wills estates and trusts outline and case chart

Michael Mroczka Wills, Estates, and Trusts Outline

Chapter 1. IntroductionSection A. The Power to Transmit Property at Death: Justifications and Limitations1. The Right to Inherit and the Right to CoveyHodel v. Irving Whether the original version of the escheat

provision of the Indian Land Consolidation Act of 1983 effected a taking of appellees decedents’ property without just compensation.

Decedents have a right to control disposition of their property at death, and the original provision of the “escheat” provision of the Indian Consolidation Act of 1983 effected an unconstitutional taking of their property without just compensation.

Shaw Family Archives v. CMG Worldwide

Marilyn Monroe’s will—can govt. increase property rights that pass as part of decedent’s estate? Could MM devise a right to her name, likeness and persona?

MM did not have the testamentary capacity to devise property rights she did not own at the time of her death. Law of the domicile of the testator at his death applies to all questions of a will’s construction (majority rule). California law said you could but not retroactive. Then amended to make retroactive (notes).

3. The Problem of the Dead Hand To what extent should a person be able to use wealth to influence behavior after death? Restatement: “The donor’s intention is given effect to the maximum extent allowed by law.” “American law does not grant

courts any general authority to question the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate his or her property.

Shapira v. Union National Bank

Testator, conditioned his son’s, P’s, inheritance under his will upon P being married to, or marrying within seven years of T’s death, a Jewish girl with two Jewish parents. P filed suit alleging that such a condition was unconstitutional based upon the premise that the right to marry is protected by the 14th AMD.

The conditions contained in decedent’s will are reasonable restrictions. His unmistakable testamentary plan was for his possessions to be used to encourage the preservation of the Jewish faith. The condition did not pressure plaintiff into marriage by the reward of money because the seven year time limit is a reasonable grace period, which would give plaintiff ample time for reflection and fulfillment of the condition without constraint or oppression.

Restatement: a restraint to induce a person to marry within a religious faith is valid if, and only if, under the circumstances, the restraint does not unreasonably limit the transferee’s opportunity to marry. The restrained unreasonably limits the transferee’s opportunity to marry if a marriage permitted by the restraint is not likely to occur.

A will or trust provision is ordinarily invalid if it is intended or tends to encourage disruption of a family relationship. Thus, provisions encouraging separation or divorce have usually been held invalid, unless the dominant motive of the testator is to provide support in the event of separation or divorce.

Section B. Transfer of the Decedent’s Estate1. Probate and Nonprobate Property Probate—property that passes under the decedent’s will or by intestacy

o Distribution of probate assets under a will or to interstate successors 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.

Nonprobate—property passing under an instrument other than a will, which became effective before death. Most property is passed outside of probate

o Nonprobate Property Joint tenancy—both real and personal

Decedent’s interest vanishes at death—nothing passes to survivor at death, they just have it. Life insurance—paid to the beneficiary named in the K Contracts with payable on death provisions Interests in trust

Property held in a testamentary trust created under decedent’s will goes through probat Inter vivos (put in during decedent’s lifetime) does not.

2. Administration of Probate Estatesa. The Functions of Probate Probate is intended to: (1) provide evidence of transfer of title to the new owners (2) protects creditors by requiring the payment

of debts; and (3) it distributes the decedent’s property to those intended after the creditors are paid.b. Probate Terminology and History When a person dies and probate is necessary, the first step is the appointment of a personal representative to oversee the

winding up of the decedent’s affairso Inventory and collect the assets

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o Manage the assets during the administrationo Receive and pay the claims of creditors and tax collectorso Clear any titles to cars, real estate, or other assets ando Distribute the remaining assets to those entitled.

If there is a will, and it names a personal representative, this person is the executor If there is no will or no person named, the person appointed by the probate court is called the administrator. Most wills waive bond; But, if there is no will or bond is not waived in the will, the personal representative must post bond In England various courts dealt with these issues; in the U.S. there is one court in each county. There is complication because there are different words that refer to personal and real property. For example, a will disposed of

real property and a testament disposed or personal property. Thus, an instrument that disposed of both was both a will and testament.

A person dying testate devises real property to devisees and bequeaths personal property to legatees. Real property descends to heirs; Personal property is distributed to next-of-kin.

o Today, a single statute usually outlines the descent for both real and personal propertyc. A Summary of Probate Procedure(1) Opening Probate Administration should be sought in the jurisdiction in which the decedent was domiciled at the time of his death.

o If real property is located in another jurisdiction, an ancillary administration is required.(2) Formal versus Informal Probate There are formal and informal probate—in formal, notice is given to beneficiaries and heirs.(3) Barring Creditors of the Decedent Every state has a statute requiring creditors to file claims within a specified period of time; claims filed thereafter are barred.

These are known as non-claim statutes.o They either (1) bar claims within a short period after probate begins (2-6 months) or (2) whether or not probate

proceedings are commenced, they bar claims not filed within a longer period after the decedent’s death, generally 1-5 years (1 year under the UPC).

The Supreme Court has held that known or reasonably ascertainable creditors must be give actual notice before they are barred by a short-term statute running from the commencement of probate proceedings.

o 1yr SOL is believed to be constitutional even w/o notice.(4) Closing the Estate Creditors must be paid, titles must be cleared. Taxes must be paid and tax returns audited and accepted by tax authorities. Real

estate or sole proprietorship may have to be sold. Judicial approval of the personal reps action is required to relieve the rep from liability, unless some SOL runs upon a cause of

action against the rep. The rep is not discharged from fid. Resp. until the court grants discharge.d. The Cost of Probate Why is probate bad? Court delays, court costs, it’s a public record (both good or bad) Why is it good to have a will? Provide for alternative takers in case the state laws are not what the individual wants, name

executor and successor executor, name guardian for the children (this is usually the biggest deal for many people).e. Is Probate Necessary? With the rising popularity of Nonprobate modes of transfer, the ready availability of summary or affidavit administration for

small estates, and special provisions for transfer of automobiles and other items with formal title registration, increasingly probate is necessary only for very large estates to clear title to real property.

Section D. Professional Responsibility1. Duties to Intended BeneficiariesSimpson v. Calivas Whether an attorney who drafts a testator’s will owes a duty of reasonable care to intended

beneficiaries?-A drafting attorney owes a duty of care to an intended beneficiary, notwithstanding lack of privity, due to the foreseeability of injury to the intended beneficiary. After the testator's death, the failure of his testamentary scheme works only to deprive his intended beneficiaries of the intended bequests. If a testator contracts with an attorney to draft a will and has identified those to whom he wishes his estate to pass, the identified beneficiaries may enforce the contract as third-party beneficiaries.-Where the terms of the will are ambiguous, extrinsic evidence of the testator's intent may be admitted to probate proceedings to the extent that it does not contradict the express terms of the will. While both the probate court and the superior court are competent to consider the same evidence on the issue of T's intent, that is not dispositive of an identity of issues. The probate court's role is to determine the testator's intent expressed in the language of the will. Direct declarations of the testator's intent are generally inadmissible in probate proceedings. A finding of actual intent is not necessary (or essential) to that judgment. Even an explicit finding of actual intent by a probate court cannot be the basis of collateral estoppel. Collateral estoppel is only applicable if the finding in the first proceeding was essential to the judgment of that court.

2. Conflicts of Interest

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A. v. B. Law firm, represented both husband, H, respondent, and wife, W. Both executed mutual wills transfer all the property to the survivor with the reasonable expectation that each would provide for their children. Meanwhile, the firm mistakenly took on another client, a woman who sued H for paternity. The existence of the additional child was vital to H’s and W’s estate plan. The firm withdrew from representation in the paternity suit and ordered H to tell W of his other child or the firm would. H sued firm to prevent disclosure.

A firm that represents a husband and wife may only disclose to the wife the fact that the husband had fathered another child but may not disclose the identity of the other woman or the child. The Court will allow the firm to tell the wife that her husband has a child by another woman because it is crucial to her needs in her won estate planning. However it must protect the confidentiality of its client, the other woman, because it also owes her a duty because they had formerly represented her.

Chapter 2. Intestacy: An Estate Plan by DefaultSection A. The Basic Scheme1. Introduction Probate property of a person who dies w/o a will is governed by the state’s statute of descent and distribution. If a will disposes of only part of the probate estate, then the result is a partial intestacy.

UPC Intestacy Statutes UPC §2-101: Intestate Estate

o (a) Any part of estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed, except as modified by the will.

o (b) Decedent may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession…Passes as if that individual or class had disclaimed his intestate share.

UPC §2-102: Share of Spouseo Spouse inherits whole estate if no descendant or parent survives the decedent OR all of the decedent’s

descendants are also descendants of the surviving spouse. Outlines shares if there are some other descendants. UPC §2-103: Share of Heirs Other Than Surviving Spouse

o Any part of the estate that does not pass to the surviving spouse, descends in this order. Children – grandchildren – surviving parent(s) – descendants of one’s parents

UPC §2-105: No Takero If there is no taker under these provisions, the estate passes to the state.

Meaning of Heirs and the Transfer of an Expectancy Under law, a living person does not have heirs. They are called heirs apparent. This is so because they have no interest at

all—they have an expectancy, but that can be altered by will or deed. Because it is not an interest, an expectancy may not be transferred. However, under equity, such an interest may be granted by

the court where it is just under the circumstances.2. Share of Surviving Spouses In designing an intestacy statute, the primary policy is to carry out the probable intent of the average intestate decedent. Studies show that when there are no children from a prior marriage, most persons want everything to go to the surviving spouse,

thus excluding parent and siblings—and children. Under the current intestacy laws in most states, the surviving spouse usually receives at least one-half share of the decedent’s

estate. If there is no descendant, nearly half of the states provide, as does the UPC, that the spouse share with the decedents parents, if

any. Simultaneous Death: A person succeeds to the property of a decedent only if the person survives the decedent for an instant of

time. It is presumed that the beneficiary died first and thus, neither inherits from the other. If two joint- tenants die together, each gets

their half to transmit. Same applies to property held in tenancy by the entirety or community property.Janus v. Tarasewicz This declaratory judgment action arose out of

the deaths of a husband and wife who died after ingesting Tylenol capsules laced with cyanide. H was pronounced dead shortly after he was admitted to the hospital. However, W was placed on life support systems for almost two days before being pronounced dead. Claiming that there was not sufficient evidence that W survived H, P brought this action for the proceeds of H’s life insurance policy, which named W as the primary beneficiary

In Illinois, if the title to property depends on the priority of death and there’s no sufficient evidence that the persons have died otherwise than simultaneously and there are no other provisions in testamentary or other governing instruments for distribution of the property, the property of each person shall be disposed of as if he had survived. It was not necessary to determine by how long Theresa survived Stanley. After viewing the record in its entirety, the trial court’s finding of sufficient evidence of Theresa’s survivorship was not against

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and P as the contingent beneficiary. the manifest weight of the evidence.The 120-hour Rule—UPC §§ 2-104 and 2-702 provide that an heir or devisee or life insurance beneficiary who fails to survive by 120 hours (5 days) is deemed to have predeceased the decedent. The USDA was amended to conform. The rule also addresses contemporaneous deaths even if they do not arise from a common disaster.3. Shares of Descendants In the U.S., after the surviving spouse takes their share, the children and issue of deceased children of the decedent take the

remainder of the property to the exclusion of everyone else. When one of several children has died before the decedent, leaving descendants, all states provide that the child’s descendants represent the dead child and divide the child’s share among themselves.

There are different views about what taking by representation means. The fundamental issue is whether the division into shares should begin at the generational level immediately below the decedent or at the closest generational level with a descendant of the decedent alive. There are 3 basic systems with a twist in some states that might be considered a 4th system.

English per stirpes : 1/3 of States follow this.o (strict per stirpes “by the stocks”): divide property into as many shares as there are living children and deceased

children who have descendants living. Then divide shares at first generation level after decedent. Represents each line of descendants equally.

Modern Per Stirpes Nearly 1/2 of Stateso (per capita with representation) look first to see whether any children survived the decedent; if so, distribution is

identical to EPS; where no children survive D, estate is divided equally at the first generation in which there are living takers. Come down until you find someone alive; then divide according to people who are alive OR have died but left descendants.

Treats equally each line beginning at the closest living generation. Per capita at each generation— (1990 UPC) About 12 states

o initial division of shares is made at level where one or more descendant is alive, but shares of the deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level. Start out like Modern, find someone then divide according to people who are alive or who have left descendants

Treats equally each taker at each generation with the other takers at that generation.

Negative disinheritance—an express statement in a will that disinheritso An old American rule was that not only must a person be disinherited, the remainder of their entire estate must be

otherwise disposed of.o UPC §2-101(b) changes this and authorizes a negative will. The barred heir is treated as if he disclaimed.

4. Shares of Ancestors and Collaterals All persons who are related by blood to the decedent but who are not descendants or ancestors are called collateral kindred (see

p.93). If there are no first-line collaterals, the states differ on who is next in the line of succession; two basic schemes are used:1. Parentelic system : the intestate estate passes to grandparents and their descendants, and if none to great-grandparents

and their descendants, etc.2. Degree-of-Relationship system: the intestate estate passes to the closest of kin, counting degrees of kinship (count

the steps on the table of consanguinity p.93)*If the intestate leaves no survivors entitled to take under the intestacy statute, the intestate’s property escheats to the state

When the intestate decedent is survived by a descendant, the decedent’s ancestors and collaterals do not take. When there is no descendant, after deducting the spouse’s share, in nearly half the states the rest of the intestate’s property is usually distributed to the decedent’s parents, as under the UPC.

There are numerous variations and mixtures of the parentelic and degree-of-relationship systmes in force in various states. MA for example, has long followed a degree-of-relationship system subject to a parentelic preference to break a tie between kin of equal degree.

“Laughing Heirs”— Those that are so distantly related that they can laugh all the way to the bank.o Rules of succession have been revised to abolish the laughing heir.o Roughly 1/2 of the states have done so, typically by drawing the line at grandparents an their descendants. In these

jurisdictions, there is no inheritance by relatives traced through great-grandparents and other more remote ancestors.o A few states and the UPC have created a new class of heirs consisting of stepchildren, who take as a last resort if there

are no surviving grand-parents or descendants of grandparents or more closely related kin. “Half-Bloods”—In a large majority of states, and under the UPC, a relative of the half-blood are treated the same as a relative of

the whole-blood. In a few states, including FL and TX, a half-blood is given a 1/2 share. In a few other states, a half-blood takes only when there are no whole-blood relatives of the same degree. In OK, half-bloods are excluded when there are whole-blood kindred in the same degree and the inheritance came to the decedent by an ancestor and the half-blood is not a descendant of the ancestor.

Section B. Transfers to Children

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1. Meaning of Childrena. Adopted ChildrenHall v. Vallandingham Four children appeal from a judgment wherein

it was determined they were not entitled to inherit from their natural uncle, by taking the share their deceased father would have received intestate, due to the fact they were adopted by the man their mother married after their father’s death.

The court held that because Est. & Trusts Art. Section:1-207(a) eliminates the adopted child’s right to inherit from the natural parent, it also abrogated the right to inherit through the natural parent by way of representation. Since an adopted child has no right to inherit from the estate of a natural parent who dies intestate, it follows that an adopted child may not inherit through the natural parent by way of representation.

Adult adoption—The overwhelming majority of inheritance statutes draw no distinction between the adoption of a minor and the adoption of an adult. Occasionally the adoption of an adult may be useful in preventing a will contest. The only persons who have standing to challenge the validity of a will are those who would take if the will were denied probate. Thus, if an adult is adopted, the other heirs cannot contest the will on the basis that they would have inherited if the decedent had died intestate.

o In a majority of states, an adult person, married or unmarried may adopt any other person, minor or adult, but the adoption of a spouse or lover may not be allowed. In NY, the adoption of an adult lover is not possible.

Because adoption was unknown to the common law, children and issue necessarily connote a blood relationship. Thus, when adoption laws were enacted courts were faced not only with the question of an adopted child’s intestacy rights, but also whether an adopted child took under a will of a person who was not their adoptive parent (i.e. relatives etc.).

o These cases gave rise to the stranger-to-the-adoption rule—that an adopted child is presumptively barred, whatever generic word (child, issue etc.) is used, except when the decedent is the adoptive parent (i.e. they must be specific—if “Kate’s children” is used, adoptive child is not included)

Courts have begun to carve exception into the stranger-to-the-adoption rule.o An adopted child might be permitted to take if adopted before, but not after, T’s death.o In most states today, a minor adopted by A is presumptively included n a gift by T to the children, issue, descendants,

or heirs of A. The presumption yields to a contrary expression of intent by the donor.Minary v. Citizens Fidelity Bank and Trust Co.

Decedent’s son adopted his adult wife in the hopes of bringing his wife under the provisions of decedent’s trust in order for his wife to share in the proceeds from the trust.Even though the statute provides that the adoption of an adult shall be given the same legal effect as the adoption of a child, the court views this practice to be an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs. Adopting an adult for the purpose of bringing that person within the provisions of a pre-existing testamentary instrument, when that person was clearly not intended to be covered by the instrument, should not be permitted.

Adult adoption and class gifts—UPC 2-705 excludes a person adopted after reaching the age of 18 from a class gift to the adoptive parent’s children, issue, descendants, or heirs by someone other than the adoptive parent unless the adoptive parent was the adoptee’s stepparent or foster parent, or the adoptive parent functioned as a parent of the adoptee before the adoptee turned 18.

O’Neal v. Wilkes Although he never statutorily adopted appellant, Cook raised her and provided for her and she resided with him until her marriage. Appellant never took Cook’s name but Cook referred to her as his daughter and referred to her children as his grandchildren. Cook died intestate in. Administrator of the estate refused to recognize appellant as having an interest in the estate. Appellant filed a petition in equity, asking the court to declare a virtual adoption that would thereby entitle her to the share in the estate she would have received had she been statutorily adopted by Cook.

Page had no authority to enter in to the adoption contract with Cook, and therefore the contract was invalid. The obligation to care and provide for appellant undertaken by Campbell, and later Page, was not a legal obligation, but rather a familial obligation resulting in a custodial relationship that is characterized as something less than that of a legal custodian. This relationship carried no authority to contract for appellant’s adoption. Georgia Code defines “legal custodian” as a person to whom legal custody has been given by court order, and who has the right to physical custody of the child, and has the right to determine the nature of the care and treatment of the child, as well as to provide that care.

Equitable adoption doctrine—recognized in a majority of states—An oral agreement to adopt A, between H and W and A’s genetic parents, is inferred if H and W take baby A into their home and raise A as their child. As against H and W, equity treats A as if the contract to adopt had been performed by H and W. They are estopped to deny a formal adoption took place.

o Equitable adoption permits an equitably adopted child to inherit from the foster parents. On the other hand, the foster parents (and their relatives) cannot inherit from the child.

o One court concluded that the effect of equitable adoption should be limited to inheritance from the parent who is estopped.

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o Many courts, though not all, refuse to apply equitable adoption to testate estates.b. Posthumous Children The typical posthumous child case involves a child who is conceived before, but born after, her father’s death. Where for

purposes of inheritance or determining property rights, it is to a child’s advantage to be treated as being from the time of conception rather than form the time of birth, the child will be so treated if born alive.

Courts have established a rebuttable presumption that the normal period of gestation is 280 days (10 lunar months). If the child claims that the conception dated more than 280 days before birth, the burden of proof is usually upon the child.

c. Nonmarital Children All states have alleviated unsympathetic treatment of nonmarital children and now permit inheritance from the mother. But rules

respecting inheritance from the father vary. Most states permit paternity to be established by evidence of subsequent marriage of the parents, by acknowledgement by the father, by adjudication during the life of the father, or by clear and convincing proof after his death.

As DNA analysis has made paternity testing both fairer and more accurate, the clear trend is toward allowing it, even if exhumation of the body is required.

d. Reproductive Technology and News Forms of Parentage A posthumous child is treated as in being from the time of conception rather than from the time of birth if it is to the child’s

advantage to do so and the child is born alive. The posthumously conceived child differs from the posthumous child in that the former is both born and conceived after the

death of on or both of the child’s genetic parents. Hence a posthumously conceived child is, by definition, a nonmarital child even though the child’s parents might have been married prior to the child’s conception.

Woodward v. Commissioner of Social Security

Warren Woodward After learning that he his sickness may later cause him to be sterile decided to put his semen in a holding bank so his wife could be artificially inseminated. After he died three years later, appellant, his wife, became pregnant and bore children as a result of the insemination. The wife filed an application to receive her husband’s social security benefits on behalf of her children.-To determine whether posthumously conceived genetic children may enjoy inheritance rights under an intestacy statue, the court balances (1) the best interests of children, (2) the State’s interest in the orderly administration of estates, and (3) the reproductive rights of the genetic parent. Under intestacy law, a non-marital child must obtain a judicial determination of paternity as a prerequisite to succeeding to a portion of the father’s estate if there is no acknowledgement of paternity by the father.-Posthumous genetic children may enjoy the inheritance rights of “issue” under intestacy law in limited circumstances where, (1) the surviving parent or the child’s other legal representative demonstrates a genetic relationship between the child and the decedent, (2) the survivor or representative must establish that the decedent affirmatively consented to posthumous conception and to the support of any resulting child, (3) the proper time limitations are met, and (4) notice is given to all parties.

Social security and inheritance law—under federal law, a child of a deceased father is eligible for Social security survivor’s benefits only if the child would inherit from the father under state law. Nearly all litigated cases over the inheritance rights of a posthumously conceived child involve eligibility for Social Security benefits, and cases have reached different results.

Legislation and reform—different statutes say different things with the Rst. Being most relaxed.In re Martin B. James predeceased his father, Grantor. When

James discovered he was sick, he deposited semen to be held at the directions of his wife upon his death. 3 and 5 years later, wife had 2 children. Whether the terms issue and descendants include children conceived by means of in vitro fertilization of the Grantor’s son who had died several years prior to such conception?

Where a governing instrument is silent, children born of this new biotechnology with the consent of their parent are entitled to the same rights for all purposes as those of a natural child. For purposes of determining the beneficiaries of these trusts, the controlling factor is the grantor’s intent as gleaned from a reading of the trust agreements. Such instruments provide that upon the death of the grantor’s wife, the trust fund would benefit his sons and their families equally. In view of such overall dispositive scheme, a sympathetic reading of these instruments warrants the conclusion that the grantor intended all members of his bloodline to receive their share.

Surrogate children—p. 130 Assisted Reproduction and Same-Sex Couples—p. 1322. Advancements If a child wishes to share in the intestate distribution of a deceased parent’s estate, the child must permit the administrator to

include in the determination of shares the value of any property that the decedent, while living, gave the child by way of advancement.

When a parent makes an advancement to a child and the child predeceases the parent, the amount of the advancement is

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deducted from the shares of the child’s descendants. (not so for UPC) Largely because of problems of proof of the donor’s intent, many states have reversed the common law presumption of

advancement. In these states, a lifetime gift is presumed NOT to be an advancement unless it is shown to have been intended as such.

UPC 2-109—3. Guardianship and Conservatorship of Minorsa. Guardian of the Person When clients with young children plan for death, you should advise them to provide for the possibility that their children might

be orphaned. A guardian of the person has the responsibility for the minor child’s custody and care. As long as one parent of the child is

living and competent, that parent is the natural guardian of the child’s person. Thus, if only one of two persons dies, there is no need to appoint a guardian of the person.

If both parents die while a child is a minor and their wills do not designate a guardian, the court will appoint a guardian of the person from among the nearest relatives.

b. Property Management Options(1) Guardianship of the Property Guardianship of the Property—Guardianship for a minor’s property is somewhat like going through a continuous probate until

the child reaches the age of majority. It should be avoided. Basically the guardian has to continuously report to the court and ask the court for permission when making any types of dispositions of the property included in the estate, even if for the child’s benefit.

(2) Conservatorship Conservatorship— The guardian of the property has been renamed the conservator and given “title as trustee” to the protected

person’s property, as well as investment power similar to those of trustees. This established a fiduciary duty without putting excessive constraints on the guardian. This system is much more flexible, however, the guardian/ conservator may have to go to court annually for an accounting. Conservatorship terminates when the minor reaches the age of majority or dies before then. UPC §5-431

(3) Custodianship Custodianship—A person who is given property to hold for the benefit of a minor. The custodian is a fiduciary. Even if there is

no will or trust or the will or trust does not expressly authorize payment to the child’s parents, many states have laws permitting a fiduciary to pay small sums to the custodial parent or to an account in the child’s name alone without requiring the appointment of a guardian or conservator, but not more than $5000 a year under UPC §5-104. A custodianship is not under the supervision of court, however, the beneficiary can still enforce fiduciary duties. Ideal for modest gifts to a minor, but when a large amount of property is involved, a trust is usually preferable.

(4) Trusts Trusts—See Chapters 8-14Section C. Bars to Succession1. HomicideIn re Estate of Mahoney Appellant was convicted of manslaughter for

the death of her husband, and appeals from a decree, wherein the probate court determined appellant was not entitled to a share of her deceased husband’s estate.

Legal title passes to the slayer but equity holds him to be a constructive trustee for the heirs or next of kin of the decedent. The principle that one shouldn’t be able to profit thru their wrong must not be extended to every case in which a killer acquires property from his victim as a result of the killing.

Does the statute apply to nonprobate transfers? UPC 2-803 bars the killer from succeeding to nonprobate as well as probate property.

If the killer is barred from taking, who takes? UPC 2-803 provides that the killer is treated as having disclaimed the property, and under the UPC disclaimer statute 2-116, the disclaimant is treated as predeceasing the victim.

If the killer is treated as predeceasing the victim, should the court follow the victim’s will that leaves crap to the killer’s heirs? Cases disagree about this.

Is a criminal conviction required? UPC 2-803(g) provides that a conviction for an intentional killing is enough (doesn’t have to be murder). Also, the in absence of a conviction, the court must determine under the preponderance of the evidence standard that the individual would be found guilty.

2. Disclaimer Sometimes an heir or devisee will decline to take the property, a refusal that is called a disclaimer. Under the common law, an intestate successor cannot prevent title from passing to him or her. BUT, if they refuse to accept, the

common law treated the situation as if the heir renounced and as if the title went to the next heir. If a person dies TESTATE, the devisee can refuse to accept the devise, thereby preventing title from passing to them. Any gift

requires acceptance. There used to be different tax consequences between the two—Today most states have enacted disclaimer legislation that

provides that the disclaimant is treated as having predeceased the decedent.

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Saving estate taxes: O dies intestate, survived by one sister- A. If A disclaims, she is treated as if she predeceased O and O’s estate will pass under intestacy statutes to A’s children. THUS, to pass the property without tax, A may chose to disclaim. Also, if child is taxed at a lower rate than A, child may want to take.

§2-1101 does not contain a time limit on when a disclaimer may be made. BUT, the IRS does impose a 9-month cap on what is classified as a “qualified disclaimer”.

Disclaimer can correct a drafter’s error saving the estate lots of money. Avoiding creditors: Most disclaimer statutes provide that a disclaimer relates back for all purposes to the date of the decedent’s

death. In the above example, if A disclaims, most cases have held that A’s ordinary creditors cannot reach her share in O’s estate because the disclaimer date is the date of death, and thus it was never A’s.

While in most States individual creditors cannot reach assets disclaimed by a debtor not already in bankruptcy, the IRS as a creditor is treated differently. \/ \/ \/ \/ Drye v. U.S \/ \/ \/ \/

Drye v. United States Decedent, died intestate, leaving her son, appellant, as the sole heir to her estate. Prior to decedent’s death, appellant had an unpaid tax bill, which caused the IRS to file tax liens against all of appellant’s “property and rights to property.” To prevent the IRS from taking his inheritance from decedent’s estate, appellant disclaimed his interest in the estate, which allowed the entire interest to pass to his daughter, who was next in line under the intestacy scheme. Daughter then set up a trust under which appellant was a beneficiary.

Where one has the power to channel an estate’s assets, it warrants the conclusion that they hold property or a property right that is subject to government’s liens. The disclaiming heir inevitably exercises dominion over the property, as they determine who will and will not receive the property. The control rein appellant held under state law rendered the inheritance “property” or “rights to property” belonging to him within the meaning of federal law, and thus is subject to the federal tax liens.

Chapter 3. Wills: Capacity and ContestsSection A. Mental Capacity1. The Test of Mental Capacity To be competent to make a will, the testator must be an adult (age 18 or older) and must be capable of knowing and

understanding in a general way, (1) the nature and extent of his or her property, (2) the natural objects of his or her bounty, and (3) the disposition that he or she is making of that property, and must also be capable of (4) relating these elements to one another and forming an orderly desire regarding disposition of property.

o The test is one of capability, not actual knowledge.In re Estate of Washburn The testatrix executed three wills. The first two

wills are similar with $1000 to certain individuals and the rest to the sister and niece. The last will was executed three weeks after the second will and gave $5000 to the niece and the residue to the caretaker. The probate court held that the testatrix lacked the testamentary capacity necessary to execute a will. The testatrix was found to have suffered from Alzheimer's disease at the time of the execution of the third will, resulting in her inability to recollect the property she wished to dispose of and understand its general nature.

A reasonable trier of fact could determine that the testatrix was incompetent to execute the will because the third will was changed three weeks after the second will and there were signs that the testatrix suffered from some degree of Alzheimer’s when the will was executed in 1992. *The majority approach is that the contestant has to show a lack of capacity and then it shifts to the beneficiary. New Hampshire took the minority approach and places of burden of proof on the proponent of the will to show capacity.

Wilson v. Lane The will is challenged that the testatrix lacked testamentary capacity. The drafting attorney testified in his opinion, that at the time the will was signed, the testatrix was mentally competent, and that she emphatically selected every beneficiary named in the will.A person is mentally capable to make a will if she has sufficient intellect to enable her to have a decided and rational desire as to the disposition of her property. The law does not withhold from the aged, the feeble, the weak-minded, the capricious,…the right to make a will, provided such person has a decided and rational desire as to the disposition of his property. All that is required to sustain a will is proof that the testator was capable of forming a certain rational desire with respect to the disposition of her assets. The challengers to the will claimed that Greer was eccentric and paranoid but this is not enough to prove lack of testamentary capacity. None of the evidence that Greer was possibly suffering from Alzheimer’s or that she was blind was enough to prove the lack of testamentary capacity.

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*Professional responsibility: if a lawyer believes that someone lacks testamentary capacity, they may not draft a will for that person, however, the lawyer can rely on their own assessment when making this determination. An attorney should try and build up a record to prove testamentary capacity at a later date.

*Ante-mortem probate: can have a will validated during your life so as to keep post-death contests from coming forth. *Capacity Thresholds: Need greatest mental capacity to enter into a contract, intermediate capacity to write a will and the

lowest threshold for mental capacity to enter into marriage. The fact that entering into marriage requires the lowest level of capacity presents a paradox since upon death, the surviving spouse will get a forced share.

2. Insane Delusion Some courts have held if there is any factual basis for the delusion, then it is not a delusion A person may have sufficient capacity to execute a will, but may be suffering from an insane delusion so as to cause a particular

provision—or the whole will—to fail. A delusion is a false conception of reality. There are two approaches to insane delusions:

o Majority approach: uses the rational person test to determine what constitutes an insane delusion. If a rational person in the testator’s situation could not have reached the same conclusion, the belief is an insane delusion. Pro-beneficiary.

o Minority approach: applies the “any factual basis to support” test to determine what constitutes an insane delusion. If there is any factual basis to support the testator’s belief, then it is not an insane delusion. Pro-testator.

In re Strittmater Decedent became a member of the New Jersey branch of the National Women’s Party and worked for them as a volunteer in the New York office from 1939 to 1941. During this period she spoke about leaving her estate to The Party and on October 31, 1944, she executed her last will, putting this intention into effect. A month later she died. Decedent’s will was denied admission to probate based on the ground that decedent was insane.

A person may have sufficient mental capacity generally to execute a will but may be suffering from an insane delusion so as to cause a particular provision in a will, or perhaps the entire will to fail for lack of testamentary capacity. Decedent’s disease seemed to have become well developed by 1936. She had been a member of the Women’s Party for eleven years at that time but the evidence doesn’t show that she had taken great interest in it. The court believed it was her paranoiac condition, especially her insane delusions about the male, which led her to leave her estate to the National Women’s Party.

It seems as though this case most likely would have been decided differently today given that society now recognizes a woman’s right to have avant-garde social view, much more so than in the late 1940’s. Certainly, the opinion would have been written very differently if decided today.

Breeden v. Stone Decedent committed suicide two days after killing a driver in a hit-and-run accident. Before he died, he wrote a handwritten (holographic) will leaving all of his money to Sydney Stone. He was drunk and high at the time of the accident, and continued the bender after the accident. Stone offered the will for probate and Breeden’s family contested the will on the grounds that there was a lack of mental capacity and that he was suffering from insane delusions. He believed there were plots against him and the house was bugged.Before a will can be invalidated because of a lack of testamentary capacity due to an insane delusion, the insane delusion must materially affect the disposition in the will. Based on the Cunningham and the insane delusion tests, the decedent was of sound mind because he could index the disposition of his property, identify the devisee, and the insane delusion did not materially affect the will’s disposition. Applying the Cunningham test for sound mind, Breeden was able to (1) identify the major categories of the property comprising his estate, (2) knew his home and rental addresses, and (3) was able to identify the devisee Stone by name and provide her current address. For the insane delusions test, the court considered that Breeden had not made provisions for his father and sister in his prior 1991 will. Even though he had insane delusions, the court found that the insane delusions were not related to the making of his will.

Cunningham Test—Mental capacity to make a will requires that: (1) the testator understands the nature of her act; (2) she knows the extent of her property; (3) she understands the proposed testamentary disposition; (4) she knows the natural objects of her bounty; and (5) the will represents her wishes.Insane Delusion Test—A person who was suffering from an insane delusion at the time he executed the will may lack testamentary capacity. Insane delusion is a persistent belief in that which has no existence in fact, and which is adhered to against all evidence. A party asserting that a testator was suffering from an insane delusion must meet the burden of showing that the testator suffered from such delusion. The insane delusion must materially affect the contested disposition in the will. In order to have testamentary capacity, a testator must have a sound mind. A sound mind includes the presence of the

Cunningham factors and the absence of insane delusions that materially affect the will.In re Honigman’s Will T after coming to believe his wife was having A will is invalid if the insane delusion cause or

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an affair left his wife only the minimum necessary to satisfy her statutorily forced share.

affected, or might have caused or affected, the disposition of the property. (1960 well before Breeden.)

*Dead Man’s Statutes: Only good law in a minority of states. Prohibit testimony by an interested party of a decedent’s oral statement in support of a claim against the decedent’s estate. The theory is that since the decedent cannot refute the testimony, the surviving part’s lips should be sealed too.

Section B. Undue Influence1. Introduction To be undue influence in the eyes of the law, there must be coercion. It is only when the will of the person who becomes a

testator is coerced into doing that which he or she does not desire to do, that it is undue influenceo The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or

violence, or a person in the last days or hours of life may have become so week and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything

Undue influence may occur where there is a confidential relationship between the parties or where there is no such relationship. Proof may be wholly inferential and circumstantial. The influence may be that of a beneficiary or that of a third party imputed to the beneficiary.

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 stricken and the remainder of the will allowed to stand, if the invalid portions of the will can be separated without defeating the testator’s intent or destroying the testamentary scheme. An inter vivos transfer that is the product of undue influence is likewise invalid.

Restatement (Third) of Property: Wills and Other Donative Transfers§8.3 Undue Influence, Duress. Or Fraud

(a) A donative transfer is invalid to the extent that it was procured by undue influence, duress, or fraud.(b) A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame

the donor’s free will and cause the donor to make a donative transfer that the donor would not otherwise have made. The alleged wrongdoer need not be present when the donative document was executed in order to exert undue influence. In the absence of direct evidence of undue influence, circumstantial evidence is sufficient to raise an inference of undue

influence if the contestant proves that (1) the donor was susceptible to undue influence, (2) the alleged wrongdoer had an opportunity to exert undue influence, (3) the alleged wrongdoer had a disposition to exert undue influence, and (4) there was a result appearing to be the effect of the undue influence.

Typically courts focus on a confidential relationship between the parties and whether there is an unnatural disposition.2. What Influence is Undue?Estate of Lakatosh Appellant, befriended decedent, who was then in her seventies and living alone. Appellant assisted

decedent around her house and drove her to various appointments. A few months after they met, appellant suggested that decedent give him power of attorney. Decedent executed POA as well as a new will that left all but $1,000 of her estate to appellant. Appellant’s second cousin drafted the will, and a tape recording of the execution ceremony evidenced that while decedent didn’t entirely lack competence, she had a “weakened intellect.”The three elements of the test for undue influence were easily met. First, the confidential relationship was established by decedent’s dependency on appellant as well as the power of attorney. Second, appellant received the bulk of the estate. Third, decedent’s intellect was weakened as evidenced by the fact she was an elderly woman unable to prevent the consumption of her assets by the appellant and she was living in filth with her bills unpaid. Once the burden of disproving undue influence shifts to the proponent of the will, it is incumbent upon the proponent to demonstrate the absence of undue influence by clear and convincing evidence.

When the proponent of a will proves that the formalities of execution have been followed, a contestant who claims there had been undue influence has the burden of proof. The burden proof proof may be shifted so as to require the proponent to disprove undue influence if the contestant proves by clear and convincing evidence: 1) that there was a confidential relationship, 2) that the person enjoying such relationship received the bulk of the estate, and 3) that the decedent’s intellect was weakened.

Presumptions, Burden Shifting and Undue Influence The proponent of a will has the burden of proving its validity, but this is easily done in most cases by showing due execution. The person contesting the will then has the burden of proving undue influence either directly or indirectly by proving facts that

would give rise to a presumption of undue influence. To trigger this presumption, the contestant must establish the existence of a confidential relationship between the influencer and

the testator, plus, in most jurisdictions, one or more additional suspicious circumstances.o Confidential Relationship—The term confidential relationship embraces three sometimes distinct and sometimes

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overlapping relationships—fiduciary, reliant, or dominant-subservient. A fiduciary relationship is one in which the confidential relationship arises from a settled category of

fiduciary obligation. (attorney, power of attorney, etc.) Whether a reliant relationship exists is a question of fact. The contestant must establish that there was a

relationship based on special trust and confidence. (financial advisor, doctor, etc.) Dominant-subservient is also a question of fact. The contestant must establish that the donor was

subservient to the alleged wrongdoer’s dominant influence. (hired caregiver, adult child over feeble parent)o Suspicious Circumstances—In addition to confidential relationship, to trigger a presumption of undue influence, the

contestant must usually show the existence of suspicious circumstances. May be satisfied by showing that the influencer procured the will, or that the person in the confidential relationship received the bulk of the estate and that the decedent had a weakened intellect (Lakatosh). Restatement provides a non exhaustive list:

The extent to which the donor was in a weakened condition, physically, mentally or both, and therefore susceptible to undue influence

The extent to which the alleged wrongdoer participated in the preparation or procurement of the will or will substitute.

Whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will or substitute

Whether the will or substitute was prepared in secrecy or in haste Whether the donor’s attitude toward others had changed by reason of his or her relationship with the alleged

wrongdoer Whether there is a decided discrepancy between a new and previous wills or substitutes of the donor Whether there was a continuity of purpose running through former wills or substitutes indicating a settled

intent in the disposition of her property, and Whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust,

or unfair, for example, whether the disposition abruptly and without apparent reason disinherited a faithful and deserving family member.

o Burden Shifting—If the presumption of undue influence is triggered, the burden shifts back to the proponent to rebut the presumption.

The rule for rebutting the presumption of undue influence arising from a confidential relationship only requires the grantee of a transaction to prove by clear, satisfactory, and convincing evidence that the grantee acted in good faith throughout the transaction and the grantor acted freely, intelligently, and voluntarily.

In re Will of Moses Decedent, became friends with appellant, Clarence Holland, an attorney, fifteen years her junior. After decedent’s third husband died, appellant became decedent’s lover as well as her attorney. This relationship continued for several years until decedent died. 3 years before she died, decedent made a will devising almost all of her property to appellant. The will was drafted by an attorney, who had no connection with appellant, and did not tell appellant about the will. Decedent’s closest relative was her older sister, who attacked the will on the ground of undue influence.

Where a confidential relationship between the testatrix and devisee creates suspicious circumstances, a presumption of undue influence arises. A fiduciary relationship, such as attorney-client, gives rise to a presumption of undue influence, where the fiduciary is a beneficiary under the will, and the testatrix has not received independent advice and counsel in making her will. It’s clear from the testimony that the attorney-draftsman did no more than write down, according to the forms of law, what decedent told him. There was no meaningful independent advice or counsel touching upon the area in question.

In re Kaufmann’s Will D executed a will before he died leaving substantially all of his property to Weiss. He also included a letter to his family stating his appreciation for having Weiss in his life, hoping that his family would be happy for him. At D’s death, his brother sought to have his will set aside on grounds of undue influence after suspecting that D had a homosexual relationship with Weiss. The trial court found that Weiss made false accusations against D’s brother and caused D to believe that his family was resentful of his drive for independence.A will is invalid where the evidence shows that the testator did not freely and voluntarily creates his or her will because another individual exerted undue influence over his mind. A will is invalid for reason of undue influence where the evidence shows that the beneficiary dominated the testator, the testator could be easily taken advantage of, and the testator relies exclusively on the beneficiary’s knowledge and judgment concerning the disposition of all material things in the testator’s life. Here the proponent of the will planted in the testator’s mind that his family was obstructing his goal of independence and made false accusations against the testator’s brother. The testator was inexperienced, and the proponent exerted undue influence over him when he disposed of almost his entire estate to the proponent. The Court found that evidence showing that the proponent kept Weiss away from his family and caused him to distrust them was enough to show that Weiss unduly influenced Kaufman.

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If Robert were a woman named Roberta, would the results have been the same?Lipper v. Weslow Ps are 3 grandchildren of Block by a deceased son; Ds are Block’s 2 surviving children. The will left

the estate to her two children and nothing to her grandchildren. Will was prepared by her son, one of the Ds. Will explained why she didn’t leave anything to grandchildren.The test of undue influence is whether such control was exercised over the mind of the testatrix as to overcome her free agency and free will and to substitute the will of another so as to cause the testatrix to do what she would not otherwise have done but for such control. Here the will and the circumstances may raise suspicion, but does not give proof of the vital facts of undue influence. All of the evidence reflected that decedent was of sound mind, strong will, and in excellent physical condition. Additionally, subsequent to the execution of the will decedent told three disinterested witnesses what she had done with her property in her will as well as the reason for it. A person of sound mind has the legal right to dispose of his property as he wishes, with the burden on those attacking the disposition to prove that it was the product of undue influence.

No Contest Clauses: Provides that a beneficiary who contests the will shall take nothing, or a token amount, in lieu of the provisions made for the beneficiary in the will.

o These clauses can discourage unmeritorious litigation, family quarrels, and reputational damage. BUT, this could inhibit someone from being a legitimate suit, or one that goes to prove forgery, fraud, or undue influence.

o A majority of courts enforce a no-contest clause unless there is probable cause for the contest. The probable cause rule is adopted by the UPC in §2-517 and 3-905.

o UPC §2-517 does not enforce a no-contest clause if there is probable cause to support the will contest. The rationale for this is that if there is probable cause to support a claim, then the no-contest clause should not be used to shield wrongful conduct. Florida does not enforce no-contest clauses at all.

o In a minority of jurisdictions, courts enforce no-contest clauses unless the contestant alleges forgery or subsequent revocation by will or codicil.

Undue Influence—Man y courts, concerned with the appearance of impropriety, hold that a presumption of undue influence arises when an attorney-drafter receives a legacy, except when the attorney is related to the testator.—Rebutted only by clear and convincing evidence.

Unethical Conduct—Rule 1.8(c) of the MRPC provides; A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client…

Fiduciary Appointments—(executor or trustee) The attorney may have a personal interest in the appointment, which usually entitles the fiduciary to fees. MRPC says lawyer should advise the client of the nature and extent of the lawyer’s financial interests and the availability of alternative candidates.

3. Planning for and Avoiding a Will Contest Realize the grounds for contest Notice warning signs Have strategies

o Letter to the lawyero Video discussiono Family meetingo Professional examinationo Extra precautions at the will executiono No contest clause—although not that powerfulo Inter vivos trusto Inter vivos giftso Have the donor write a check to potential contesters

Sections C. Fraud Fraud occurs where the testator is deceived by a misrepresentation and does that which the testator would not have done had the

misrepresentation not been made. It is usually said that the misrepresentation must be made with both the INTENT to deceive and the PURPOSE of influencing the testamentary disposition.

A provision in a will procured by fraud is invalid. The remaining portion of the will stands unless the fraud permeates the entire will or the portions invalidated by fraud are inseparable from the rest of the will.

If fraud occurs in the testamentary setting, it is usually either fraud in the inducement or fraud in the execution.o Fraud in the inducement—occurs when a misrepresentation causes the testator to execute or revoke a will, to refrain

from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor. Basically, intentional misrepresentation of facts to the testator. Concerns a fact that is important to the testator and may induce the testator to dispose of their property differently due to the misrepresentation. Heir induces O not to execute will with A in it, by promising O that H will give part to A. BUT, if at the time H intended to do so, but then later changed his mind, this is not fraud in the inducement

o Fraud in the execution— person intentionally misrepresents a document either as being or not being the testator’s will. O, who has bad eyesight, asks H to bring her the document so that she can sign it. H brings her something that is

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not her will, knowing that this is not the document that O had requested.Puckett v. Krida Whether a presumption of fraud and undue influence is raised where the testator is in a confidential

relationship with people who involuntarily isolate the testator and make misrepresentations on which the testator relied in making her will? D provided care for the testator. D persuaded the testator that her relatives were wasting her money and wanted to put her in a nursing home. Neither was true.A presumption of undue influence and fraud is raised where the testator is in a confidential relationship with individuals who make false statements on which the testator relies when creating his will. There is sufficient evidence here to support a finding of fraud and undue influence because the defendants, standing to benefit from the will, had exclusive access to the testator and control over her physical person. Furthermore, the defendants were in a confidential relationship with the testator because they were employed as nurses to provide the testator with around the clock care and one of them was her attorney-in-fact. These facts together with evidence showing the defendants told false statements which they were aware would cause the testator to exclude her family from the will.

Section D. Duress When undue influence becomes overtly coercive, it becomes duress. Duress is found if the wrongdoer threatened to or did perform a wrongful act that coerced the testator into making a disposition

the testator otherwise would not have made.Latham v. Father Divine Lyon left her estate to D, Father Divine, a

leader of a religious group. P, sought to have a constructive trust imposed on D’s gift on grounds that the D defrauded and unduly influenced Lyon. P claims that Lyon expressed a desire on several occasions to include them as beneficiaries in her will, but D killed her before the will could be executed.

When an heir or devisee under a will prevents the testator from making a will or deed in favor of another, by fraud, duress, or undue influence, such heir or devisee will be deemed a trustee over the gift in favor of the intended beneficiary. A beneficiary is liable for undue influence and fraud where he makes misrepresentations, uses force, and murders a testator to prevent him from signing a will that names another person as a beneficiary. In such a case, the beneficiary holds the property in constructive trust for the intended beneficiaries. Though the court will enforce the will, valid on its face, it will not allow an heir to benefit from such wrongful conduct.

Constructive Trust: A constructive trust is sometimes said to be a “fraud-rectifying” trust. But a constructive trust may be imposed where no fraud

is involved if the court things that unjust enrichment would result if the person retained the property. Once converted into a constructive trustee the holder of the property must transfer it to the constructive trust beneficiary. Thus,

to repeat, the constructive trust is a remedy that employs the language of trusteeship.Section E. Tortious Interference with and Expectancy Restatement (Second) of Torts recognizes intentional interference with an expected inheritance or gift as a valid cause of action.

The plaintiff must prove that the interference involved conduct tortious in itself, such a fraud, duress, or undue influence.Schilling v. Herrera Decedent, appoints P (brother) as power of attorney, personal representative, and sole beneficiary

under the will. She then goes into a rehab facility and moves in with her nurse, (D). Decedent makes a new will and the nurse is named power of attorney and the new beneficiary in the will. Decedent dies in Aug. and P is not notified until Dec. The new will had been offered for probate three weeks after decedent’s death. D rushes the will through probate, but FL recognizes tortious interference with an expectancy, so the P sues D on this theory.By alleging that the caretaker did not advise the brother of the decedent's death until after she had petitioned the probate court for discharge of probate, the brother sufficiently alleged that he was prevented from contesting the will in the probate court due to the caretaker's tortious conduct.

To state a cause of action for intentional interference with an expectancy of inheritance, the complaint must allege the following elements:

The existence of an expectancy Intentional inference with the expectancy through tortious conduct Causation Damages

*FL requires that you first exhaust your options in probate before pursuing a tortious interference with an expectancy, as do most states that recognize this tort. (But if fraud is not discovered until after…) An action for tortious interference with an expectancy is not a will contest. It does not challenge the probate or validity of a will,

but rather seeks to recover tort damages from a third party for tortious interference. In the jurisdictions that have recognized this tort, the courts usually require the plaintiff to pursue probate remedies first, if they

are adequate, and a failure to do so usually results in barring a tortious interference suit. Under this rule, if the plaintiff contests the will and loses, the plaintiff ordinarily is barred by the principle of res judicata from suing later in tort.

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Because a suit for tortious interference is not a will contest, a no-contest clause might not apply to such a suit. Punitive damages may be recovered against a wrongdoer in a suit in tort but not a suit seeking to prevent probate of a will on the

ground of undue influence or fraud.Chapter 4. Wills: Formalities and FormsSection A. Execution of Wills1. Attested Willsa. The Function of FormalitiesThere are four generally excepted functions of formalities in wills: Ritual function: Dispositive effect should not be given to statements, which were not intended to have that intent. Formalities

therefore generally require the performance of some ceremony for the purpose of impressing on the transferor the significance of his statements. This justifies the court’s belief that if the ceremony is performed the testator so intended the results.

Evidentiary function: Requirements for a transfer may increase the reliability of the proof presented at court. The inaccuracies of oral testimony suffer because of lapse of memory, misinterpretation, and unconscious coloring. Existing requirements for transfer emphasize the purpose of providing evidence to the court.

Protective function: Goal of safeguarding the testator against undue influence. **This goal is difficult to justify today** It is a reasonable assumption that in history wills were usually executed on the deathbed. A testator in this situation may need extra protection due to his weakened ability.

Channeling function: Much as it is easier to determine whether a coin is a quarter if every quarter is the same size, it is easier to determine a person’s wishes at death if they are channeled into a will with standardized formalities.

Basic formalities:o Writingo Signed by the testatoro Attestation by two witnesses

At common law there were two bodies of law that governed wills - the Wills Act and the Statute of Frauds. Statute of Frauds requires a signature by the testator and signatures of three witnesses. These requirements for will formalities now vary from state to state. Most jurisdictions now only require two witnesses, however, there may be other requirements as well.

Comparison of Statutory Formalities for Formal Wills

Statute of Frauds (Land) (1667)

Wills Act (1837) Uniform Probate Code (1990) Uniform Probate Code (1990, rev. 2008)

Writing Writing Writing Writing

Signature Subscription Signature Signature

Attestation & subscription by 3 witnesses

Attestation & subscription by 2 witnesses

Attestation & signature by 2 witnesses

Attestation & signature by 2 witnesses OR notarization

Uniform Probate Code (1990, as amended 2008) §2-502. Execution: Witness or Notarized Wills; Holographic Wills

o (a) [Witnessed or Notarized Wills.] Except as otherwise provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be:

(1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious

presence and by the testator’s direction; and (3) either:

(A) signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will; or

(B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.

o (b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

o (c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.

b. Writing, Signature, and Attestation: Strict Compliance Under traditional law, for a will to be admitted to probate it must be in strict compliance with the formal requirements of the

applicable Wills Act. The will must be in writing, signed by the testator, and attested by at least two witnesses, plus any additional requirements that are mandated by the particular jurisdiction must be satisfied precisely.

In re Groffman Both witnesses were not present together when Groffman acknowledged his signature.A will is not valid where the two subscribing witnesses to a will sign the will or acknowledge their signature on a will, but not in each others presence. Though a will represents the testator’s testamentary intentions, it is not valid if the testator does not acknowledge his signature or sign in the presence of two witnesses who are together at the time the testator signs or acknowledges his signature.

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Stevens v. Casdorph First, Haskell signed the will. Then Pauley took the will to two other bank employees, Ms. Waldron and Ms. Ginn to sign as witnesses. Both ladies testified in their depositions they did not see Haskell sign and Haskell did not go to with Pauley to the ladies’ work areas.

A will is not valid if the testator did not sign in it or acknowledge his signature in the presence of two witnesses, who are together, and sign their name or acknowledge their signature on the will. The law favors testacy over intestacy but this Court has held that a valid will must have testamentary intent and execution in a manner provided by the code, concurrently. A will is not valid where the two subscribing witnesses do not see the testator sign the will or acknowledge his signature, nor does the testator see the witnesses sign their names or acknowledge their signatures on the will.

Attestation clause—An attestation clause recites that the will was duly executed. Although no state requires the use of an attestation clause, such a clause gives rise to a presumption of due execution and it is almost certainly professional malpractice not to include one.

o With an attestation clause, the will may be admitted to probate even though the witnesses predecease the testator or cannot recall the events of execution. Moreover, if one of the attesting witnesses testifies that the steps for due execution were not satisfied, the attestation clause gives the lawyer for the proponent ammunition for a vigorous cross-examination, and the will can often be admitted to probate on the presumption of due execution despite such testimony.

The Meaning of “Presence” in Will Execution Why require witnesses to be present at the same time? For one, we want to be sure that the witnesses are witnessing the same

document, but we also require simultaneous presence in order to ensure the capacity of the testator. The testator’s capacity can change over time.

Line of Sight: Presence test is satisfied only if the testator is capable of seeing the witness during the act of signing. It does not matter if the testator DOES see, but only that if they looked they would have seen. (exception for blind testators)

Conscience Presence Test: This test is met if the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing.

UPC 2-502(a) dispenses altogether with the requirement that the witnesses sign in the testator’s presence.

Meaning of “Signature” in Will Execution A signature by the testator with her full name at the end of the document will almost always satisfy the signature requirement.

Problems arise when the testator’s signature takes a different form.o Signature by mark, with assistance from another—Although it is preferable for the testator to sign in full, a mark,

cross, abbreviation, or nickname can be sufficient. If one has trouble holding a pen and a witness assisted him in signing his name, the signature would be valid

if he intended to adopt the document as his will. Likewise, if someone else signed their name at their direction and in their presence, the will would be valid. (also signing on computer was valid)

Signed or signature includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed.

o Order of Signing—In general, the testator must sign or acknowledge the will before the witnesses attest, but if they all sign as part of a single or continuous transaction, the exact order of signing is not critical.

o Subscription and Addition After Signature—Statutes in a few states have adopted the English Wills Act requirement that the testator sign the will at the foot or end thereof, a requirement that is usually called subscription. If a handwritten line was added after the testator signed the will, the will would be admitted to probate, but the line would be ineffective as a subsequent unexecuted codicil.

o Delayed Attestation—Suppose a witness observes the testator make or acknowledge his signature, but the witness does not immediately sign the will herself. How long may a witness delay attestation without compromising the validity of the will? NY=30 days. UPC= within a reasonable time.

Estate of Morea Three witness attest to T’s will. One of the witnesses is uninterested, one is an interested friend the third is the testators son. What should happen to the will and/or the bequest to the son/friend?

The NY statute requires at least two other witnesses who receive no benefit if an attesting witness is also a beneficiary. Kevin, the son, gets his share because he receives less than the intestate share under the will and therefore receives no benefit. Friend is okay because there are other witnesses who receive no benefit.

Interested Witnesses and Purging Statutes—Early wills in England could not be attested by an interested party. The court would allow a will to probate but would purge the bequest to the interested party. The purging statutes apply only to a witness who is necessary for the will’s validity. If the will is witnessed by a sufficient number of disinterested witnesses, the interested witness is said to be “supernumerary” and is entitled to take his full bequest

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o Most statutes purge only the benefit that the witness would receive under the will that is in excess of what the witness would have received in intestacy

o A substantial Minority of States follow UPC 2-505(b) which provides that an interested party may witness even if getting a share larger than intestacy

Self- Proving Affidavits—Affidavit reciting that all the requirements of due execution have been complied with; permits the will to be probated. Self-proving affidavits are executed in front of a notary public

o One step—combined attestation clause and self-proving affidavito Two-step—separate attestation clause and affidavit

2. Curing Defects in the Execution of Attested Willsa. Excusing Execution Defects by Ad Hoc Exception Under the traditional rule of strict compliance with the Wills Act, almost any mistake in execution invalidates the will. To avoid

this harsh result, some courts have occasionally excused or corrected an obvious execution defect, while others have taken the position that there can be no relief from the rule of strict compliance

In re Pavlinko’s Estate H and W agreed to leave their property to each other in the event that either of them died. W signed the will that was created for her husband and H signed the will that was created for his wife.A will is not valid if the will specifically purports to be the will of one person but is signed by his or her spouse. The Wills Act specifically requires that a will be in writing and signed by the testator. Here the will was not signed by the person whom the will describes as being the creator. Even though the facts show that the husband signed his wife’s will by mistake and both the spouse and the husband intended to leave their property to each other, the will cannot be probated because it does not meet the requirements.

In re Snide H and W intended to execute mutual wills at a will execution ceremony. Both mistakenly signed each other’s will. The wills were identical except as to the names of the donors and beneficiaries on the wills (they left everything to each other). Some of H’s descendants objected to the will.

One of two mutual wills that are simultaneously executed according to statutory formality may be admitted to probate even though both parties mistakenly signed the other’s will. Because both wills have the same attesting witnesses, and were signed at the same time, there is no risk of fraud or mistake. The testator’s intent is present along with his awareness of the seriousness of the event.

There are two different modes of correcting a switched wills error.o One option is to probate the will that the decedent intended to sign but did not. The difficulty under this approach is

that the document offered for probate was not signed by the decedent.o The other option is to probate the will that the decedent actually signed and then to reform its terms to make sense.

b. Curative Doctrines: Substantial Compliance and Harmless Error Under the substantial compliance doctrine, the court may deem a defectively executed will as being in accord with the

statutory formalities if the defective execution nonetheless fulfills the purposes of those formalities. Under the harmless error rule, also known as the dispensing power, the court may excuse noncompliance with statutory

formalities if there is clear and convincing evidence that the decedent intended the document to be his will.In re Will of Ranney During the execution of decedent’s will, the two witnesses did not sign the will. Instead, they signed

an affidavit swearing they had previously witnessed decedent sign his will. The lawyer executing the ceremony was not aware that the will itself needed an attestation clause. He believed that the affidavit alone without the witnesses’ signature on the will was sufficient.If a will is not formally executed in compliance with statutory requirements, then that will may still be admitted to probate if its substantially complies with those requirements. If the witness, with the intent to attest sign a self proving affidavit, but do not sign the will or an attestation clause, clear and convincing evidence of their intent should be adduced to establish substantial compliance with the statute. Under statutory requirements, the will may not be probated unless attesting witnesses sign it, even though the witnesses may have signed the affidavit. Affidavits and attestation clauses serve different purposes. The legislature expressed the intent that the affidavit be submitted along with a duly executed will. A will without an attestation clause is not duly executed. A will may be probated if the proponents of the document can prove by clear and convincing evidence that the testator intended the document to be his will. Statutory formalities exist for the purposes they serve. The purpose of a signature is to provide reliable evidence that the will and its terms reflect the testamentary intent of the deceased.

Substantial compliance is a functional rule designed to cure the inequity caused by the harsh and relentless formalism of the law of wills. Finding of a formal defect should not lead to automatic invalidity, but to a further inquiry: does the noncomplying document express the decedent’s intent, and does its form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purposes of the Wills Act?

Reasons for the formalities:o To ensure that the document reflects the uncoerced intent of the testator.

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o Serves as an evidentiary function by providing evidence of the terms of the will and the testamentary intent.o Attestation requirements prevent fraud and undue influence.o The formalities perform a channeling function by requiring a certain degree of uniformity in the organization,

language, and content of wills.o The ceremony serves as a ritual that impresses the testator with the seriousness of the occasion.

Uniform Probate Code (1990, as amended 1997) Section 2-503. Harmless Error

o Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed 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 (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will.

In re Estate of Hall H and his W executed a joint will and their attorney notarized it said that he would rewrite it without “scribbles”. H asked his lawyer if the will was valid and the lawyer assured him that it was valid. However no witnesses were present. On their way home, H told W to tear up the first will. W tore up the first will.A document that is not properly witnessed by two people who see the testator sign the will and also sign themselves may be probated if the proponent of the document establishes by clear and convincing evidence that the decedent intended that document to be his will. A proponent establishes by clear and convincing evidence that decedent intended a document to be his will where he revoked his first will in second will and instructed his wife to tear up his first will. Testamentary intent may still exists where there is evidence that the testator did not give the will to anyone because he said it was not finished because the testator may have wanted the will to stand until his attorney provided for a final will.

3. Notarized Wills As ameded in 2008, UPC §2-502(a)(3) provides that a will is valid if it is signed by two witnesses or by a notary. As long as it is clear that the decedent adopted the document as his or her will, the law has no reason to deny validity on he

ground of defective execution. A testator who goes to the trouble of going to a bank or even a package or photocopy store to get a home-drawn will notarized

shows as much of a deliberate purpose to make the will final and valid as asking a couple of individuals to sign as witnesses.4. Holographic Wills In slightly over half of the states, holographic wills are permitted. A holographic will is a will written by the testator’s hand and signed by the testator; attesting witnesses are not required.Kimmel’s Estate Kimmel wrote a letter on the morning of his death to his sons and family. He discussed the bad

weather and his desire to write a second letter. However he expressed doubt that the letter would ever be made. He then wrote, “if enny thing happens,” and stated that specific property should go to his two children George and Irvin.The form of a document is only one element in determining the testamentary character of document. A document is testamentary in character where it expresses intent make a gift at death. Here, (1) the testator disposed of property on the condition of an event occurring, (2) the event that occurred was the testator’s death, (3) the testator was sick at the time of writing the letter, and (4) the testator sent the letter to his beneficiaries and instructed them to preserve the letter. A holographic will may be probated where the testator writes a name or word other than his specific name if the evidence shows that in light of the nature of the document, the testator intended the writing to be his signature. Here, the evidence showed that the testator wrote several letters and signed them with the word, “Father.”

Conditional Wills:o Eaton v. Brown —I am going on a journey and may not return. If I do not . . . . Here T survived the journey and later

died. Was this a probatable will? Most cases similarly find that the language of condition does not mean that the will is to be probated ONLY if the STATED event occurs, but it is merely a statement of the inducement for the execution of the will, which can be probated upon death from any cause. (sometimes the opposite—heart surgery case)

If a testator writes her will by hand on a typed or preprinted will form but fails to have the form properly attested, the instrument fails, as a formal will. Whether the instrument can be probated as a holograph depends on how much of the instrument is in the testator’s handwriting.

Estate of Gonzalez Case involving standard will form. Much of the document is written in the testator’s handwriting, however he dies before anyone can attest to the will. The writing is pretty extensive; he makes gifts to three of his five children, leaving out two of them. The form is fairly messy, multiple cross outs, phone

Must be seen as a holographic will b/c its lack of signature would defeat a formal will to probate. Look at context of handwritten words. Court holds that printed portion of a will form can be incorporated into a holographic will where the trial court finds testamentary intent. A holograph will may be valid even though immaterial parts are

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numbers scribbled on the form and the form is signed on the first page

printed or stamped.

To be valid, a holographic will must be written by the testator’s hand and signed by the testator. Out of this simple formulation, however, arise two important interpretive problems: (a) the nature of the requirement that the testator sign the holograph, and (b) how much of the holograph must be in the testator’s handwriting.

o Signature—In almost all states permitting holographs, the will may be signed at the end, at the beginning, or anywhere else on the face of the document. But if it is not signed at the end, there may be doubt about whether the decedent intended his name to be a signature.

o The Extent of the Testator’s Handwriting—how much of the doc must be written in the testators own handwriting? The statutes fall into three categories.

First Generation statutes: entirely written, signed and dated—Under these statutes, holographs were sometimes struck down even when they included only one or two printed words.

2nd Gen Statutes (1969 UPC): material provisions—requires only the signature and the material provisions of the holograph be in the testator’s handwriting.

3rd Gen statutes (1990 UPC): material portions and extrinsic evidence allowed—A will is valid as a holograph will whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting. Also extrinsic evidence may be used to establish testamentary intent.

In re Estate of Kuralt Kuralt executed a will disposing his real property to his wife and children. Two weeks before his death, Kuralt wrote a letter to his mistress, Elizabeth Shannon, expressing his desire that she inherit a specific item of real property. Shannon sought to probate the letter as a codicil.When a second will does not make a complete disposition of the testator’s estate, the second will is a codicil the first will. A letter expresses testamentary intent where the evidence shows the testator believed that he was close to death at the time of writing the letter and the facts show that intent to convey a specific item of property to a particular beneficiary. Kuralt’s 1997 letter to Shannon expressed testamentary intent, not a future intent to create a will. Letter is a codicil to his will because the testator only disposed of his remaining ownership interest in the Montana property and did not dispose of his entire estate. (Extrinsic evidence was allowed.)

A codicil is a testamentary instrument (i.e., a will) that amends a prior will but does not replace it.Section B. Revocation of Wills1. Revocation by Writing or Physical Act Wills are “ambulatory”, which means that they are subject to modification or revocation by the testator during her lifetime. All

states permit revocation of a will on one of two ways: (1) by a subsequent writing executed with testamentary formalities or (2) by a physical act such as destroying, obliterating, or burning the will.

Uniform Probate Code (1990) Section 2-507. Revocation by Writing or by Act.

o (a) A will or any part thereof is revoked: (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or (2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the

purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a "revocatory act on the will," whether or not the burn, tear, or cancellation touched any of the words on the will.

o (b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

o (c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.

o (d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.

The modern view is to treat a subsequent will that does not expressly revoke the prior will, but makes a complete disposition of the testator’s estate, as presumptively replacing the prior will and revoking it by inconsistency. If the subsequent will does not make a complete disposition of the testator’s estate, it is not presumed to revoke the prior will but is viewed as a codicil, and the property not disposed of under the codicil is disposed of in accordance with the prior will.

A codicil is a testamentary instrument that supplements, rather than replaces, an earlier will; the codicil supersedes the will to

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the extent of inconsistency between them. The older view is that, in the absence of a revocation clause, a general residuary clause in a later will was not enough to revoke

specific bequests in an earlier will because the earlier individual bequests and the later residuary clause were not literally inconsistent.

Harrison v. Bird Speer called her lawyer and told him that she wanted to revoke her will. Then the lawyer or his secretary, in each other’s presence, tore the will, put the torn pieces in an envelope along with a letter informing Speer that her will had been revoked. Harrison attempted to probate her copy.

If there is evidence that a will was in a testator’s possession before death and not found among her personal effects at death, a rebuttable presumption arises that the testator revoked her will. If a testator destroys her will before death, a presumption arises that she revoked the will and all duplicates even though a duplicate may exist with another person. The proponent of the will must rebut the presumption by clear and convincing evidence.

Presumption of Revocation—The restatement (third) takes the position that the revocation is not such a strong one that clear and convincing evidence is required to rebut it.

Estate of Turner—The presumption was rebutted under a preponderance of the evidence standard by the testimony of a disinterested witness who saw the will on the day of the testator’s death and the fact that the testator’s disinherited siblings had access to the testator’s house immediately after testator’s death. Some courts require clear and convincing evidence.

Probate of Lost Wills: in the absence of a statute to the contrary, a will that is lost, destroyed without T’s consent, or destroyed with T’s consent but not in compliance with the revocation statute can be admitted into probate if its contents are proved (e.g. by a copy of the original or other clear and convincing evidence). A lost will can still be a valid will.

In a few states, statutes prohibit the probate of a lost or destroyed will unless the will was in existence at the testator’s death (and destroyed thereafter) or was fraudulently destroyed during the testator’s life.

Thomson v. Royall Kroll asked Coulling and Brittain to bring her will and codicil to her home. She told them both in the presence of her attorney to destroy them. Coulling suggested that instead of destroying the will and codicil, Kroll should retain the will and codicil in the event that she decided to execute a new will. Coulling wrote on the back of the manuscript cover to the will the words, “This will null and void and to be only held by H.P. Brittain instead of being destroyed as a memorandum for another will if I desire to make the same. This 19 Sept., 1932.” Kroll then signed the document. The same was written on the back of the codicil except the name S.M.B. Coulling was substituted for H.P. Brittain and signed by Kroll. The trial court admitted the will and codicil and Kroll’s heirs at law appeal the decision.

To revoke a will other than by creating another duly executed will, the first will must be destroyed by a cutting, tearing, burning, obliterating, or destroying the will. If it is revoked by words that do not quality themselves as a validly executed will, those words must physically come into contact with the words of the will. A will or codicil is not revoked where the testator attaches a paper to a will writing “this will null and void” because it was not executed the way a will is required to be executed. The will was not revoked because the words “this will null and void” did not physically come into contact with the words of the original will, even though the testator wrote words on a separate paper attached to the will that declared the will null and void. Furthermore, the words themselves did not constitute a validly executed will.

The UPC would change the result in Thompson. 2-507 allows for a cancellation regardless of whether the cancellation touches any of the words of the will. The codicil would be revoked but the will is a tougher case because it was written on a manuscript cover and not the will itself. However, it would have been revoked under the harmless error rule of 2-503.

Tearing up a copy may not revoke a will (depending on harmless error). However in a case that the court held that it is not, the court imposed a constructive trust on the codicil beneficiary for the benefit of the will beneficiary because it was a mistake of fact.

Partial Revocation by Physical Act: The jurisdictions are split over whether partial revocation by physical act is permitted. There are two concerns. First, it increases the potential for fraud. Second, it raises fears that a partial revocation intrinsically is also a new gift. By revoking only part of a will, the revoked part has to go somewhere. If it goes anywhere else in the will, it arguably is a new gift. New gifts should be executed with Wills Act formalities—so the reasoning goes. Due to these concerns, not all jurisdictions recognize partial revocation by physical act. UPC 2-507 allows it.

A few cases have held that the testator can revoke a complete devise, but cannot rearrange the shares in a single devise to increase the other devisee’s gift.

2. Dependent Relative Revocation and RevivalDDR—If the testator purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if the testator would ot have revoke his will had he known the truth. The doctrine is one of presumptive intent, not actual intent.

LaCroix v. Senecal Celestine Dupre executed a codicil to her will but only change a minor detail. She clarified the name of her nephew in the codicil. The

A codicil that revokes a prior will but only makes a change to refer to a beneficiary in a manner so that there is no mistake about his identity, is only

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codicil was invalid because it did not have the proper number of witnesses and the court considers whether the codicil revoked the first will. Whether the doctrine of dependent relative revocation may be invoked to sustain a gift by will, when such gift has been revoked in a codicil which substantially reaggirmed the gift but was void as to it by reason of the interest of a subscribing witness?

effective as a revocation if the codicil is valid. Where a testator executes a codicil to revoke a prior will the revocation is dependent upon the validity of the codicil if the codicil only clarifies the relationship of a beneficiary to the testator. The only change the testator made in the codicil to her prior will is that she referred to nephew by the name in the will and also an additional name by which he was also known.

Doctrine of Dependent Relative Revocation —if a testator cancels or destroys a will with a present intention of making a new one immediately and as a substitute and the new will is not made or, if made, fails of effect for any reason, it will be presumed that the testator preferred the old will to intestacy, and the old one will be admitted to probate in the absence of evidence overcoming the presumption.

o Where the intention to revoke is conditional and where the condition is not fulfilled, the revocation is not effective.Estate of Alburn In 1955 T executes Milwaukee will; in 1959

she executes Kankakee will; 1960 T shows her brother the torn up K will and tells him she revoked it because she wanted to revive M will; under WI statute revival does not occur without re-execution of the M will. Evidence suggests that T did not wish to die intestate and destroyed the K will under the mistaken belief that this would revive the M will.

Court applies DRR and permits K will (not M will b/c statute). Court finds that although K will was physically destroyed by T, T assumed destruction of K will would revive M will. Since that was a mistake of law on T’s part, court considers that T did not have intent to revoke when she destroyed K will.

Tendencies: Almost invariably, where the revocation is by act, the mistake is a mistake of law in that the testator attempted a new will or codicil that was invalid. Almost invariably, where the revocation is by writing, the mistake is a mistake of fact that must then be set forth in the valid revoking instrument. It is possible however, to have a valid revocation by writing where the mistake is of law. But the mistake still has to be set forth in the writing (the new gift fails because it violates the Rule against Perpetuities, it violates public policy, and so forth).Courts have let limits on the DRR doctrine. With rare exceptions, courts have held that DRR applies only (1) where there is an alternative plan of disposition that fails, or (2) where the mistake is recited in the terms of the revoking instrument or, possibly, is established by clear and convincing evidence.Revival of a Revoked WillAssuming a testator validly executes will #1, and thereafter validly executes will #2 that expressly or implicitly revokes will #1, and thereafter validly revokes will #2 intending to give effect to will #1, the jurisdictions are split over what the testator must do to “revive” will #1.

English approach: Under the English approach, will #1 was never really revoked so it could be probated. The English approach takes literally the statement that a will is not effective until the testator dies. (Few States)

The large majority of states assumes that will #2 legally revokes will #1 at the time will #2 is executed. But they divide into two groups.

o A majority of states holds that upon revocation of will #2, will #1 is revived if the testator so intends. The testator’s intent may be shown from the circumstances surrounding revocation of will #2 or from the testator’s contemporaneous or subsequent oral declarations that will #1 is to take effect.

o A minority of states take the view that a revoked will cannot be revived unless re-executed with testamentary formalities or republished by being refered to in a later duly executed testamentary writing.

Nearly half of the states have adopted a statute based on UPC §2-509, either in its 1969 or 1990 version.

Uniform Probate Code (1990) Section 2-509. Revival of Revoked Will.

o (a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.

o (b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.

o (c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.

3. Revocation by Operation of Law: Change in Family Circumstances

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Divorce:o The overwhelming majority rule is that divorce automatically and irrebuttably revokes all provisions in a testators will

in favor of the ex-spouse, unless the will expressly provides otherwise. In the remaining states, revocation occurs only if divorce is accompanied by a property settlement.

o UPC 2-804 (1990) applies to nonprobate transfers as well as wills. The term governing instrument is defined to mean a deed, will, trust, insurance or annuity policy, account with a payable-on-death designation, pension plan, or similar nonprobate donative transfer.

Marriage:o If the testator executes a will and subsequently marries, statutes in a large majority of states give the spouse his

intestate share, unless it appears from the will that the omission was intentional or the spouse is provided for in the will or by a will substitute with the intent that the transfer be in lieu of a testamentary provision. In a minority of states, the premarital will is revoked entirely upon marriage.

Birth of Children:o Statutes in a few states follow the old common law rule that marriage followed by birth of children revokes a will

executed before marriage, but this rule has not been incorporated into the UPC and is rapidly disappearing.o Almost all states have pretermitted child statutes, giving a child born after the execution of a parent’s will, and not

mentioned in the will, a share in the parent’s estate. Sometimes pretermitted child statutes include children born before the execution of the will as well as children born thereafter. A pretermitted child statute, if applicable, results in the revocation of the parent’s will to the extent of the child’s share.

Section C. Components of a Will1. Integration of Wills Under the doctrine of integration, all papers present at the time of execution, intended to be part of the will, are integrated into

the will. Litigation involving integration arises when the pages are not physically connected and there is no internal coherence, or there is

evidence that a staple has been removed, or one page is in one font whereas the rest of the will is in another font.2. Republication by Codicil Under the doctrine of republication by codicil, a will is treated as re-executed as of the date of the codicil: A will is treated as if

it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator’s inten.

Updating the original will in this manner can have important consequences. Suppose that the testator revokes the first will by a second and then executes a codicil to the first will. The first will is republished, and the second will is revoked. Should only be applied when updating a will carries out the testator’s intent..

3. Incorporation by ReferenceUniform Probate Code (1990) § 2-510. Incorporation by Reference.

o A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Clark v. Greenhalge Helen Nesmith executed a will and made reference to a document outside of the will that would give guidance on how to distribute her estate. The executor, also a beneficiary under the will, refused to distribute a painting in accordance with a notebook that listed how Nesmith wanted to distribute certain pieces of personal property at her death.A document may be incorporated into a will by reference if the will makes reference to the document, the document was in existence at the time that the will was created, and is the document is sufficiently identifiable in the will. The language in the will, “a memorandum” does not preclude the existence of more than one memorandum. It also does not preclude the existence of a document in the form of a notebook from being included in the will. The fact that it was not labeled as such does not mean that it was not intended by the testator to be an instruction as to how to distribute her property at death. Since the testator retained the right to amend and alter her will after execution, the notebook is sufficiently described since it guides the executor in distributing her estate at death and the notebook was in existence at death. A document may be incorporated by reference if the will refers to the document and the document was in existence when codicils were made to the will, even if it did not exist at the time the original will was created. Also, the item is sufficiently described in the will even if it is not specifically referred to if it serves the same purpose as is indicated in the will.

Simon v. Grayson Grayson executed a will making reference to another document that would explain how to distribute $4,000 of his estate. The will indicated that the document would be dated March 25, 1932. Instead the document was dated July 3, 1933. The testator executed a codicil on November 25, 1933 and the court considers whether to include the document as

A document may be incorporated into a will that was in existence at the time a later codicil was made but not in existence at the time the will was written. A will makes sufficient reference to a document outside of the will to be incorporated by reference even though the will states the date on the document is different to the date referenced in the will as long as the document serves the same

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a part of the will. function as the one stated in the will.Uniform Probate Code (1990) Section 2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal Property.

o Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.

Johnson v. Johnson Dexter G. Johnson typed a will that he did not sign or have witnessed. He handwrote another testamentary provision on the same document and signed the will. The Court considers whether the document may be admitted to probate. Whether a will that is invalid for lack of signature and attestation may be incorporated by reference into a codicil (holographic) written on the same document as the will?

Where a testator makes a testamentary disposition in his own handwriting on an invalid typed will, and the circumstances show he intended the writing to be a codicil to the invalid will, the court will incorporate the invalid will by reference into the codicil. The circumstances show the testator intended the handwriting to be a codicil and it incorporates the will by reference. Where there is strong evidence of testamentary intent to republish an invalid will by a codicil, the court will incorporate the will by reference and republish the will.

4. Acts of Independent SignificanceIf the beneficiary or property designations are identified by acts or events that have a lifetime motive and significance apart from their effect on the will, the gift will be upheld under the doctrine of acts of independent significance; (e.g. “the car that I own at my death).

Uniform Probate Code (1990) Section 2-512. Events of Independent Significance.

o A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event.

Section D. Contracts Relating to Wills A person may enter into a contract to make a will or a contract not to revoke a will. To enforce a contract, the third party

beneficiary must sue under the law of contracts and prove a valid contract. If, after a contract becomes binding, a party dies leaving a will not complying with the contract, the will is probated but the contract beneficiary is entitled to a remedy for the broken contract. (constructive trust, specific performance, damages, etc.)

1. Contracts to Make a WillMany states now subject contracts to make a will to a Statute of Frauds provision, thus requiring such contracts to be in writing in order to be enforceable. If the contract beneficiary is not entitled to enforce the contract because of non-compliance with the Statute of Frauds, the beneficiary may be entitled to restitution of the value to the decedent of services rendered (quantum meruit).2. Contracts Not to Revoke a WillOften arises with joint wills: one will for two people (typically spouses). Mutual wills are separate wills of two or more persons that contain similar or reciprocal (mirror-image) provisions (these are more common than joint wills). These types of wills can be executed pursuant to a contract between the testators not to revoke their wills. Most courts hold that the mere execution of a joint or mutual will does not give rise to a presumption of contract (but it is an argument that often arises). To avoid this problem the attorney should insert a provision in every joint or mutual will, declaring that the will was or was not executed pursuant to a contract.

Uniform Probate Code (1990) Section 2-514. Contracts Concerning Succession.

o A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of this Article, may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Via v. Putnam Edgar and Joann Putnan executed mutual wills in which they agreed not to commit any acts that would disrupt the distribution scheme. Edgar Putnam remarried after Joann Putnan died. Putnam’s surviving spouse

Third party beneficiaries of a mutual will may do not have a claim to a surviving spouse’s elective share. Courts will not allow parties to interfere with a surviving spouse’s rights under a pretermitted spouse statute unless the parties

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elected to take her share under a pretermitted spouse statute and Putnam’s children from his first marriage sought a claim against the surviving spouse’s elective share.

specifically waive their right to take an elective share. One spouse cannot through contract prevent another person from taking an elective share under a state statute.

Chapter 5. Construction of WillsSection A. Mistaken or Ambiguous Language in Wills1. The Traditional Approach: No Extrinsic Evidence, No Reformation The Plain Meaning or No Extrinsic Evidence rule—extrinsic evidence may be admitted to resolve some ambiguities, but the

plain meaning of the words of the will cannot be disturbed by evidence that another meaning was intended. The No Reformation rule—Reformation is an equitable remedy that, if applied to a will, would correct a mistaken term in the

will to reflect what the testator intended the will to say. The justification is that the court is thereby compelled to interpret the words that the testator actually used, not to interpret the words that the testator is purported to have intended to use.

Mahoney v. Grainger Sullivan executed a will that disposed her real and personal property to her “heirs at law.” Extrinsic evidence revealed that she informed her attorney that she wanted to leave her property to her twenty-five cousins, equally. The trial judge ruled that Sullivan’s only heir at law was her aunt and not her twenty-five cousins.

Extrinsic evidence is not admissible when the beneficiary of a will can be identified on the face of the will. The words used in the will, “heirs at law living at the time of my decease” undoubtedly refer to the testator’s aunt and not her cousins. The testator’ only heir at law was her aunt. Extrinsic evidence would only be admissible to help to determine the meaning of testamentary language that is not clear in its application to the facts.

Plain Meaning, Ambiguity, and Extrinsic Evidence Patent ambiguities—Appears on the face of the will. Under traditional law, extrinsic evidence is not allowed to clarify patent

ambiguities. Increasingly, however, extrinsic evidence is being allowed. Latent Ambiguities—manifests itself only when the terms of the will are applied to the testator’s property or designated

beneficiaries. Two types:o The first type occurs when a will clearly describes a person or thing and two or more persons or things exactly fit that

description.o The second type exists when no person or thing exactly fits the description, but two or more persons or things partially

fit.

2. Slouching Toward Reformation: Correcting Mistakes Without the Power to Reform WillsThere is a trend toward admitting extrinsic evidence not merely to resolve latent and more recently, patent ambiguities, but also to correct mistaken terms to conform the will to the actual intent of the testator.Arnheiter v. Arnheiter Guterl made a disposition of her home. She correctly identified the street, city, and state where it was

located as well as her one-half interest in the property. However she did incorrectly identified the street number.Where a description of a thing or person consists of several particulars and all of them do not fit any one person or thing, less essential particulars (house #s) may be rejected provided the remainder of the description clearly fits. However the court does not have power to correct or reform a will. The identification of property in a will does not have to be exact, but only needs to clearly fit the actual property that exists. The disposition will be valid if despite a description that does not fit, the remaining description clearly identifies the property.

Estate of Gibbs George and Lena Adele Gibbs executed wills with an identical provision disposing of property to a “Robert J. Krause, now of 4708 North 46th Street, Milwaukee, Wisconsin.” However, they intended to make a gift to a “Robert W. Krause” who unbeknownst to the Gibbs, lived at a different address.

Courts should receive evidence tending to show that a mistake has been made when details such as the middle initials, street addresses and the like are involved in identification of will bequests and devises. Details of identification, particularly such matters as middle initials, street addresses, and the like are highly susceptible to error and extrinsic evidence is proper to show the testator’s intent. To give effect to the probable intent of the testator, the court will allow extrinsic evidence when the gift appears to be unclear under the circumstances.

3. Openly Reforming Wills for MistakeErickson v. Erickson Two days before their wedding, Erickson and

the defendant executed mutual wills. The Probate Court admitted the will even though it did not contain a provision about the contingency of marriage. However the Probate

Under statutory law, if a testator writes a will and later marries, the act of marriage revoke’s the testator’s will unless the will includes a provision concerning the contingency of marriage. Extrinsic evidence is admissible to prove the testator’s intent

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Court ruled that the will contained a contingency clause because of the fact that the will bequeathed all of his estate to a woman that he did in fact marry two days later, and designated the defendant as his executrix and guardian of his daughters.

when the writer of the will made a mistake as to the testator’s in drafting the will. There must be clear and convincing evidence that the writer’s error induced the testator to execute a will that he intended to be valid despite his subsequent marriage. The testator relied on his lawyer and did nothing to change his invalid will.

Uniform Probate Code (2008) Section 2-805. Reformation to Correct Mistakes.

o The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence that the transferor’s intent and the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.

Fleming v. Morrison Francis M. Butterfield created a will disposing of all of his real and personal property to Mary Fleming. Butterfield told Sidney Goodridge, one of the witnesses to the will, that the will was a fake created solely to induce Fleming to sleep with him.Extrinsic evidence is admissible to contradict the statements in a will that it is a will, that it had been signed by a person named as the testator, and attested and subscribed by persons signing as witnesses. Extrinsic evidence is admissible to prove that one witness was not truly signing as a witness to a will. The testator told a witness that the will was fake and composed for another motive. Because a will in this jurisdiction requires three witnesses and one of them did not truly believe that the testator was signing his will, the will is not valid.

Section B. Death of Beneficiary Before Death of Testator1. IntroductionIf a devisee does not survive the testator, the devise lapses (fails). In nearly all states, Antilapse statutes have been enacted that, under certain specified circumstances, substitute another beneficiary for the predeceased devisee. Specific or general devise—if a specific or general devise lapses, the devise falls into the residue. Residuary Devise—If the residuary devise lapses, the heirs of the testator take by intestacy. No residue of a residue rule—if one

share of a residue lapses, it does not go to the other residuary devisee (however, in most states it has been overruled by statute). Class Gift—If the devise is to a class of persons, and one member of the class predeceases the testator, the surviving members

of the class divide the gift. Void Devise—Where a devisee is already dead at the time the will is executed, or the devisee is a dog or a cat or some other

ineligible taker, the devise is void.Estate of Russel Russell executed a will disposing of all her real and personal property to a close friend and her dog.

The trial court held that the gift to the dog was precatory in nature and that the testator intended that her close friend care for the dog.The anti-lapse statute applies to void gifts as well as beneficiaries who predecease the testator. Extrinsic evidence is admissible to prove the testator’s intent if in light of the circumstances surrounding the creation of the will, the language in the will is susceptible to two or more meanings. Extrinsic evidence is not admissible to prove the testator’s intent because the language of the will does is not reasonably susceptible to one or more meaning. Here the testator left her property to an person and to her dog. The language did not state that the testator was making a gift to a person for the benefit of the dog. The will on its face makes a gift to the dog.

2. Antilapse StatutesAn Antilapse statute applies to a lapsed devise only if the devise bears the particular relationship to the testator specified in the statute.Ruotolo v. Tietjen Testator executed a will which contained a

residuary clause bequeathing one half of the property to his step daughter Hazel Brennan if she survived the Testator. However, Brennan died 17 days prior to the testator.

Antilapse Statute: When a devisee is child or stepchild or grand child or brother or sister of the testator dies before him and there is no provision in the will for such a situation, then the children of such devisee will take the estate so devised or bequeathed. The aims of the statutes are to prevent the unintentional disinheritance. The words “if she survives me” alone are insufficient to negate the operation of the statute.

3. Class GiftsDawson v. Yucus T devised her interest in her late husband’s

farm house to two nephews living on her husband’s side of the family. One of the nephews died before T. The trial court held the gift was not a class gift and because of the death, a latent ambiguity was created and the

Naming an individual beneficiary in a will prevents the gift from being a class gift unless the remaining provision in the will as applied to the facts show that the testator intended to make a class gift. The testator’s gift did not constitute a class gift because even though the testator wrote that she desired that

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court admitted extrinsic evidence showing evidence of T’s intent. The testimony showed that T wanted the property to go to her husband’s side of the house.

her farm lands go to back to her “husband’s side of the house”, she then specified two individuals from her husband’s side and gave each of them specified gifts. The testator only mentioned two members from a class.

Section C. Changes in Property After the Execution of Will1. Ademption by Extinction Applies to specific devises of real and personal property. Identity Theory—if a specifically devised item is not in the testator’s estate, the gift is extinguished (subject to limited

exceptions). Intent Theory—If the specifically devised item is not in the testator’s estate, the beneficiary may nonetheless be entitled to the

replacement for, or cash value of, the original item, depending of whether the beneficiary can show that this is what the testator would have intended.

In re Estate of Anton Nancy as a durable power of attorney sold in 2003 a duplex (which had been specifically devised in a 1981 will) to provide nursing home care for her mother. Mother had no knowledge of the sale. What result should occur when the principal is competent but the attorney in fact sells a specific devise w/o knowledge of the testator?

If Mary was aware of the transaction, was aware of the impact the transaction had on her estate plan, and did not change her will, ademption would occur under the identity theory. The question is whether the testator had the opportunity to change her will once she knew that the devise was no longer part of her estate. Here, Mary had no opportunity. In cases where specific devises are removed from the estate as a result of an involuntary act, the devisee is entitled only to the proceeds which have not been expended on the support of the testator.

2. Stock Splits and the Problem of Increase

3. Satisfaction of General Pecuniary Bequests

4. Exoneration of Liens

5. Abatement

Chapter 6. Nonprobate transfers and Planning for IncapacitySection A. An Introduction to Will Substitutes

Life insurance Pension Accounts Bank, Brokerage, and Mutual Fund Accounts The Revocable Inter Vivos Trust Imperfect Will substitutes—Joint tenancy

Section B. Will Substitutes and the Wills Act1. Revocable TrustsFarkas v. Williams The deceased purchased stock and held it in the form of a trust for a beneficiary, who was entitled to

the stock in the event of his death. He executed trust declarations at the time of the purchase of each stock. After he died, the circuit court held that the declarations were invalid testamentary dispositions.An intervivos trust where the settlor does not retain all of the powers of normal ownership of stock and where the settlor has a fiduciary duty to the beneficiary as the trustee of the trust is valid and not a failed testamentary disposition where the beneficiary takes the trust property upon the settlor’s death, and the trust is executed in a formal manner. A document is a valid intervivos trust where the settlor relinquishes some of the powers that are incident to stock ownership and the beneficiary has a claim against the settlor as a trustee if he does not fulfill his duties to the beneficiary in regards to the trust property, and the trust is formal.

Linthicum v. Rudi D made Ps beneficiaries of a revocable trust upon D’s death. D later changed the beneficiary and removed Ps.

Beneficiaries of a revocable inter vivos trust have at most, only a contingent interest that has not yet vested. Because of this, they have no standing to challenge the trust during the settlor’s lifetime.

2. Payable on Death Contracts and Other Nonprobate TransfersIn re Estate of Atkinson Decedent during his lifetime made deposits in The certificates of deposit are an ineffectual

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a bank. The certificates read, “Walter S. Atkinson, P.O.D. Mrs. Patricia Burgeois.” Are the certificates of deposit considered as part of the estate for computing spousal forced share?

attempt at a testamentary disposition of the deposits involved. There was no present interest of any kind created in the decedent’s daughters by the language used in the certificates.

Estate of Hillowitz Abraham Hillowitz was the partner in an investment club. He executed a partnership interest with the club and named his wife the beneficiary of the interest at his death.A partnership agreement that provides for a payment of the partner’s interest to a beneficiary upon his death is valid even though it does not comply with the statue of wills. Partnerships are third party beneficiary contracts. They are similar to other instruments that are contractual in nature but need not conform to the statute of wills to dispose of gifts at death. Examples of such agreements include (1) a contract to make a will, (2) an inter vivos trust in which the settler reserves a life estate, and (3) an in insurance policy.

Section C. Will Substitutes and the Subsidiary Law of Wills1. Introduction

2. Revocable TrustsIn re Estate and Trust of Pilafas

Pilafas executed a will and trust that were not found among his personal effects at his death. The trial court held that Pilafas had revoked his will and trust.A will is presumably revoked if it was in the testator’s possession, but not found among his personal effects at his death. If a settlor reserves the power to revoke a trust in a particular manner and under certain circumstances, he may only revoke the trust in the stated manner and under the same circumstances as stated in the trust. The settlor reserved the right to revoke the trust by delivering a written revocation to the trustee so he could only revoke the trust in that manner. Though there may be a trend in the law to apply the law of wills to revocable trusts, those cases involved trusts that operate only after the settlor’s death.

State Street Bank and Trust Co. v. Reiser

Dunnebrier created an intervivos trust and reserved the power to amend or revoke the trust, and the right during his lifetime to direct the disposition of principal and income. Dunnebrier subsequently applied for and received a loan from State Street Bank for $75,000. At Dunnebrier’s death, the loan had not been paid and State Street Bank sought to reach the assets of the trust.

Creditors may reach a deceased debtor’s trust income if he created a trust during his lifetime and reserved the right to amend and revoke, or to direct disposition of principal and income. The creditors may recover an amount that is not satisfied by the estate, and not greater than that which the settlor could have used for his own benefit during his lifetime. It violates public policy for an individual to have an estate to live on but not an estate to pay his debts with.

3. Life InsuranceCook v. Equitable Life Assurance Society

Douglas Cook named the appellant, Doris Cook, the beneficiary of his life insurance policy. When he divorced, he executed a will leaving his insurance policy benefits to his new wife. However Cook failed to notify the insurance holder that he wanted to change the beneficiary of his policy.

Beneficiaries of a life insurance policy may not be changed by a will if the policy contract provides a specific method for changing beneficiaries. A testator must comply with the rules of the insurance policy to effect a change of beneficiary. Strict compliance with insurance policy requirements is necessary to change a beneficiary under the policy. The insurer, the insured, and beneficiary should be able to rely on the certainty that policy provisions relating to the naming and changing of beneficiaries will control.

4. Pension and Retirement AccountsERISA—Egelhoff v. Egelhoff Egelhoff named the petitioner, his wife, beneficiary of his life insurance policy and pension plan that

he received while working at Boeing. Both the life insurance policy and the pension plan were governed by the federal Employment Retirement Income Security Act (ERISA). Later the couple divorced and Egelhoff’s children from a prior marriage claimed that a state law revoked the petitioner’s interest to the insurance policy and pension plan.ERISA shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan covered by ERISA. A state law relates to an ERISA plan if it has a connection with or reference to such a plan. The federal Employee Retirement Income Security act preempts a state statute that revokes the payment of a non-probate asset to a former spouse because the statute interferes with the statutes goal to administer a nationally uniform plan. The ERISA statute commands that a plan shall, “specify the basis on which payments are made to and from the plan.” If administrators are forced to act in accordance with the state statute, they will have to comply with the

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varying statutes of all 50 states and wait on litigation before processing a payment. This delay conflicts with the legislature’s goal of minimizing the administrative and financial burdens placed on beneficiaries.

Federal common law may allow slayer and divorce statutes.5. Multiple-Party Bank and Brokerage AccountsVarela v. Bernachea D adds P to CMA account with right of

survivorship. D suffers heart attack and daughter bar P from hospital and apartment. P withdraws 280,000 from account, D demands a return.

When a joint bank account is established with the funds of one person, a gift of the funds is promised. This presumption may be rebutted only by clear and convincing evidence to the contrary.

Section D. Pour-Over Wills and Revocable Trusts in Modern Estate Planning1. Introduction

2. Norman Dacey and Avoiding Probate

3. Consequences During Life of Settlor

4. Consequences at Death of Settlor: Avoidance of Probate

5. Pour-Over Wills

Clymer v. Mayo Whether unfunded trusts that are intended to be funded by a pour-over will are valid?Whether a statute that revokes a former spouse’s gift and powers under a will can also be applied to that former spouse’s interests under a trust if the will and trust are a part of one testamentary scheme?

Under statutory law, unfunded trusts that are intended to be funded by a pour-over will are valid if the trust agreement is executed before the testator’s death. If a spouse remarries, any interests a former spouse may have under a will are revoked. This will statute revoking interests of a former spouse applies to a revocable pour-over trust where considering the time and manner in which the trust was created and funded, the decedent’s will and trust were integrally related components of one testamentary scheme.

Section E. Joint Tenancies in Realty

Section F. Planning for Incapacity1. The Durable Power of AttorneyIn re Estate of Kurrelmeyer T made wife durable power of attorney. Wife

created a trust.It is not a per se public policy violation for attorney-in-fact of a durable power of attorney to create a trust and name herself as trustee but self gifting is a breach of fiduciary duty of LOYALTY; Result will turn on if there are benefits to the trust other than self-gifting.

The majority view is that an agent acting under a power of attorney cannot make amend or revoke the principal’s will, but the agent may create, modify, or revoke a trust if the power to do so is expressly granted in the POA instrument.2. Directives Regarding Health Care and Disposition of the Bodya. Advance Directives: Living Wills, Health Care Proxies, and Hybrids

Bush v. Schiavo Theresa Schiavo lived in a vegetative state for over ten years due to a cardiac arrest. After about eight years, her husband, the respondent, Michael Schiavo, petitioned the guardianship court to authorize the termination of the life-prolonging procedures. The court granted his request and the nutrition and hydration tube that had been prolonging Shiva’s life was removed. Six days later, the Florida legislature enacted a statute enabling the Governor to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient if the patient had no advance directive, the court the patient to be in a persistent vegetative state, the patient has had nutrition and hydration withheld, and a member of that patient’s family has challenged the withholding of nutrition and hydration.When a final judgment is issued in a court of law, and all post-judgment procedures are followed, the Legislature does not have the authority to pass a law that allows the executive branch to interfere with a final judicial determination in a case. Furthermore, a statute may not delegate legislative power to the Governor.

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b. Disposition of the Body

Chapter 7. Restrictions on the Poser of Disposition: Protection of the Spouse and ChildrenSection A. Rights of the Surviving Spouse1. Introduction to Marital Property Systems

2. Rights of Surviving Spouse to Support

a. Social Security

b. Employee Pension Plans

c. Homestead

d. Personal Property Set-Aside

e. Family Allowance

f. Dower and Curtesy

3. Rights of Surviving Spouse to a Share of Decedent’s Property

a. The Elective Share and Its Rationale

b. Same-Sex Marriage and Domestic Partners

c. Incompetent Surviving SpouseIn re Estate of Cross Cross, the surviving spouse of Carroll R.

Cross, lived in a nursing home paid by Medicaid. Cross suffered from Alzheimer’s disease. Because of her lack of mental competency, she could not elect to take her intestate share against her late husband’s will. As a result of the election, she would receive $25,000 and half of his net estate which was $9,000. A statue allowed Courts to elect for a surviving spouse to take if the surviving spouse was disabled. The Court made the election and Cross’s son appealed.

Taking against the will is necessary for a surviving spouse under a statute that provides for a court to make an election on behalf of the surviving spouse to take against the will if it finds, after taking into consideration the other available resources and the age, probably life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the disabled surviving spouse, that the election to take under the will is necessary to provide adequate support for the surviving spouse during his life expectancy. The trial judge acted in the best interests of the surviving spouse. Even though Medicaid paid for her nursing care, she was required to make herself available to all income to remain eligible for Medicaid.

d. Property Subject to Elective Share

(1) Judicial responsesSullivan v. Burkin Sullivan executed a will and created an

intervivos trust of all of his real property. He specifically failed to make a provision to the appellant, his wife Mary Sullivan, or his grandson, Mark Sullivan in the trust or the will. The appellant sought a determination that the trust property be included as a part of his estate.

A trust with a remainder interest is not an invalid testamentary disposition just because the settlor during his lifetime, retained broad power to modify or revoke the trust, receive income, and invade the principal. The fact that the settlor is also the trustee does not invalidate the trust. A surviving spouse has no right to an intervivos trust even if it is established to defeat the wife’s election. A husband has the right to sell any property during her life without the knowledge of his wife.

NEW RULE FOR CASES AFTER SULLIVAN: Assets of and inter vivos trust created during the marriage by a deceased spouse over which he or she alone had a general power of appointment, exercisable by deed or will are now part of the spousal election statute.Bongaards v. Millen Jean Bongaards’ mother created a trust and A surviving spouse may not invade a deceased’s

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made her the life tenant. When Bongaards died, her husband petitioned the court that the trust property be included in his wife’s estate.

spouse’s trust and take their elective share if the trust was created by a third party. A third party has no obligation to support someone else’s property. Property owned by a third party has never been a part of someone else’s spouse’s elective share “estate.”

(2) Statutory schemes

(3) The Uniform Probate Code

e. Must the Surviving Spouse Accept a Life Estate?

f. Waiver

Reece v. Elliott P argues that she did not enter into the pre-nup with full knowledge of the value of the deceased’s assets, because there was no value disclosed regarding stock.

Where the proponent of the pre-nup makes a fair disclosure, even if its not 100% exhaustive, and the spouse had the opportunity to ask questions and discover the extent of the other’s holdings but failed to do so due to lack of interest, then the agreement has been held valid.

4. Rights of Surviving Spouse in Community Property

a. Basic Information

b. Putting the Survivor to an Election

5. Migrating Couples and Multistate Property Holdings

a. Moving from a Separate Property State to a Community Property State

b. Moving from a Community Property State to a Separate Property State

6. Spouse omitted from Premarital WillIn re Estate of Prestie Under NV law, an amendment to a living trust which provides for a spouse is not sufficient to rebut

the presumption of revocation of a pre-marital will after marriage. Only 3 ways to rebut presumption: (1) a provision in the WILL providing for the spouse, (2) a provision in the will expressing intent not to provide for spouse, or (3) a marriage contract.

Section B. Rights of Descendants Omitted from the Will

1. Protection from intentional Omission

a. The Domestic Approach

b. A Look Abroad: Family Maintenance StatutesLambeff v. Farmers Co-operative Executives and Trustees Ltd.

George Lambeff executed a will that did not include a provision for the plaintiff, his daughter from a previous marriage. The plaintiff seeks a provision from Lambeff’s estate under a statute that distributes a deceased’s estate to certain family members who were financially supported by their relative in his or her will or through intestacy.

Because the evidence showed that the deceased did not provide for his daughter for half of her childhood, the court believed that she was entitled to support, even though she did not necessarily need the support. It is enough that her life would have been better and a father is responsible for helping his child to succeed in life.

2. Protection from Unintentional OmissionGray v. Gray Pre-marital will leaves all the estate to the

wife, but it is revoked by the subsequent divorce. Omitted son seeks a share of father’s estate under an Alabama Statute that gives omitted children the equivalent of an intestate

Court sticks to the statute and holds that son is not entitled to receive an intestate share under the statute b/c the will devised substantially all of decedent’s estate to the mother. The court does a completely mechanical analysis- when the will was

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share unless, (1) the omission was intentional, (2) when the will was devised the T had one or more children and devised substantially all his estate to the other parent; or (3) the testator provided for the child by transfer outside the will and intent that this transfer be in lie of the will is proven

executed, the testator had one or more children, and the majority of the estate is left to the child’s other parent.

Kidwell v. Rhew Decedent established a revocable inter vivos trust naming Rhew as successor upon her death. Decedent subsequently died intestate and Kidwell argued that the Arkansas pretermitted heir statute should apply to the trust so that she could collect an intestate share of the estate.

Court holds that Kidwell has no claim because the pretermitted heir statute speaks only in terms of wills and not trusts.

Chapter 8. Trusts: Introduction and Creation

Section A. Introduction

1. Background

2. The Parties to a Trust

a. The Settlor

b. The Trustee

c. The Beneficiaries

3. Commercial Uses of the Trust

Section B. Creation of a Trust

1. Intent to Create a TrustLux v. Lux Lux died testate devising the residue of her estate to her grandchildren. In the residuary clause of the

will, the testator stated that her estate “shall be maintained for the benefit of said grandchildren and shall not be sold until the youngest of said grandchildren has reached twenty-one years of age.” The Court determined whether the language in the will created a testamentary trust.A testamentary trust does not have to be created using the words “trust” or “trustee.” A testamentary trust exists where the testator intends to create a trust based upon the language used in disposing the gift, the nature of the gift, and the characteristics of the beneficiaries. The testator created a trust based upon the language of the residuary clause using the phrases, “shall be maintained” and “shall not be sold” when viewed with the overall clause. Both of the phrases strongly indicate the testator’s intent that the property be retained and managed for a lengthy amount of time for the benefit of her son’s children. The nature of the gift, the remainder of the testator’s estate, was quite large. It appears that the testator wanted the property to be held and managed by another adult until the children became fully grown and able to handle the property themselves.

Jimenez v. Lee The plaintiff, Betsy Lee, claims an interest to money that was given to the defendant, her father for her educational needs. Whether a trust exists where the specific term “in trust” is not used to transfer the property?A trust exists here even though the specific term “in trust” was not used to transfer the property. It is sufficient that the defendant testified that he received property for the benefit of his own children and he admitted in a letter that he wrote to the owner that he held property in trust for his children. Even though the defendant purchased bank stock as the “custodian” for the plaintiff under the Uniform Gift to Minors Act, it was ineffectual to increase the defendant’s powers over the trust property from that of a trustee to a custodian.

The Hebrew University Association v. Nye (1961)

Yahuda announced a gift of her library from herself to the plaintiff at a luncheon in Israel,

An oral declaration of a trust exists where the donor manifests an intention to impose upon

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in her honor. Several notables, the plaintiff, and the president of Israel attended the luncheon. The next day, Yahuda signed a newspaper release that indicated she had given the library to the plaintiff. Later she refused several offers for the library explaining that it did not belong to her, only to the plaintiff. Yahuda began arranging and cataloging the material in the library for shipment to Israel.

herself enforceable duties of a trust nature. It is not enough that a donor express intent to be a donor. The donor did not create a trust by announcing a gift to the plaintiff. The declaration did not show that she intended to act as a trustee. An oral declaration of trust does not exist if the donor does not manifest intent to impose upon himself enforceable duties of a trust nature, but only shows intent to be a donor.

The Hebrew University Association v. Nye (1966)

Whether a valid inter vivos gift exists where the donor places the means of obtaining possession of the contemplated gift in the donee’s hands, and orally announces a gift to the donor, even though the gift itself has not been physically transferred?

A gift was constructively delivered because the donor placed a memorandum of the list of the contents of the library and all important books, documents and incunabula and orally declared a gift to the donee at the luncheon. Even though the gift was not formal, the circumstances in which the gift was made serve the purpose of formal gift requirements.

2. Necessity of Trust PropertyUnthank v. Rippstein C.P. Craft handwrote a promise to make

monthly payments to the appellee, Iva Rippstein, for the next five years if he lived that long. Later, Craft added an amendment to the letter stating that he was binding his estate to the monthly payments and struck out the phrase, “provided that I live that long.”

A donor does not create a trust by promising to make monthly payments in the future. Craft wrote that he bound his estate to a promise to make monthly payments and excluded the clause stating “provided I live that long.” However this language does not suggest that the donor intended to be a trustee over the payments. His intent was to bind his estate to such payments but not to create a trust. To prove a trust, the facts must show that the donor intended to act as a trustee or have the property managed by a trustee, not just a sincere desire to make a gift.

Brainard v. Commissioner Brainard orally declared a gift in trust to his mother, wife, and two children. The property from the trust was to be funded from the future profit of a stock trade. The Supreme Court of Texas determined whether the trust existed in the year of the declaration, or the year the profit was made.

Where there is no trust res at the time of the declaration of a trust, a trust does not exist until the time that the settlor manifests anew his intent to create a trust when the res comes into being. The 1927 declaration did not crate a valid trust over the future 1928 profits. The settlor must report the profits on his 1928 income tax return because the profits accrued to Brainard before he transferred the trust. A trust did not arise until 1928 when the settlor manifested anew his intent to create a trust when he documented in his books that the profit from the stock trade in 1928.

Speelman v. Pascal Gabriel Pascal wrote, signed, and delivered a document to the plaintiff, Miss Kingman, promising to pay her a certain percentage of profits from the stage production and movie based on the Pygmalion Musical stage. The stage production did not appear until after Pascal’s death.

The subject of a valid gift does not have to be in present physical existence and in the possession of the donor but a document purporting to make such a transfer must express intent to make an irrevocable present transfer. The gift to the plaintiff is valid because the letter shows intent to make an irrevocable present transfer. The donor did not need to make any further steps to make the gift effective.

3. Necessity of Trust BeneficiariesClark v. Campbell A settlor created a trust of personal property

for the benefit of his friends. The settlor directed the trustee to select those friends whom he or she should be aware of by reason of his familiarity with the trustee. Whether a document creates a private trust if the only beneficiaries identified are the “settlor’s

The document does not create a private trust because it does not clearly identify the identity of the testator’s friends. The settlor states that the trustee will know which persons are the settlor’s friends; however this is not a sufficient description of a class of persons. The term “friends” is broad and can include persons related by kinship or

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friends”? marriage or strangers in blood. The document fails as a private trust because the description of the beneficiaries gives the trustee wide discretion in choosing the beneficiaries.

In re Searight’s Estate In his will, George P. Searight left his dog Trixie to Florence Hand of Wooster, Ohio. Searight directed his executor to place $1,000 in a savings and loan association for Hand to use 75 cents per day for the care of Trixie. The court determines the validity of the gift of the dog and the effect of the rule against perpetuities on the gift.

A valid honorary trust may exist where the donor gives another a dog for the purpose of caring for the dog. A bequest does not violate the rule against perpetuities where the donor sets a portion of a limited amount of money to be used every day that amounts to a time that does not exceed the limit under the rule. A gift of a dog is a proper honorary trust because the donor expressed a desire that the beneficiary care for the dog and the beneficiary is willing to carry out the testator’s wishes.

4. Necessity of a Written Insrument

a. Oral Trusts for Disposition at DeathIn re Estate of Fournier T asked some friends to “hold some money for

him,” they agreed and he delivered two boxes of $200K each. He asked them to keep it secret then deliver to his sister Faustina, but still told the other sister. T dies and Faustina petitioned the court saying T made an oral trust Ct denied and she appeals

Need not be in writing, but must have clear and convincing evidence. Ct. held that there was clear and convincing evidence although there was evidence otherwise also.

Olliffe v. Wells Ellen Donovan created a will leaving her residuary estate to the defendant, Rev. Eleazer M.P. Wells to distribute for a charitable purpose that she expressed to him before and after the execution of her will.

A trust that is not sufficiently declared on its face to be a trust cannot be used to defeat the rights of heirs at law by extrinsic evidence of a trust. Extrinsic evidence may not be admitted to show that the testator intended to create a trust because it would defeat the rights of the heirs at law. The document must have been expressed in the form that the law makes essential to every testamentary disposition in order to defeat the rights of the heirs at law. The defendant holds the property in a resulting trust for the testator’s heirs at law.

b. Oral Inter Vivos Trusts of Land

Chapter 9. Rights to Distributions from the Trust Fund

Section A. Rights of the Beneficiary to DistributionsMarsman v. Nasca Sara Wirt Marsman created a testamentary

trust that provided that the trustee make payments from the residue of her estate for the maintenance, comfort and support of the plaintiff, T.Fred Marsman. For several years while Marsman struggled financially, the trustee only made a payment of $300 from the trust that was valued at $65,000.

A trustee that holds discretionary power to pay principal for the “comfortable support and maintenance” of a beneficiary, has a duty to inquire into the financial resources of that beneficiary to ascertain his needs. A trustee that is given discretionary power to pay the principal for the beneficiary’s support and maintenance must inquire into the financial resources of the beneficiary.

Section B. rights of the Beneficiary’s Creditors

1. Discretionary Trusts

2. Spendthrift TrustsScheffel v. Krueger The prevailing plaintiff in a civil sexual assault

suit sought to attach the defendant’s interest in a support trust to satisfy his judgment of $551,286.25.

A statute that bars creditors from claiming an interest to a beneficiary’s trust does not make an exception for tort creditors. Where the legislature has made specific exemptions, the law must

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presume that no other exceptions were intended.Shelley v. Shelley A former spouse and a son of a beneficiary of

a trust sought to attach his interest in the trust to satisfy his alimony and child support obligations.

A spendthrift provision does not bar the claims of a beneficiary’s children and former spouse for child support and alimony in regards to the income of a trust. However such claims are barred in regards to discretionary payments from the trust corpus. Trusts may not be created to allow a beneficiary to enjoy benefits and place the responsibility of caring for his child and former spouse on the community.

3. Self-Settled Asset Protection TrustsFederal Trade Commission v. Affordable Media, LLC

The defendants, Denyse and Michael Anderson, were the trustees of an asset protection trust in the Cook Islands. The United States District Court issued a temporary restraining order to have the funds transferred to the United States for the purpose of a trial where the defendants were charged with fraud.

A party petitioning for an adjudication that another party is in civil contempt does not have the burden of showing that the other party has the capacity to comply with the court’s order, but the party asserting the impossibility defense must show categorically and in detail why he is unable to comply. There is a high burden on the defendant to prove impossibility as a defense to a contempt charge. The defendants were protectors of the trust and could have forced the trustees to turn over the proceeds.

In re Lawrence Stephan Jay Lawrence created and funded an offshore asset protection trust in Mauritius with $7 million dollars. After Lawrence lost a securities law arbitration proceeding, he was punished with a $20.4 million judgment against him. Lawrence filed for bankruptcy and the court ordered him to turn over the bankruptcy trustee assets held in the offshore trust.

Impossibility is not a defense in contempt proceedings where the person charged with contempt is responsible for the inability to comply. Lawrence is responsible for his inability to comply because even though he was removed as a beneficiary as a result of his bankruptcy filing, he still retained the authority to appoint trustees who could have exercised the authority to reinstate Lawrence as a beneficiary.

Section C. Modification and Termination of Trusts

1. Introduction

2. Deviation and Changed CircumstancesIn re Trust of Stuchell The petitioner, one of the surviving life-income

beneficiaries of a trust, sought to modify the trust in regards to another one of the beneficiaries who was mentally handicapped.

A court will not permit or direct the trustee to deviate from the terms of the trust merely because such deviation would be more advantageous to the beneficiaries than a compliance with such direction.

In re Riddell Action to modify a trust and create a special needs trust on behalf of a trust beneficiary who suffers from bipolar and schizophrenic disorder. The daughter is the grandchild of the settlor, and lives in a hospital and not expected to live independently. By the trust’s terms, the daughter will receive over one million dollars once her parents die. Petitioner’s argument is that a special needs trust is necessary because, upon death of the parents, the money will be seized by the state to pay for the bills, or, it will be lost by mismanagement because the daughter is handicapped.

The court may modify a trust if there are circumstances not anticipated by the settlor, and, the modification and deviation will further the purposes of the trust. The special needs trust is allowed under federal law, and, it is a third party special needs trust whereby the amount owed to the state must be determined. Congress specifically passed a law permitting the creation of special needs trusts for disabled persons to continue to receive governmental assistance for their medical care. Since congress is clearly encouraging this, the trial court should not have been concerned with this. When determining whether a trust should be modified to create a “special needs” trust, the proper focus should be on the settlors’ intent, the

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changed circumstances and what is equitable for these beneficiaries.

3. Clafin and Material PurposeIn re Estate of Brown Andrew J. Brown created a trust to pay for the

education of his nephew’s children and thereafter, to support the lifestyle of his nephew and his wife so that they could live a life in the style and manner as they wish for the remainder of their lives.

An active trust may not be terminated, even with the consent of all the beneficiaries, if a material purpose of the settlor remains to be accomplished. The material purpose of a trust that provides for the education of a beneficiary’s children ,and then for the beneficiary and his wife to live in a lifestyle to which they were accustomed, is not satisfied after the beneficiary’s child’s education is complete. The settlor did not merely name successive beneficiaries, but expressed intent to provide for the lifelong income of the beneficiaries. Therefore this the second purpose is material

4. Trustee Removal

Davis v. U.S. Bank National Association

Trust set up grandfather for the benefit of his grandson and great-grandchildren. Grandfather and US National Bank Association are named as co-trustees. Grandfather dies. In 2006, grandson seeks to remove USBNA as trustee in favor of US Trust Company. Missouri had adopted the UTC which provides for the removal of a trustee without showing any wrongdoing on the part of trustee so long as several factors are present.

The removal was indeed requested by all qualified beneficiaries (remote remainder beneficiaries were not required to be joined), that removing the trustee best served the interest of the beneficiaries because they live much closer to US and US has a complete understanding of beneficiaries unique financial position, that the removal best serves the trust because it will save close to $11,000 in annual fees, and that UTC was clearly a suitable and willing replacement trustee. Furthermore, replacing the trustee offended no material provision of the trust.

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wills estates and trusts outline and case chart

Documents

inter vivos trust

uniform probate code

national womens party

exert undue influence

violates public policy

tangible personal property

life insurance policy

harmless error rule