ator0 Tr(st $$ The trustee has no )iscretion to choose either the persons who will receive the income or the amount to be distributed ," /eneficiaries have right to alienate – can sell it, satisfy debts 7" Therefore, creditors may also reach the trust assets ii" is%retio&ar0 Tr(st $$ Trustee has discretion over payment of either the income or the principle or both. /eneficiary cannot get until trustee gives it so creditors can’t get either, until trustee gives to beneficiary". Trustee determines to whom, and how much he pays and does ;HT have to pay all of it 89< (ties of Tr(stee a" #uty to inquire into financial status of beneficiary $ If beneficiary is ambiguous about financial report, trustee must clear it up b" #uty to act reasonably unless it is sole and absolute discretion, eEplicitly stated" c" 3iduciary #uty • Marsman v. Nasca – discretionary'support trust. /eneficiary goes to trustee and says that he is running low on funds and trustee said to put it in writing and he will consider it. /eneficiary never did and lived in a state of poverty. Trustee never inquired into his financial situation, never gives more money. @ourt says when trustee failed to chec! up on beneficiary and denied more payouts, this was a breach of the fiduciary duty. 82< P(rel0 is%retio&ar0 ,# is%retio&ar0 wit$ a s())ort sta&+ar+ a" P(rel0 +is%retio&ar0 $ trustee has discretion over income or interest • @reditor of the beneficiary cannot reach the trust assets, since beneficiary doesn’t have a recogni:able interest. Trustee doesn’t have to ma!e a payment. b" #iscretionary trust with support standard Support Trusts" – requires trustee to ma!e payments of income to the beneficiary in an amount necessary for education or support of beneficiary S())ort Tr(st i. % support trust directs the trustee to pay only so much of the income or principal as is necessary for the beneficiary’s support or education ii. Support trust is a form of discretionary trust, but not a T(D& discretionary trust because amount necessary is not in trustee’s judgment  it is an ob6ective standard ,. I.e %nyone, can figure out how much to give as opposed to saying 4enough to ma!e \ comfortable5. iii. Reneral Ciew is that bfs cannot alienate support trusts so creditors cannot reach bfs interest iv. E"ception who can reach bfs interest". ,. Suppliers of necessities a. %lways in the DT@ and (estatement b. #oes not apply for purely discretionary trusts for the DT@ 7. @hildren and spouse my enforce claim for child support and alimony against bfs interest in a support trust. a. Dnder DT@, court can direct trustee to pay amount. b. #oes not apply for purely discretionary trusts for the DT@ /# S)e&+t$rift Tr(sts i. % spendthrift trust precludes the beneficiary from. ,. "%'UN !RI'0 alienating interest beneficiary can’t transfer" 7. IN"%'UN !RI'0 alienating interest creditors can’t sei:e" T8IS IS 8DR&" )0 ' 1)

ii. Spendthrift clauses are a restraint on both voluntary and involuntary alienation. ,. B&t for public policy reasons, if you only restrain one and not both, then you can only restrain vol&ntar- alienation. a. &E. #ad ma!es trust for son and wants son to be responsible b. Thus, he restrains voluntary transfers he cannot alienate his property" c. /DT, he lets involuntary transfers creditors can attach to trust property" iii. Scheffel v. .r&eger $$ * sued # for abusing her son and she gets a J--O judgment. 8e has a trust and * wants to attach trust to judgment. @ourt found that the language created a spend thrift trust. @ourt found that * could not ta!e or attach trust asset. =hat was the legal authority the court used. (here are onl& t#o e"ceptions1 7ne is if the +f is the settlor and the trust is not a special need trust esta+lished for a person #ith disa+ilities and second! for fraud. 0one of these e"ist. &ven though they had a judgment they could not collect on the trust. Settlor can put a restraint of alenination iv. Shelle- v. Shelle- – =hat types of trust was thisA Iandatory trust with discretionary clause. It was also a spendthrift clause. /3 was married and divorced. 8e was supposed to pay child support and alimony which he did not do. @hildren and wives wanted a claim to trust funds. Trust established for bf was subject to claims by their children and former wives. @hildren and wives can ta!e on income but not on corpus because it was discretionary. @an the children ta!e under the discretionary partA ;ot as creditors but as bf in case of emergency. /ecause Rrant abandoned them the court concluded there was an emergency v. (ule. @hildren and wives have a claim on income from spendthrift trusts but not corpusA" vi. (ule. Tort credtors cannot reach spend thrift provision vii. *ension plans may not be assigned or alienated iii" Iandatory v. #iscretionary ma!es the diff on whether creditors can reach beneficiaries of the trust" ," S())ort Tr(sts $ mandatory trust payout, so creditors can attach creditors can also attach if it’s a revocable trust made to settlor'beneficiary" 7" is%retio&ar0 Tr(sts – combines an eEplicit statement of discretion with a stated support standard9 whether creditors can reach assets depends. a" Trustee has discretion over the distribution over income or interest, and sometimes even to who are the beneficiaries. iv" 4$arita/le Tr(sts ," To qualify as a charitable trust, the trust must have a charitable purpose, rather than merely being benevolent. @haritable purposes include. ," relief of poverty, 7" advancement of education, )" advancement of religion, 1" promotion of health, J" gov’t or municipal purposes, and 2" other purposes that are beneficial to community. *henandoah 7" @y *res. If the settlor’s eEact charitable purpose cannot be carried out, the ct may direct the application of the trust property to another charitable purpose that approEimates the settlor’s intention. In re 0eher a" ,stStep. If there a charitable *urposeA b" 7nd Step. =hether the trust was for a general charitable purpose or a specific charitable purpose. If general, trust can be modified9 if specific, cannot be modified. c" )rd Step. Is it impracticable to give effect to what she wantedA

I@#

"o+ifi%atio& a&+ Termi&atio&
a" Irre,o%a/le Tr(st usually testamentary" $ If settlor ? all /3s consent V may be modified or terminated. Trustee cannot object b'c he has no beneficial interest. If settlor is dead V trust cannot 1- ' 1)

b" c"

d"

e"

be terminated'modified before time fiEed for termination, even if all /3s agree, if termination'modification is contrary to material purpose of settlor 3laflin #octrine" Re,o%a/le Tr(st – can be modified'terminated if settlor consents. "o+ifi%atio& i" @6 %pproach. The 3laflin #octrine – @annot terminate'modify terms of the trust prior to natural eEpiration even though all /3s agree, if it is contrary to settlor’s intent. @an only modify for administrative purposes not related to dispositional aspect. *tutchell mentally handicapped" ," &Eception ;Q" *oor surviving spouse ? Trust protectors ii" UT4 L P92! @t can modify both admin ? dispositional terms or terminate, if changed circumstances not anticipated by settlor, ? to further the purpose of the trust settlor’s probable intention". Iodify admin terms if impracticable or wasteful or impair trust settlor’s intent irrelevant for admin". Termi&atio& Renerally, a trust cannot be terminated if V spendthrift trust, if delays receipt of principle until certain age, if a discretionary trust, or support trust. This is b'c these types of provisions are considered presumptively" the material purpose of settlor.Trust may not be terminated early even if all /3s agree, unless all material purposes of trust are achieved. /rown" Tr(stee Remo,al $ (emoval of trustee if a remedy for breach of trust, not modification of trust terms. i" Traditional %pproach. @ts are authori:ed to remove a trustee who is dishonest or if serious breach of trust. @annot remove if not a serious breach or if a simple disagreement with /3. If settlor chose trustee – even harder to remove, and never if basis for removal was aware to settlor when he named the trustee, unless trustee entirely unfit to serve. ii" DT@ %pproach. can remove if ," serious breach of trust, 7" lac! of cooperation among cotrustees impairs admin of trust, )" trustee is unfit, unwilling, or persistently fails to administer trust effectively ? ct determines removal in best interest of /3s, or 1" substantial change in circumstances or all /3s request removal, ? ct finds in best interest ? not contrary to material purpose of trust, ? other trustee available.

@#

F(t(re I&terests a&+ Limits of Tr(st (ratio&
a" T0)es of F(t(re I&terests i" Re,ersio& – interest that the grantor retains when he gives away less than what he has gives away life estate in entire prop, grantor has the rest of the interest – the fee simple when life estate ends". ," R(le. if you have a contingent remainder, followed by another contingent remainder, then H always has a reversionary interest. ii" Remai&+ers – future interest in transferee that will become possessory, if at all, when all prior interests eEpire. ;eed not be certain, but only possible that 3I will become possessory. iii" I&+efeasi/l0 @este+ remai&+er – ," given to a presently ascertained person, and 7" not subject to a condition precedent other than end of previous estate" iv" 4o&ti&*e&t remai&+er – ," not given to a presently ascertained person, or 7" is subject to a condition precedent. To % for life, then to ) if ) survives 8. ," R(le. @ontingent remainders usually follow life estates'other contingent remainders. v" Remai&+er ,este+ s(/Ne%t to +i,estme&t – ," given to an ascertained person, and 7" subject to a condition su+se$uent. To % for life! then to )! if / survives %. (ule. an eEecutory interest more than li!ely follows a vested remainder subject to divestment ," @este+ Remai&+er S(/Ne%t to O)e& – ," not subject to condition precedent, but 7" class has some ascertainable members, but subject to open to let in more class members. To 89s children! % is living and has ) children. ) ascertainable children9 % can have more. 82< E.e%(tor0 i&terest C %(ts off )re%e+i&* estate 1, ' 1)

a" S$ifti&* e.e%(tor0 i&terest – if an event happens, transfers from one transferee to another transferee % for life, then to /, but if / doesnFt survive %, to @". b" S)ri&*i&* E.e%(tor0 I&terest $ if an event happens, transfers from transferor to transferee H conveys land to % when % marries /". • R(le. &Eecutory interest usually never follow life estates'contingent remainders but do often follow vested remainders subject to complete divestment. b" 4lass 4losi&* R(les 8w$e& +oes %lass %lose so t$at )ro)ert0 %a& /e +istri/(te+< i" W$e& Fee+er ies so no more children" ii" R(le of 4o&,e&ie&%e C %lass %loses w$e& a mem/er of t$e %lass is e&title+ to ta7eJ t$e rele,a&t time is w$e& mem/er is e&title+ to +ema&+ )a0me&t, &ot w$e& i&terest ,ests ," Immediate Rifts. a" T bequeaths B,-! Gto the children of / who reach 7,.G / has children alive, but no child is 7, at TFs death. @lass closes when the first of /’s children reaches 7,. %t that point no more members can join after born children cannot ta!e". b" T bequeaths B,-! Gto the children of /, to be paid to them in equal shares as they respectively reach 7,.G @ondition subsequent – so more li!e vesting. @lass closes when all children reach 7,9 if one child dies before reaching 7,, the class closes when they #ould have turned 7,. 7" *ostponed Rifts 8a< 4lass will &ot %lose (&til t$e life te&a&t +ies# If N(r a))lies r(le of %o&,e&ie&%e, m(st wait (&til o&e mem/er is e&title+ to )ossessio&# b" T bequeaths B,-! Gto % for life, then to the children of my daughter /.G / survives %. @lass def won’t close until % dies. If at %’s death, / has a child alive, class will close. If there was a child of /Fs that was born, but died before T, then anti$lapse statute applies $ class closes then too. If a child of / was born after TFs death, but died before % died. Then class still closes at %Fs death. c" Tr(st (ratio& a&+ t$e R(le A*ai&st Per)et(ities i" A *ift ,iolates RAP if it is &ot %ertai& to ,est or fail wit$i& 29 0ears after t$e +eat$ of some life i& /ei&*# ii" (%* %nalysis. ," =hat are the interestsA 7" =hich interests are subject to (%*A a" RULE! RAP onl- a))lies to %o&ti&*e&t remai&+ers, e.e%(tor0 i&terests a&+ ,este+ remai&+ers s(/Ne%t to o)e&# )" =hen does the cloc! for (%* start runningA a" Renerally, the perpetuities period begins when the instrument ta!es effect. • =ill V testator’s death • #eed'Irrevocable Trust V settlor’s death • Inter vivos revocable trust V when power to revo!e terminates usually settlor’s death" 1" =hat are the lives in beingA a" Ieasuring'Calidating 6ife $ the life in being can be any person that affects the interest. • 6ife in being must be a person alive at the creation of the interest – when the perpetuities period starts to run includes gestation period". J" #o the interests that are subject to (%* vest within any of those livesA a" ;ote. after$born scenario – red flag] ;o matter how improbable, an interest that might not vest or fail within 7, yrs is void • 3ertile octogenarian – anyone alive is capable of bearing children 17 ' 1)

*osthumous conception *recocious toddler – issue. when does law presume a child can bear childrenA Dnborn widow – law presumes that life in being can marry someone who was not yet born at creation of interest. ,. 2ickerson v. Union 0ational )ank – will creates trust to continue until %, /, ? /’s widow not otherwise identified" died, then to % ? /’s heirs. Ciolates (%*. /’s widow is unascertainable, so cannot be life in being. / is life in being. Dnborn widow scenario – /’s widow can die more than 7, years after /, only after which will the gift finally vest. Slothful &Eecutor – eEecutor does not probate estate for many years after testator’s • death 3H( @6%SS RI3TS $ two additional questions. 2" =hen does the class closeA a" *hysically close ? rule of convenience <" Is the condition precedent satisfiedA a" T bequeaths property in Gfor % for life, then for %Fs children for life, then for %Fs grandchildren.G • % is measuring life. • %Fs children $ we will !now within 7, yrs of %Fs death who %Fs children are. • %Fs grandchildren $ violates (%* $ we wonFt necessarily !now if vests'fails within 7, yrs of %Fs death. @lass close $ will close physiologically when all of %Fs children die. So possibility that it wonFt close within 7, yrs of life in being %Fs life" after$born problem".

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