trusts and estates - johnston - 2002_3

8/9/2019 Trusts and Estates - Johnston - 2002_3

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Trusts & Estates – Johnston 2002

I. Introduction to Estate Planning

a. Valuable important right to transfer property at death as you ishi. ! right to pass property

b. "oldel #.Ir#ing$ p. %$ '()i. *escheat+ pro#ision in Indian land – prohibition on Indiana passing certain parcels of land at

death,ii. The prohibition of transferring land at death e-uals a ta/ing ithout 1ust compensation

iii. e#er say constitutional right to transfer property$ but close

c. !scher !rticle – proposal to stri/e at inheritance of adult children, unrealistic$ other direction to do a3 federal estate ta4 more li/ely

d. 5angbien !rticle – focus on middle class passing property$ mostly 3 pension money, no more 3education

i. !nnuity6 ta/e retirement money and annuiti7e it 8insurance pays it out till death9

e. :hapira #.;nion atl


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#iii. Probate – smo/e out creditors 3 :C5, ?emonstrate clear title, non6title items go through unles possession demonstratesF 1eelry problems – safe6deposit bo4

. ormal Probate – super#ised by the court and protections, a#ailable if any interested party re-uests it

2. Informal Probate – unsuper#ised by the courti4. :mall Estates – e4pedite proceedings apart from informal or formal probate4. Keneral – different details 3 states

. ?omicliary Probate – probate in state here decedent as domiciled$ applicable to all personal property 8no matter here located9 all real property in state

2. !ncillary Probate – probate in state here real property is located$ clear title in state%. ;ni#ersal :uccession – Europe – property passes on death directly to elementary

recipients – heirs ta/e care of it all 8;P@ includes as option9

g. Professional Besponsibility – no layer should probate unless he considers himself competenti. :impson #. @ali#as$ p '$ ''= –

. T left homestead to ife 3 life estate$ rest to son – house$ or land tooA2. Probate @ourt for purposes of ill construction – try to determine intent from four

corners$ unless ambiguity

a. Probate @ourt – determine intent as e4pressed in the ill b. Keneral Jurisdiction – determine actual intent of T – malpractice casesc. Probate @ourt not ta/e e4trinsic e#idence$ and held all land

i. E#en though layers notes say only means house%. Third party beneficiary !L sue layer of T – e#en though no pri#ity

a. E4ception to Pri#ity – oreseeability of cause of action :C clear b. :ome states #ery limited – only mista/es on face of ill, formalities rong,c. :ome allo hen layer negligent for not drafting clear ill

ii. ?isco#ery Bule 6 :C5 not run till person finds out$ or should ha#e /no$ about in1uryiii. :mith #. 5eis $ @! – 5ayer must /no la or research it 6 reasonable efforts to find outi#. "orne #.Pec/ham – layer obligated to consult or find specialist e#en if beyond on e4pert.

#. "ot7 #. inyard$ p MM –. :ame layer dealt 3 T and Ts daughter, st ill left daughter and son a dealership$ but

changed to lea#e both for son, layer shoed daughter st one only$ and daughter reliedon that to drop a suit

2. CT malpractice – layer had a iduciary ?uty to daughter$ as her layerFa. 5ayer C duty to disclose e4istence of ne ill against clients ishes !n Estate Plan by ?efault

a. Intestate :tatutes – disperse estate in manner e thin/ they ould ha#e if left a ill – #aries state to stai. Partial Intestacy – ill that doesnt co#er all real or personal property 8no residual clause9

ii. :tate here real property located go#erns disposition of that propertyiii. "eirs – those ho ta/e hen no ill, issue and descendents lineal descendents

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b. ;niform Probate @ode 8''09i. N states adopted, others lifted parts of it

ii. O2602 – :hare of the :pouse – first gets statutory amount. Cnly spouse$ spouse gets all but parent gets N of hats left after statutory amount to

spousea. :pouse has pre#ious /id and /id 3 T, :ur#i#ing spouse gets $ and Ts /id gets

, b. :ur#i#ing spouse gets 3

2. Qhen spouse has /ids 3 other$ spouse and parents split%. Qhen T has /ids 3 other$ spouse and /ids split

iii. O260% – if left o#er from abo#e$ or no spouse – all go to descendents, then parents, thensiblings, then grandparents, then aunts$ cousinsF

i#. O260 6 o heirs$ then escheat to state

c. :imultaneous ?eath

i. ;niform :imultaneous ?eath !ct – beneficiary predeceased benefactor . Qills ha#e implied @ondition of :ur#i#orship – otherise 5apses 8statutes9

a. Qills should anticipate, otherise assume beneficiary predeceased and try to /e benefactors intent – only ha#e probate for propertyF

2. Intestacy has implied @ondition of :ur#i#orshipii. Insurance @ompanies H must sur#i#e by 20 hours to not ha#e predeceased

iii. Joint Tenancy – if both die simultaneously$ to each heirs – treated as tenants in common

i#. Janus #. Taraseic7$ p )( –. Tylenol cyanide – " died first$ e#en though too/ at same time$ Qs family got G and "

mom nothing – b3c insurance ent to Q estate and no probate,a. :ur#i#al legal decision based on medical e#id. – usually brain death b. e 5a – to sur#i#e spouse$ 20 hours after st died$ and by clear and

con#incing e#idence 8;[email protected]

d. :hares of ?escendentsi. ! dies$ son < and ? ali#e$ but @ predeceased, @s sons ta/e representationF < H 3%$ ?H 3%$

@s sons$ H3M$ K H 3M 8split e-ually dads share9ii. odern Per :tirpes 8!merican9

. Ko to the generation ith at least one issue li#ing$ then di#ide among that generation anif one predeceased$ their issue ta/e by representation

a. Per @apita ith Bepresentation2. ! dies$ both /ids dead < and @, their /ids ali#e$ < has one$ ?$ @ has to$ E and , all

three split e-ually. If E as dead but E had to /ids$ ? and get 3%$ and Es to /ids

split their 3%iii. English Per :tirpes 8:trict Per :tirpes9. ?i#ide by deceased ne4t generation$ e#en if none ali#e$ and issue ta/e by representation2. ! dies$ both < and @ /ids are dead$ and < has to /ids and @ has one,


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. If three /ids$ each get 3%, but if 2 already died$ li#ing gets 3%$ but then rest is splite#enly among ne4t generation

e. egati#e ?isinheritancei. @ommon 5a – Intestacy not recogni7e disinheritances

. ust account for e#erything, if property left$ goes intestate and not pay attention to adisinheritance – ma/e sure property not lapse 8beneficiary predeceased9

ii. ;P@ – if #alid ill$ recogni7es disinheritance and acts as though person 8son9 predeceased and passes property on to ne4t heirs

f. :hares of ancestors and collateralsi. Table of consanguinity – p '2

ii. Parentelic 8;P@9 – loo/s first to lineal$ then issue$ then siblings$ then grandparents$ then auntsFiii. ?egree of Belationship – count degrees in the boo/

g. !dopted @hildren and Intestacyi. on6marital children – common la didnt ac/noledge

ii. :tatutes no – treat same as natural children 3 grandchildren

. Ruestions still ith father 8identifying$ but 3 mother get full rights92. !fter child adopted$ loses right of inheritance through natural parent

a. ;P@ says CT lose right through natural parentFiii. Trimble #. Kordon$ p

. ather ac/noledged paternity$ but since didnt marry the mother$ child not entitled torights of intestacy by statute

2. @ourt says *;nnecessary ?iscrimination+ – CT ha#e to ha#e marrieda. :till must pro#e paternity – ?! ma/es easier noF

i#. "echt #. :uperior @ourt$ p). T /illed self and left letters to gi#e sperm to girlfriend,

a. Ts /ids protested that Violates Public Policy

b. Bely on ?a#is case – married couple attempted and then got di#orced and fro7ensperm not property or persons

c. Jhordon – unmarried omen e-ually entitled to infertili7ation – father not ha#e orry about paternity

d. Parapai4 case 8rance9 if man intended release of sperm$ can release2. @ourt 6 :perm property and gi#en inter #i#os gift – not #iolate public policy 8artificial

insemination9%. otes

#. Qoodard case – mother has tins 3 posthumous conception, ants them to count as heirs ofhusband to get federal funds

. :J@ determines they are heirs

a. Cne year :C5 for nonmarital /ids to bring suit after time of death b. ust pro#e paternity>

i. ather consented to posthumous conception 8consent to free7ing CT9c. ather agreed to support children posthumously 8not ha#e to be ritten9d. Qoodard – father died early but later ife used sperm to ha#e /ids – :J@ said

still heirs$ but non6marital /idsi. If sho he consented and his$ and agreed to support

ii. ! – one year :C5 from day of death for /ids to bring suit

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iii. ? and 5! specifically say not a parent

h. !d#ancements pg. 2(i. !pplies only in intestacy

ii. T made an inter #i#os gift to one child before died$ counts as part of sum inherited. :atisfaction – similar$ but thats for a hen theres a ill

iii. @ommon la – assumption that the inter #i#os gift I: an ad#ancement to hat child ould get

from the estate – counts in that /ids share. If child dies before parent ho dies intestate$ and ad#ancement affects grand/ids

i#. ;P@ O 260'– not an ad#ancement unless ac/noledged to be in riting, here donee predeceases not ta/en as an ad#ancement against donees heirs

#. any states changed that CT presumed to be ad#ancement$ but Bebuttable presumption#i. "otchpot – /ids all got gifts$ so add all gifts to estate$ then di#ide that and attribute gifts to each

persons share, if gift e4ceeds share$ then /id /eeps but di#ide rest 3o the e4cessi#e amount

i. Transfer of E4pectancyi. or ills and intestacy

ii. "eirs !pparent – /noing ho heirs ill be if person dies intestate

. @an CT transfer anticipated inheritance – no property rights$ mere e4pectancy2. @an be used as consideration in e-uity if fair all around

j. Incapacity of inor to anage Propertyi. inor doesnt ha#e capacity to dispose of property H cant transfer H cant manage it

ii. @ourt Be-uires appointment of Kuardians. Kuardian of the Person – person responsible for care and maintenance of the child2. Kuardian of the Property – manage the assets of the child – @onser#ator %. @ourt appoints guardian for the person3property and guardian ad litem to super#ise the

guardiana. E4pensi#e$ e#ery action must go through the court

=. Kuardians preser#e property till ( or 2, only use income to support child$ not principlsome gi#e title and in#estment poer as trustee

iii. ;niform Transfers to inors !ct. ame somebody to be @ustodian – holds property for benefit of child2. !ll las apply under the act$ and not need to create a trust%. @heap$ nothing through the courts, not same fiduciary duty, must be created through i

or during lifetimei#. Trusts – easiest$ most fle4ible, must be created through ill or during lifetime

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c. 5egal title passes to slayer$ but e-uity hold him3her to be constructi#e trustee forheirs or ne4t of /in H legal fiction H @onstructi#e Trust

i. @ourt here creates constructi#e trust=. ;P@ – slayer doesnt get anything$ goes to Ts heirs$ not murderers. Varies by state – some need to be con#icted$ some 1ust preponderanceF

ii. ?isclaimers –. ?onee can refuse to accept H disclaim the gift and a#oid ad#erse ta4 conse-uences2. Validly disclaimed gift passes as though donee predeceased T%. @ommon 5a – intestate heirs recei#e fraction3all of estate by operational la$ and @!

CT disclaim or stop it – can only disclaim if testatea. If try to disclaim still treated as though your and ta4ed b. :till disclaiming can allo gift to go on to ne4t heir$ and transfer ta4 a#oided

i. !#oids paying to estate ta4es$ 1ust the first one. :ince million e4empt from estate ta4$ can disclaim second

million$ goes to ne4t heir$ and neither ha#e to pay estate ta4esinstead of paying tice

ii. !#oid paying a gift ta4 and estate ta4F 1ust pay estate=. @reditors can be a#oided by disclaiming – passes by donee hose creditors ould ta/e

to donees heirs and safe from creditors. ederal :tatute – ta4 code O 2( – disclaimers

a. :tates ere all different$ no #ery similar> e-ual treatment 3 testate andintestate, but must file separately$ state and federal and diff. :C5

i. "as to be in ritingii. Becei#ed by transferrors e4ecutor$ etc.

iii. o later then ' months after death, or ' after 2i#. @ant accept interest from gift 8di#idends9 and then disclaim#. Passes 3 C direction of person ho disclaimed

b. @an ha#e partial disclaimM. Troy #. "art$

a. ?onee on edicaid$ and hen sister died$ other sisters anted him to signdisclaimer – he did and then still recei#ed edicaid

b. Public Policy – cannot disclaim and still get edicaid$ must disclose thatdisclaimed and then still lose edicaid benefits – treated as though didntdisclaim 8e#en though can disclaim to escape creditors9

i. ust repay all funds gi#en after disclaimed – un1ust enrichmentii. ederal crime for layer to assist recipient in disposing assets to stay on

edicaid

III. Qills> @apacity & @ontests

a. @apacity H ( years old and of sound mind and memoryi. Be-uire Testamentary @apacity>

. Ensure the ill is Ts true desire – hat T really ants2. "eirs ha#e certain rights to be assured if disinherited done by someone 3 capacity

ii. T must>. Dno nature and e4tent of property2. Dno persons ho are natural ob1ects of testators bounty

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%. Dno signing ill and hat it means3says3plans=. "o elements relate so as to form orderly plan for disposition of property

iii. Issue of 5egal competency. Estate of Qright – all testified that not of sound mind b3c T did some cra7y stuff 8li#ed i

shac/$ pretended to be dead to scare peopleF9a. @ourt – passed, test – isolated acts$ foibles$ idiosyncrasies F ot enough and do

not bear on testamentary act2. In re :trittmater – court found oman incompetent hen she left all to QP b3c she a

/non man6hater a. :et ill aside 6 :eems se46biased F probably better argued under insane delusio

%. To draft a ill for someone incompetent is against legal ethics=. E#idence to pro#e lac/ of competency

a. edical itnesses – not as e4pert$ but as obser#er, @an ha#e e4pert re#ieingfilesF

b. 5ay persons – offer facts$ gi#e lay opinionc. ! lot depends if enough e#idence to get to 1ury F

i#. ! person 3 a conser#ator can e4ecute ill for them$. ;nder conser#atorship$ still lose right to contract and ma/e gifts – higher le#el then ill

2. @ompetence to get married 5CQEB then to ma/e illa. 5ee – deed and ill made same day$ ill CD but deed in#alid

b. Insane ?elusioni. 5egal$ not medical concept – T belie#es facts despite all e#idence and reason to the contrary$ an

conducts as though facts are true H acts 3 insane delusion. ?ifferent then mista/e$ b3c there if presented 3 facts ould#e reali7ed truth

a. Insane delusion> *all Irish ha#e red hair$ but 0 Irish brunettes in front of you+2. The pro#ision caused by insane delusion fails, if all made under it$ all fails

ii. If there as !L basis for the belief$ then CD$ e#en if belief rongiii. In re "onigam – p. MM – " obsessed 3 idea ife ha#ing affair

. @hanged ill to gi#e her nothing$ but minimum so couldnt ta/e against2. Bational in all other aspects but the affair %. Jury found no reason or basis for belief at all$ so pro#ision #oid by insane delusion

c. !nte6ortem Probatei. Person can go to court and sho all names mentioned in all ills and sho testamentary capaci

and no undue influence H declares #alidity of the illii. @an do irreparable damage to family b3c urges /ids to pro#e parent incompetent$ and if lose can

disinherited – if later ill can contest again

d. ;ndue Influence – similar to testamentary capacity – but different$ 1ust go hand in hand

i. Jurisdictions define or 1ury determines. any$ may ha#e partial in#alidity to specific pro#isions

ii. Typically>. Testator susceptible to undue influence 8elderly$ diminished capacityF92. Influencer had


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a. :on 8from 2d9 made the ill 8layer9 – facts of disfa#oring grandchild arecircumstantial

i. :ome states ha#e Presumption of ;ndue Influence – beneficiary inconfidential relationship and in#ol#ed in ma/ing the ill 8layer9

. Then layer must pro#e C undue influence 8"!B?9 b. ot able to pro#e undue influence 6 pro#ed relationship etc$ but not that Ts min

as ea/F if that$ then burden ould#e shifted to layer i#. In re Qill of oses – p ((

. T left tons of G to young layer6lo#er 6 another layer drafted ill 3o lo#ers help2. :ister contests b3c layer relationship should create presumption of undue influence

a. 5ayer6lo#er had represented her in other aysF 1ust not 3 ill%. Qhen a layer is a beneficiary$ then rebuttable presumption arises 8unless relati#e9=. @ourt anted drafting atty to pry more about sister3family, drafter felt complete strong

intellect and only as/ed minimal -uestionsF seems to ha#e come out rong. otes

a. on6marital relationships are e#idence of undue influence 8se4 ma/es peoplesusceptible to deception9

#. In re Daufmanns Qill –

. Kay lo#ers$ left all to his lo#er 2. E4plained it in ill$ and in letters to family as/ing not to contestF

a. Qas all turned around as e#idence of undue influence b. Totally rong outcomeF.c. Pro#isions e4plaining hy disinherit can be turned around as still undue influen

%. otesa. Video tapes can be good$ but only if loo/ing strong b. !ffida#its can be used – psychologist tal/ to T on day e4ecuted$ then 1ust use

affida#itc. 5ayer can be name as e4ecutor – Johnston thin/s it should be unethical for

layer to name self as 8creating business for self9 but practice on rise

i. !nd if named$ should ha#e T e4plain in on handriting or on #ideo – ilarge e4ecutors fee

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SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS

g. raudi. Pro#ision in ill procured by fraud is in#alid, remaining stands unless fraud goes to entire ill

ii. raud consists of>. alse statements of material facts

2. Dnon to be false by the party ma/ing the false statements%. ade 3 the intention of decei#ing the T=. !ctually decei#ed the T. @auses the T to act in reliance on such statements

iii. Types>. raud in E4ecution> T tric/ed into signing document not /noing it to be illF2. raud in the Inducement> T as fraudulently induced into ma/ing a ill 8in return for

false promise of careF9 or pro#ision 8e4cluding child b3c said deadF9a. Person misrepresents facts that causes T to e4ecute the ill, include pro#isions i

fa#or of rongdoer$ to refrain from re#o/ing or from e4ecutingF

IV. Qills> ormalities & orms

a. !ttested Qillsi. Be-uirements of due E4ecution – #ery strictF must comply 3 statutes

ii. :tatute of Qills – =0. Prior to it$ couldnt de#ise real property at death2. 5a enforced primo genetor %. Be-uired ill to be in riting$ but not signed

iii. :tatute of rauds – M))

. eed three itnesses2. In riting and :igned by testator

i#. Qills !ct – (%) – increased formality. To itnesses – present at same time$ sign in alls presence2. In riting Testator signs at the end of ill

#. ;P@ O2602. In riting2. :igned by at least to indi#iduals$ 3in reasonable time after T signs or attests to

signature 3 ill – rela4es formalities b3c not all need to be done in presense%. "olographic Qill – if not meet abo#e$ but signed and material portions in Ts handriti=. Intent of document can be supported by e4trinsic e#idence, for holographic ill$ parts n

in handriting#i. any instances formalities arent met – and ill3codicil not enforced

. Purposesa. Bitual unction

i. @ommunicates eight of action to T$ ma/es it clear binding at death b. E#identiary unction

i. To reflect intent of T$ since only operatable at death and T cant testifyc. Protecti#e unction

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i. To safeguard against o#erreaching beneficiaries 8undue influence issues$etc.9

2. Qill substitutes allo for other ays 3o formalities to pass lots on at death$ and no problems so ills shouldnt ha#e such formalities too

#ii. Be-uirements #ary from state to state – usually T must sign at end of ill$ and in presence of 2 % itnesses

#iii. In re Koffman – p 22). ?idnt proclaim 3 ac/noledge signature 8testator9 before itnesses at same time F

a. 5ine of :ight rule – needed to see signature hen ac/noledging it, see itnesssigning 8cant see through the all$ e#en if in ne4t room9

2. ?oesnt seem itnesses ha#e to sign in front of each other$ only in front of Ta. Qills !ct – Implied both need to sign in each others presence b. odel Probate – @lear must sign in presence of each other c. ;P@ ould#e been different b3c itnesses can sign after T and no line of sight

necessary 8nodding to it in poc/et ould#e been enough9%. !tty probably ould be liable in malpractice b3c not present and didnt sufficiently

e4plain to Ti4. Be-uirement of Presence

. 5ine of :ight Bule 6 T must be capable of seeing itnesses signing it 8@uningham9, maynot ha#e to actually see$ but must be able to ere T to loo/ 8e4ception for blind9

2. @onscious Presence – /no through general conscious 8hearingF9 that being signeda. Cpposite of line of sightF b. C#er the phone not enough

%. o re-uirement that ills be notari7ed e4cept for 5!4. Be-uirement of :ignature

. 5etter U sufficient if cant rite, initials enough if pro#e intent – intent /ey

4i. Qitnesses. ost states$ itnesses must be disinterested – not beneficiaries in ill

a. @ommon 5a – hole ill in#alid unless 2 disinterested itnesses b. Purging :tatutes – not in#alidate hole ill$ 1ust interests of the itness

i. :ome states only purge beyond hat ould get in intestacy2. Qitnesses must be @ompetent%. Estate of Parson – p 2%M

a. 2 out of % of the itnesses ere beneficiaries – only one not b. If gifts to the itnesses in#alid$ goes intestate 8no residual pro#ision9 H partial

intestacyc. Cne itness tried to disclaim the gift to ma/e others #alid, but disclaimers only

go bac/ to the time of the transfer$ Ts deathi. !t time of e4ecution of ill$ still no disclaimer so still interested party an

those gifts still in#alidii. Purging statutes eliminated those gifts

d. ?efeated intent of T 3 this – @! no allos itnesses to be beneficiaries 8sodoes ;P@9

=. T usually must see pen on paper of itness signing

4ii. !dditions after signature – T rites in longhand$ at end$ and signs again underneath. @ourt tends to be more lenient if not dispositi#e

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2. ust be added before T signed and before itnesses signed%. If belo signature line after signed$ it ould be codicil and in#alid b3c not meet

re-uirements

4iii. Becommended ethods of E4ecuting a Qill. Bead o#er ill2. asten pages tightly together, and number pages

%. a/e certain T read and understands=. 5ayer$ T and itnesses in room and no one lea#es till all done. 5ayer as/s T – is this your illA "a#e you read and do you understandA ?oes it dispos

of property in accordance 3 your ishesAM. ?o you re-uest itnesses to itness you sign illA 8name them9). Q3 all atching$ ha#e T loo/ o#er and sign e#ery page and at end(. Cne itness reads attestation clause$ 8unless self6pro#ing affada#it at end ;P@ style9 an

signs underneath it'. Each itness signs and initials e#ery page$ 3 address ne4t to signature0. :elf6pro#ing affida#it typed at end of ill$ all done right and under oath and then

notari7ed

a. ;P@ can combine attestation clause and self6pro#ing4i#. :elf6Pro#ing !ffida#it – searing hat happened and signed and notari7ed H separate from il

or combine – ma/es probate easier$ e#en if itnesses not a#ailable. ot necessary but easier$ ;P@ created and many states adopted2. Cne step – T and notary all itness and sign once%. :tep6 to – itnesses sing ill and then affida#it

b. :afe6Deeping Qillsi. Put in safe deposit bo4$ etcF

ii. Kood 3 layer$ b3c if T ants to change$ and do legally 3o orriesFiii. Begister of Qills – cler/ at probate court

c. @urati#e ?octrinesi. ista/e in e4ecution of ill H cure denied

ii. In re Pa#lin/os Estate – p 2=). Bussian couple$ not spea/ English$ mista/enly signed the others ill – clear accident2. Intentions are clear$ and court ants to uphold ill$ but ont – clear language of the la

need to ha#e signed on illa. Today ould li/ely find ay to uphold, in re :nide similar but court upholds by

reforming ill to carry out intent 8could use ambiguousF9%. ust follo re-uired statutory language=. o ?octrine of Beformation in 5a of Qills

iii. Peters – notari7ed before it as itnessed, not itnessed 3in reasonable time after T signed, nsatisfy formalities

i#. In re Qill of Banney – p 22. 5a firm using one step approach – itnesses signed the self6pro#ing affida#it and no

an attestation clause$ at the end of the ill2. 5iteral compliance H CT count as attestation clause and not satisfy re-uirement for i%. Substantial Compliance – by clear and con#incing e#idence that the Ts intent to ha#e

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a. Q3 e#idence$ and substantial compliance$ then #alid b. ust come afully close to full compliancec. 5i/e other countries las

#. ;P@ O260% – gi#es court poer to dispense 3 some formalities hen clear and con#incinge#idence that decedent intended document to be ill H ?ispensing Poer

. "armless Error 2. ot focus on *near miss+ li/e substantial compliance%. ot many states follo> hesitant to gi#e that poer to the Probate @ourt

a. Qills !ct H 9 in riting 29 signed by T %9 attested by itness

d. "olographic Qills – p 2M2i. "and ritten and signed by T H not need attesting itnesses

ii. :ome states$ entire ill must be ritten by T. Cthers$ 1ust certain pro#isions2. Problems 3 stationary$ certain ords ritten by othersF

iii. ;P@ O2602 – liberal language H substantial pro#isions must be in Ts riting. @an then loo/ at non6T handriting to determine testamentary intentF

i#. :ome states must be dated

#. Estate of Johnson – p 2M=. :tate recogni7es holographic ills – T filled in ill form$ had it notari7ed$ but ne#er had

itnesses sign2. ust be able to determine from the handritten ords the testamentary intent – any

printed ords must be entirely re1ected as surplussagea. Cnly had *estate+ in on handriting$ but ignored conte4t b3c not handritten

%. uder case similar$ but alloed b3c ritten *I gi#e toF+ and court paid attention to bot printed and ritten ordsF Johnston li/e betterF

#i. :tatutory orm Qills – some states allo printed form ills that are ell done$ and made part oa statute – still must be e4ecuted in re-uired manner

#ii. :mith case – letter to layer saying hat anted in ill – layer ne#er made ill$ but letter is

clear . 5etter CT count as a holographic ill b3c only intended as a letter$ not as a ill2. Intent is most important%. !tty. !lso ritten on it shoing not thin/ ill – may be liable for malpractice

#iii. Dimmels Estate – p 2). 5etter from father to sons – saying hat he anted sons to ha#eF

a. Qas letter intended to be his illA @asual signature suggests notF *father+2. :igning in a casual ay may indicate not intend to be a illF%. :ympathetic opinion and court said #alid illF

e. @onditional Qills –

i. Qill states a specific e#ent$ trip$ etc. that may result in death 8not returningF9ii. oti#ation for ma/ing the ill$ so ill can be probated e#en if death caused by something else

ill is CT 1ust #alid on condition of that trip$ etc.. Eaton – e#ent not cause death$ but upheld as only testamentary document of deceased

f. Be#ocation of Qills

2


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Qills are sub1ect to modification or re#ocation during Ts lifetime

i.


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c. E-uitable ?octrine6 court may disregard re#ocation if finds the act of re#ocationas based on a mista/e of la or fact and ouldnt ha#e re#o/ed if T /ne truth

2. @arter #. irst ;nited ethod. @hurch of !lbany – p 2(Ma. T made handritten changes to ill and struc/ out parts of itF handritten not

#alid changes$ ne#er signed b. If T /ne changes erent #alid$ ould she ha#e struc/ out pro#isions stillAc. ?ependent Belati#e Be#ocation and Be#i#al applies and then struc/ out

pro#isions become #alid$ if thin/ T ould ha#e not struc/ out 3o changesi. Try to sal#age Ts intent, ouldnt ha#e anted intestacy

ii. Just loo/ at changes – 1ust ma/ing gift bigger3smaller$ but still ould agift to person$ rather then intestacy 3 no giftF

. @ompare distributions to tell intent – presumption against intesta%. ?octrine of Be#i#al=. Estate of !uburn – p 2'2

a. Valid 2d ill re#o/es st ill by inconsistency – then later re#o/es 2d ill$ doesst ill become #alid again through ?BBA

i. Intent as to re#i#e st ill$ and T thought doing so by re#o/ing 2d. ?BB applies in this case – carry out intent – in a state that

recogni7es re#i#al2. This state not recogni7e re#i#al – ?BB can apply to 2d though so

closer to intent 8not intestate9 b. This state H 5imited ?octrine of Be#i#al – only re#i#e earlier ill if re6e4ecuted

or publishedi. ?one by statute – restricted re#i#al

ii. @odicil H republishing ill. English Bule 8@ommon 5a9 H no part of ill is effecti#e until T dies

a. a/e 2d ill$ e#en if re#o/e st$ and then later re#o/e 2d$ still st good b3c bothstand until death> so re#o/e 2d ill$ then no need to re#i#e st b3c that still good*automatic re#i#al+

i. 5i/e 2d ne#er e4isted b3c nothing #alid until deathM. ;P@ O260' – allo re#i#al of st ill if e#ident from e#idence T intended to re#i#e s

a. If 2d ill holly re#o/ed st ill$ e#en hen 2d re#o/ed st still presumedre#o/ed 8can rebut by Ts statements and all circumstances9

b. If 2d only partly re#o/ed first 8li/e a codicil9 and 2d re#o/ed$ st still #alid and aof it re#i#ed

i4. Be#ocation by Cperation of 5a

. @hange in amily circumstances – most states$ di#orce re#o/es any pro#isions in ill foformer spouse

a. To /eep former spouse in$ must ma/e ne ill and include b. Qill read as though former spouse predeceased T

2. ;P@ O26(0= – re#ocation by la operates to di#orced spouse and relati#es of di#orcedspouse

%. @ommon la – marriage after e4ecution of ill not matter, but marriage and then a babre#o/es the ill

=. :ome states – 3 statutes 6 marriage not affect ill at all 8some follo @59. :ome states – no statutes –

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a. ost – marriage re#o/es ill only to e4tent of pro#iding ne spouse 3 anintestate share 6 6 after that share$ ill operates as as 3 remaining assets

b. inority – marriage re#o/es ill entirelyc. Qill not re#o/ed at all in either case if>

i. Qill pro#ision for ne spouseii. :ay ne spouse omission intentional

iii. !ppears ill made in contemplation of marriage

g. @omponents of a Qill

i. ?octrine helps determine ho ta/es hat property hen there is a document and act note4ecuted 3 testamentary formalities – use e4trinsic e#idence

. Incorporation by reference2. !cts of independent significance

ii. Integration of Qills. !ll papers present at e4ecution and intended to be part of ill are integrated into ill

a. Problems hen not fasten papers together ell

2. :ufficient connection of language carried o#er from page to page – internal coherenceiii. Bepublication by @odicil

. Qhen ma/e a codicil$ ill is considered *republished+ or re6e4ecuted b3c updating ill2. Qill must be prior #alidly e4ecuted hen codicil made to itF

a. If codicil for st ill$ e#en though 2d made and re#o/ed st$ st republished andre#o/es 2d by implication

i#. Incorporation by Beference – ;P@ O260. Qriting in a ill manifests intent and describes riting sufficiently that is in e4istence

hen ill e4ecuted – that riting can be incorporated into the ill – e#en though notha#e to satisfy testamentary formalities

a. Be-uirements>

i. ?ocument in e4istence at time ill e4ecutedii. Qill e4pressly refers to document in present tense

iii. Qill must describe so clearly that no mista/e as to hat ritingi#. T must ha#e intended it to be incorporated in o#erall testamentary plan

2. :tates 3o incorporation by reference use re6publication by codicil broadly#. @lar/ #. Kreenhalge – p %0%

. T made ill in ')) and told e4ecutor about noteboo/ 3 list of be-uestsFnoteboo/8')29 mentioned in ill$ as memorandum$ and e4ecutor /ne about it. T made changeo#er time to noteboo/ and gifts – in '(0 made to codicils changing ill

a. E4ecutor folloed all e4cept for gi#ing one gift from noteboo/ b.


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. Qill may refer to specific list disposing of tangible property 8not real estate$ not money9not disposed of in ill

a. T must sign$ and describe items and de#isees 3 reasonable certainty b. ay be prepared before or after e4ecution$ be altered

i4. Johnson #. Johnson – p %. T typed ill$ then rote on bottom G0 be-uest to brother and signed and dated.

E4pressed to all that it as his ill 8he had one9 – court said the 0G bit as a codicil$saying made codicil to ill

a. The holographic codicil republished and #alidated the ill$ e#en though the illalone as in#alid 8not holographic$ not itnessed9

b. :eems to be rongF ho ha#e codicil 3o illAi. :hould ha#e used incorporation of reference$ 3 the holographic ill

incorporating the typed oneF

4. !cts of Independent :ignificance

. Qill can ma/e reference to acts outside of the ill – non testamentary acts, resort to thefacts outside the ill to determine beneficiaries

2. The acts ha#e significance apart from the ill – dont effect the ill%. ;P@ O262

a. Qill may dispose of property by reference to acts and e#ents that ha#esignificance apart from their effect upon the dispositions made by the ill

b. ay occur before or after e4ecution of the ill$ before or after Ts deathc. *I lea#e my car at time of death to my niece$ and G0 to each employee+ right

before death$ T bought ne car and fired and hired ne employees – all #alid=. The act must ha#e significance in and of itself – cant 1ust be to manipulate the ill

a. Qhere something is – also there to /eep it safe 8loc/ bo49 in a draer$ no b. Principle moti#e can CT be for the ill$ but for some independent reason

V. Qill :ubstitutes> on Probate Transfers

a. Transfer made at death$ by la – no probate H ost deal 3 life insurancei. 5ife Insurance issues – can beneficiary of life insurance policy be changed by ill

. ;sually Insurance co. re-uire ritten notice of change – ill not or/ ii. Payable on ?eath @ontracts increased – IB!s$ Betirement E-uity !ct F

. If contract in#alid ill pass under ill to beneficiaries

b. Qilhoit #. Peoples 5ife Insurance @o. – p%%i. 5ife insurance policy left funds to Qife$ ho then left in ban/ as trust for C – C made ill

lea#ing all to Qilh. Qife also left all funds to Qilh – but if not a #alid PC?$ b3c not in real trust$ then goes

bac/ to her estate and goes through illii.


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2. o condition of sur#i#orship in ill substitutesi#. This is minority #ie – most states no uphold PC? contracts

c. ;P@ O26)0M – :ubstitutes the issue of the named beneficiary ho does not sur#i#e the benefactor d. Estate of "illoit7 – p %%M

i. In#estment club$ all buy stoc/ and ha#e interest in partnership – pro#ision if die$ interest goes tthe spouse – is this an ineffecti#e attempt to run around la of ills$ since partnership agreemennot a #alid ill

ii. @ourt – #alid third party beneficiary contract$ payable on death – #alid ill substitute and notha#e to conform 3 la of ills

iii. Precedent from carthy case – court departed from it and recogni7ed it

e. ;P@ 6 OM60 – Pro#ision for a non6probate transfer on death in a contract is non6testamentaryi.


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#ii. ;P@ OO M620$ M622). Joint and sur#i#or accounts$ agency account$ and payable on death accounts all alloed

Totten Trust treated as payable on death2. E4trinsic e#idence alloed to sho purpose of account 8hat meant to be9%. OM62 – during lifetime 1oint accounts allos access to proportion of each deposits$

unless clear and con#incing e#idence to contrary=. PC? beneficiary cannot be changed by ill, issue of beneficiary can ta/e 8O26)0M9

h. Joint Tenancies in land most common ill substitute – 8poor mans ill9i. If ant to lea#e your share in ill$ must transfer out and then bac/ to ma/e it tenants in commo

ii. :ometimes turn into a 5ife estate 3 remainder to a#oid probate

VI. @onstruction of Qills

a. ;se of E4trinsic E#idence

i. If plain meaning of ill clear on its face$ C e4trinsic e#idence alloed to sho meaningii. :ome 1urisdictions treat as presumption that can be o#ercome 3 strong e#idence of a contrary

meaning

iii. Parole E#idence can be used to resol#e ambiguities in ill>. 5atent !mbiguity

a. ot appear on face of the ill but hen applied to T & facts$ can ha#e more thenone meaning

2. Patent !mbiguitya. Qhen uncertainty appears on face of the ill – hen or math doesnt add up

right 8!c/eley9 b. If court can correct from = corners$ it ont allo e4trinsic> traditionally not use

e4trinsic at all to correct$ modern allos%. any 1urisdictions more restricti#e 3 Patent then ith 5atent, some treat the same

a. In Estate of a. In Be Estate of :mith – be-uest seems unclear to hich location – court loo/ed

language and not allo e4trinsic$

#. E-ui#ocation – to or more people or to or more items of property meet same description Hambiguity

. 5ea#e to someones ifeFlater person gets di#orced and remarriedFe4trinsic alloeda. 5atent ambiguity 8Ihl #.Cetting9

#i. leming #. orrison – p ==. T made ill to lea#e all to a girl$ but told layer really 1ust a fa/e to get her to ha#e se42. ?idnt comply 3 all statutory re-uirements 8only 2 itnesses not %9%. If re-uisite intent not there 8since it as a sham9 then #oid

(


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=. @ourt gets around e4trinsic e#idence by saying one itness not count b3c /ne shamF#ii. Estate of Bussell – p. =)

. T holographic ill lea#ing e#erything to friend and dog – unclear ho much to each,Qhen dog dies$ heirs contest saying all assets should go intestate$ and dog cant ta/eunder a ill, friend ants E4trinsic e#idence to sho Ts intent> lea#e all to friend$ andto care for dog

2. 5atent ambiguity as to ho *ro4y+ as 8dog9 so court used e4trinsic there, but not todetermine amount left and hyFormal !pproach – half to dog and #oid

#iii. ista/es. isdescription of property – Patch #. Qhite – rong lot W$ 1ust stri/e that out and not

#oid hole thing – alloed e4trinsica. electi#e share of 3% or that may be ta/en from decedents estateinstead of ta/ing under the ill

b. @5 – electi#e share only out of probate estate$ so easy to pass things so ouldntgo to probate and lea#e that estate small

%. o> ;P@ H augmented estate, homestead e4ception$ family alloance

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ii. @ommunity Property – each on undi#ided of all property, each can de#ise as li/e,. ot part of property – gifts$ be-uests and inheritance 8remains separate9, property

ac-uired before marriage remains on2. ?i#orce is easy b3c each already ons half %. '. community property states

iii. Cther Bights. :ocial :ecurity – cant shift to anyone but the spouse 832 of all92. Pri#ate Pension Plans – EBI:! – must go to or/ers spouse$ unless the spouse

consents to changing the beneficiary%. "omestead – @reditor cant ta/e home from spouse and children – at death cant lea#e

spouse and children destitutea. ost states put limit on amount of house protected 8many not much at all9

=. Personal Property :et !side – can ha#e certain items of property e4empt from creditors8li/e homestead – #aries from state to state9

. amily !lloance – some states – may petition for alloance to pro#ide frommaintenance during administration of estate

M. ?oer and @urtesy – protection against disinheritance – most states abolisheda. ?oer – if " dies$ life estate in 3% of all his real property

i. Inchoate ?oer – interest e4ists during life of spouse$ " can transfer all property$ but Q still has 3% interest in it – ife can ai#e

b. @urtsey – " gets life estate in all of Qs property$ only if issue as borni#. odern> Electi#e :hare 8forced share9

. ;sually 3% $ spouse can decide if ta/e hat as left them in the ill$ or the sharea. :ome state 1ust probate estate$ others 8and ;P@9 augmented estate – probate and

non6probate estate combinedi. :ome states gi#e fee simple in the 3%$ some only gi#e life estate in 3%

b. ;P@ handout – schedule to determine electi#e share – ta/es into account length marriage$ non6probateF

2. ust file election

#. In re Estate of @ross – p =((. Q in nursing home$ incompetent$ on edicaidF court appoints to decide hether to

elect against ill, has to try$ b3c otherise could lose edicaid b3c didnt get the moneyand it ould still count

a. If ade-uate to pro#ide for spouse during rest of life 8life e4pectancy ta/en intoaccountF9

2. ;P@ O2622 – if guardian ta/es electi#e share to support spouse$ then amount thate4ceeds hat spouse originally left goes into custodial trust and ill go bac/ to estatehen not needed 8hen spouse dies9 then distributed according to ill

#i. In re Estate of @ooper – p ='2. Kay partner not able to ta/e electi#e share – gay relationship not spousal relationship

a. E#en though L case allos gay partners as *family members for rent control

b. Property :ub1ect to Electi#e :harei. ?etermined by statute$ interpreted by 1udicial decisions

ii. "istorically only loo/ed at probate estates and not at ill substitutesiii. :tates #ary

20


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. :ome not allo at all 8K!92. :tatutes allo election

a. Probate only b. Judicial interpretation

i. 5oo/ to intent 8sub1ecti#e or ob1ecti#e9ii. raud on marital rights

iii. Illusory transfer c. E4pansi#e statutesd. Pre6''0 ;P@e. ''0 ;P@ 8best for sur#i#ing spouse9

i#. Derin #.?onaghy – " put all assets in trust for daughter$ court held not part of *estate+ hich only probate estate so trust not included hen ta/ing election

#. :ulli#an #.


22/30

. Trust set up as irre#ocable$ lea#ing all to /ids and none to spouse – if irre#ocable$ thennot testamentary and cant be touched,

2. T had retained poer to appoint remainder$ in effect a poer to ma/e testamentarytransfers and therefore it could be touched

a. ;P@ 6 ormally ould not be included but that T had use of income for life4. Keneral Poer of !ppointment – means at any time can appoint poer to self$ 81ust li/e oning

or to anyone 8#ery #aluable right9. 5ifetime – can gi#e to self hene#er 2. Testamentary – ta/e income and then gi#e it all to others hen die, cant appoint self

4i. :pecial Poer of !ppointment – limited$ cant appoint to special group of people Soften 6 self$estate or creditors

4ii. Qai#er – pre and post nuptial agreement. In re Estate of Karbade – p (

a. "&Q signed pre nuptial agreement ai#ing rights to electi#e share b. Q claims fraud$ duressF but she signed$ read it o#er$ could#e gotten layer

i. Treated same as a contract$ burden on her to pro#e fraudF2. In re Krieff – burden shifted to T to sho CT fraud$ duress 3 pre6nup b3c fact6based$

particulari7ed ine-uality establisheda. Pre6nup in#alid b3c " got Q layerF

%. ;P@ – right to elect can be ai#ed before or after marriage by ritten contractF

4iii. :pouse Cmitted from Qill. :ome states$ marriage re#o/es pre#ious ill, spouse ta/es under intestacy2. :ome states$ marriage not effect ill, spouse can ta/e electi#e share%. Estate of :hannon – p %0 – Pretermitted :pouse

a. T left all to daughter$ disinheriting e#eryone else, 2 years later got marriedFne#er made ne ill

i. ?isinherit clause CT enough to rebut presumption that T did CT inten

to disinherit spouseii. :pouse could ta/e intestacy share$ b3c pretermitted 8not in ill from befo

marriage9 if only omitted 8not in ill made after marriage9 ould ta/eelecti#e share

. Cmitted :pouse is intestate share b. "yer #. laig – ife as/ed layer to ma/e clear in ill CT lea#ing to "$ but to

daughters$ right before getting marriedF layer messed up and " got to ta/eintestate share 8pretermitted9

4i#. @hildren Cmitted from Qill. o las to protect children – but courts fle4ible to try and protect hen no sur#i#ing

spouse 8e4cept 5!92. any states protect pretermitted children 8ill made before child born9

a. To protect from unintentional disinheritance%. :ome states protect children ali#e hen ill e4ecuted and children after H pretermission

a. ust sho intent to omit to get around statutei. ost say determined by = corners of ill

ii. :ome allo for e4trinsic e#idence

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=. !7cunce #. Estate of !7cunce – T made ill that pretermitted =th child – later$ after =thchild born$ made codicil that republished ill, codicil not mention =th child$ thus =thchild as no longer pretermitted and CT protected under state la

. Espinosa #. :par/er – T ill not mention future daughterFlater$ hen made codicil$ nomention daughter 8after born9, layer didnt tell T of conse-uences of signing codicil8lea#ing child out no9 – only can sue layer if pri#ity or intended beneficiary – sincedaughter not mentioned$ not intended %d party beneficiary 8no e4trinsic alloed to pro#that 9

a. c!bee #. Edards – T anted to lea#e all to daughter e#en after marrying$ butlayer not correct – malpractice b3c daughter named still in ill$ so intended %d party beneficiary

M. In Estate of Peterson – T said not ha#e children – need more affirmati#e indication thenthat to sho intentional disinheritance of children – must sho remembered 3 /ne had/ids and then anted to disinherit – court protecting /ids

). Cne pretty much needs to name the person to be disinherited, if client not ant to$ draftcreati#e language but put in riting to client that it might not be successful

(. In re Estate of 5aura –a. T specifically e4cluded 2 sons from ill – then had issues

b. Issue of specifically disinherited /ids are effecti#ely disinherited as ell

VIII. Trusts> @reation$ Types & @haracteristics

a. :plitting of title – bifurcation of title into legal and e-uitable titlei. "istory – lea#e to ! for the use of ransicans – :tatute of ;ses – % – e4ecutes the legal title

and transfers to the heirs of beneficiaries – merges to fee simple absolute. ?idnt apply if trustee had any acti#e duties – b3c trustee did nothing 8not anymore9

b. Playersi. :ettlor 3 Trustor 3 Krantor – creates the trust 8T if testamentary9

ii. Trustee 3 iduciary – ons legal title 3 interest in property. anager of trust – can be indi#idual or corporation$ or combination2. If trust fails to name trustee$ ont fail$ court ill appoint 8but if inter #i#os trust$ then

need trustee to transfer to to create it9%. ?uties>

a. :eparate the property – trust funds from trustees funds b. Deep accurate accounts of fundsc. In#est property prudentlyd. @ant delegate trust poers 8or poer to in#est9

i. @an hire financial ad#isor and can put in mutual funde. !dminister solely for the beneficiaries

i.


24/30

. :ettlor createsa. Inter Vi#os Trust – creates during life

i. ?eed of Trust 3 on6declaration inter #i#os trust – must be a transfer of tdeed or of property to the trustee

ii. ?eclaration of Trust – 1ust name self as trustee$ not need transfer b3c fromone to self

iii. @an be re#ocable 8used to a#oid probate9 or irre#ocable 8ta4 planning9 b. Testamentary Trust – in ill and is created at death

i. !lays irre#ocable trust2. :ettlor can be a trustee$ and can be one of beneficiaries 8cant be both and sole

beneficiary b3c then title ne#er split9ii. andatory #. ?iscretionary

. andatory Trust – trustee must distribute all income and principle2. ?iscretionary – trustee has discretion o#er payment of the income or principal or both

iii. @ontract rules go#ern trustsi#. @ant ha#e oral trust for real property – statute of frauds – if a mi4$ usually :C applies#. Bule !gainst Perpetuities applies to Trusts – many states passed statutes saying not apply or no

if says not in trust agreement

#i. Trust can ha#e donee 8settlor9 as the life beneficiary – better then a life estate 8easier to admin9

d. Trusts and Estate Planningi. Trust property doesnt go through probate

ii. Ta4 benefitsiii. Property management

e. Revocable Trusts

i. ost common ay to a#oid probate – creator retains poer to re#o/e$ alter or amend the trust,

and sometimes right to trust income during lifeii. !ll states recogni7e so long as transfer of property3title to trustee$ and settlor reser#es right to

re#o/e$ etc. 8or reser#es right to poer of appointment9iii. ost fle4ible ill substitute b3c donor can draft allFi#. :o long as true intent – to create interests in some category of benefits during lifetime – ill be

recogni7ed as non6testamentary#. ?oes not re-uire testamentary formalities

#i. ar/as #. Qilliams –. T as intestate$ but had numerous trusts – bought stoc/ as *trustee for Q+ estate argues

that b3c T retained income during life$ right to re#o/e$ change beneficiary F that reallytestamentary and Q had no interest during Ts life

a. @ourt> :till a #alid trust – so long as true intention to pass on interest to beneficiary 8it can be contingent upon a certain state of facts e4isting at time ofTs death9 – T no longer oned the property absolutely – had fiduciary duty astrustee 8e#en if Qs interest not really meaningful9

i. Bemaining beneficiary still ser#es function, can sue after settlors death tuphold fiduciary duty

b. ?octrine of erger not apply here – if one party ons all interests 8legal ande-uity9 then no trust e4ists – not in this case b3c T not on all interests absolutel

2=


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2.


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ii. @an use act of independent significance – creating the inter #i#os trust that$ so long as some property as transferred into it before Ts death

b. Problems caused the passing of>=. ;niform Testamentary !dditions to Trusts !ct – statutory authority allos pour o#er

ills into e#en unfunded trusts 8nothing in them during lifeF9a. Trust can be e4ecuted before$ after or concurrently 3 ill 8no more problem 3

incorporation if ant to amend or change after ill e4ecuted9 b. ;P@ adopted as O26–

i. Qill may #alidly de#ise property to the trustee of a trust established Fii. ;nless the Ts ill pro#ides otherise$ property deli#ered to a trust

described in subsection 9 is not held under a testamentary trust of the T$ but becomes part of the trust to hich it as de#ised 8inter #i#os9

iii. Be#ocation or termination of the trust before death causes the de#ise tolapse

. @lymer #. ayo – p%)a. T and " married for long time$ then got di#orce, T had set up to trusts$ Trust !

for marital deductions$ Trust < for "s benefit for life$ 3 residual to his niecesand nephes.

i. Trusts ere not funded$ but from pour o#er ill – under state la thats oand trusts are #alid$ e#en though no money in during lifetime

ii. :tatute – di#orce automatically re#o/es disposition to former spouse inill6 ! applied it to re#o/e any dispositions in trusts

iii. Cb1ecti#e of Trust ! impossible – impossibility by la 8not married9. Trust ! terminated$ so all assets ent the Trust <

i#. Trust < – loo/ed at e4trinsic e#idence to determine T intended to still gi#to nieces and nephes6

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27/30

i. Be-uirements>. Intent to create a trust – no particular ords needed$ 1ust intent to create a trust

relationship2. ot need to be ritten unless for real property

%. Jimene7 #. 5ee – p M(a. ?aughter suing father b3c he held bonds to be used for her education$ and used o

many things$ – in#ested in stoc/ i. ather found to be trustee b3c bonds gi#en to him to use for her – created

the relationship e#en though nothing ritten 8only need for real propertyii. ather not uphold duties of trustee /ept funds together$ didnt account fo

themiii. Tried to argue ;niform Kift to inors !ct b3c then not need to account

and :C5 ran outF court not li/e$ but found trust$ and :C5 not run till asfor accounting of funds

. @reating informally$ but intent to create present – e#en thoughfather not intend to ta/e fiduciary duty$ not matter his intent

=. "eber ;ni#ersity !ssoc. #. ye – Jeish library$ anted to gi#e boo/sFcharitiesdispute ho gets boo/s

a. Prepared and said gi#ing$ in present tense$ and then said oned by the ;ni#. b. Tried to turn it into a trust$ 3 donor as a trustee 8since boo/s ne#er ere

con#eyed$ by possession$ to the ;ni#.9c. @ourt not do – need to ha#e some formality$ but donor ne#er put any of the

responsibilities on self as trustee – didnt intend to be trustee$ and need intent –intended to be a donor

i. any courts probably ould say as trust to carry out intentii. @ourt ont turn an imperfect gift b3c of lac/ of deli#ery into a trust

iii. 5ater ;ni#. got them by saying constructi#e deli#ery 3 memo

ii. Trusts are irre#ocable trusts unless e4pressly say reser#e right to re#o/e

iii. Trust Property – any interest in property that can be transferred. !ny interest – contingent remainder$ life insurance policy$ royalties$ leasehold interests2. ;nthan/ #. Bippstein – p(

a. T said in letter ould pay G200 a month for her life – not a ill$ but a lettershoing plans for future 8to tell someoneF not a codicil9

b. ot a #oluntary trust created – need clear intention to set aside property as trustcorpus

c. ot inter #i#os b3c no intent$ no deli#ery and futuristic language

%. :pecific property$ intended to be trust corpus=. ?ebt H recipient of funds is entitled to use them 3 on monies, trust must be separatea. If go ban/rupt$ creditors can get debt money and not trust money 8depending on

type of trust9. If trust property not all needed3used for the purpose of the trust$ then re#erts bac/ by a

Besulting Trust to the e4ecutor of the estatea. Besulting Trust –

i. E4press trust fails or ma/es an incomplete disposition

2)


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ii. Be#ersionary interest. Property once in a trust 8but trust ineffecti#e or money left o#er9

re#erts bac/ 2. Cral trusts for real property ould be in#alidFineffecti#e so

re#erts b. @onstructi#e Trust

i. ore fle4ible than resulting trustii. ! remedy in e-uity to pre#ent un1ust enrichment

iii. Places property here it should goi#. ! legal fiction#. ahoney e.g.

M.


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%. :pray Trustsa. Trustee pays out income and3or principal to one or more of multiple beneficiarie

in her discretioni. If one beneficiary ere rich$ could not gi#e anything – or all to poor one

=. arsman #. asca – p M(i. T left discretionary trust for support of " – to li#e as needs$ and trustee

can go into principle if necessary – ne#er made that clear to "ii. " not able to support self$ had to sell house 8hich ould#e left to 2d

ife if not sell9iii. Trustee had a duty of in-uiry to "s needs – should#e chec/ed financial

situation to see if needed some funds from the principle to help li#e up toneeds 8/eep house9

. 5a has ascertainable standard of comfortable support andmaintenance$ so trustee not ha#e as much discretion as too/

i#. Problem 3 remedy$ b3c " already sold house – trustee should beresponsible but trust had E4culpatory @lause

#. ?amages to be measured by amount trust ould#e been if trustee did 1oright – if there isnt enough$ trustee not personally liable for rest b3c of

clause. E4culpatory @lause

a. Trust may ha#e to /eep trustee from being liable – courts usually upholdi. ;nless>

. raud or breach of fiduciary duty by putting them in2. *


30/30

=. :ome – for creditors ho pro#ide necessary support 8hospitals$ nursing homeF9. Ta4es e4emptM. ississippi – only state here you can enforce tort 1udgment against X ho is beneficia

to trust). e Lor/ – all trusts are spendthrift trusts 8safe from creditors9 E4cept any amount of t

income that is in e4cess of hat beneficiary needs to li#e is open to creditors of beneficiary

a.

trusts and estates - johnston - 2002_3

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