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10 January 2006
Hodel v. Irving Justice OConner speaks about 2 different means in which property can be transferred at death: o Devise: Passed to beneficiaries through a will The decedent (testator) makes the decision about where the property is going to die The persons designated to take the property in the will are called devisees/beneficiaries/legatees o Descent: This happens in the absence of a will The state makes the decisions about where the property goes when the person dies. The state will record this in a statute governing intestate succession The people who receive the property by virtue of the statute are called heirs. So, a person who takes property under a will is not an heir. However, often the people who would take under a will are the same as those that would take the property under The Indian Land Consolidation Act of 1983 is a federal statute. This is governed by federal rather than state b/c we are dealing w/ a type of land held by the federal government in trust for the Native American tribes. o Congress did allow state law to govern how the land would be broken up. What was the prob 207 addresses? Fractionation. You end up w/ a single piece of land w/ a lot of owners. Say the original piece of land was given to A. When A died intestate, it passes to B, C, and D. Then when they die, it goes to B1, B2, C1, D1, D2, D3, and D4. It would get just worse and worse. o Does this happen in Athens-Clarke County? No. This fractionation occurs in the Native American land b/c of its context. This is b/c the govt. didnt want the Indians to get cheated out of their land. There are restraints on alienation of the land. o Suppose A lived in Athens. A died intestate and had 3 heirs. How would the problem be solved? The three people will decide that one of them will own it and get paid by the new owner, or the house would be sold and the money would be divided into three ways, etc. What if one of those persons didnt want to sell their share? They could go to court and ask the court to partition the property. Common law England. Would there have been this problem of fractionation under the common law. The rule was one of primogeniture. It would pass to the oldest son first. Thus, there would be only one heir. However, now that we have statutes of intestate succession, it is possible to have the fractionation problem occur. What is the problem w/ fractionation? It is expensive for the government to keep track of the land ownership. The income that is coming in is less than what it is costing the government. What was Congress solution to fractionation? The Indian Land Consolidation Act. o Escheat: It talks about what happens when a person dies w/o a will and no heirs. The property generally escheats to the state. o Here, they are talking about the property escheating to the Indian tribe. They were talking about when the interest is less than 6 acres of the land. The Ps are members of the Indian Tribe. The Ps are the people who would have taken the property if it had not been for 207. What are they arguing? They are not arguing that their property was taken by the government. This is b/c they didnt have any property interests. The property was owned by the decedents. 1

o If you are the expected heir of a piece of property, do you have a legal interest in the property? NO. It is an expectancy, but you dont have a legal right to getting this property. Whose property is the P claiming was taken? It was the decedents. They are bringing this law suit on behalf of the decedents. How would we define this property right that was taken by the decedents? They dont have the right to pass the property down at death. Did the decedents have any other rights that werent affected by 207? They had rights to use the land, sell it w/in the restrictions of the govt, etc. o HYPO: Suppose a piece of the land had not been rented out. Could the owner go out and use the land? YES. The ct. brings in a serious of cases on regulatory takings. The first thing that the court looks at is the economic impact of the governments actions? o See p. 5. o The ct. has already said that the statute didnt take all of the property interests. They still had certain rights to use it during life. So, the right to pass on the property at death must be worth less than $2700. o Is there a way to figure out what the value wasthe value to leave property at death? You could to total value minus life estate. It could be analogized to life insurance. You can pass it on a death, but they have no right to use that property throughout their life. o HYPO: Suppose someone offered you a right that at your death $2700 would pass to whoever you designate. What would you pay? The property rights taken would be worth less than the $2700. Investment backed expectations. What does the court think about whether there are any investment back expectations? The court thinks that there are none b/c this isnt the type of property that people bought this property for investment reasons. People generally get the property by inheritance or devise. The ct. thinks that no one has invested in this property thinking they pass it on to someone else. Average Reciprocity of Advantage. (p. 7) The people who are burdened by this regulation are benefited by it as well. This would count against this being a taking. While the property owners may be burdened that they cant pass the property at death, the tribe as a whole would benefit. The ct. said that it was a taking b/c it abolished completely the descent and device of a particular class of property. See p. 7, last paragraph. It refers to p. 3 as well (Irving Trust Co. v. Day). o Is the holding in Hodel consistent w/ the language in Irving? No o Is there a way to reconcile Holden and Irving Trust? Irving Trust says nothing can forbid a state. o You can reconcile them by saying that Irving Co. abolishes testamentary prohibition and in Hodel they wanted to abolish both testamentary passing and descent passing. Elective Share. They provide protection for a surviving spouse of a decedent. Elective share is only for non-community property states. The surviving spouse of a decedent has an electiontake what is under the will or make a contest against the will to override the will. o Suppose a state had an elective share statute that said that the spouse gets 1/3. The state then changed the law to say that the spouse has to leave the other spouse . Would this fall under Hodel? No. In Hodel, the complete stick in the bundle was taken. Here, they are affected, but they still have the ability to leave the property to others. After Hodel, they could make the property subject to partition or alienable. What could Congress do? o The partition remedy has affected Blacks in the South. You have a similar problem of fractionation of interests. Thus, it is less likely to leave a will. One of the (child) owners of the 2

property may sell property to someone else and then cause a partition to make the rest of the property be sold. o They could give the property to the oldest child. o They could prevent further fractionation on pain of escheat. This means that you cant leave a will leaving the land to more than one person. So, the person would have to leave a will naming one person that they the land to go to. o They could just reimburse the people for the land that escheats to the tribe. Joint Tenancy. There are multiple owners of the property w/ the right of survivorship. Tenancy of Common. There are multiple owners of the property w/ no right of survivorship. o What if Congress said that land will be owned as joint tenancy and you cant will your parcel? That would work over time. o Would that be a taking? You could argue so, but you can also say that those that lose the right at death gain rights when others die. Congress passed a statutory fix (pp. 910). Congress said that you can devise it, but it has to go to another. However, that was held unconstitutional b/c it permits devise only among a very limited group of people. The authors on p. 9 suggest that the same purpose could be accomplished by a revocable trust. o Revocable Trust: You are taking property and saying that I hold the property in trust w/ myself as a lifetime beneficiary and X who will receive it upon my death. o Effective, it does the same thing as a will. o Would this fit under 207? NO. It is would avoid 207. This is b/c it is an inter vivos transfer. So, during your life, you transfer the property and they have an expectancy to the property. That is why it doesnt work for an heir or devisee b/c they dont have an expectancy.

Next Class We Will Debate: Resolution: That the right to transmit property at death, by devise and descent, should be abolished or significantly curtailed. o Negative: We should leave things as is. o Positive: Transmitting property at death should be curtailed.

For Thursday: Read pp. 10 20

12 January 2006
Why do they let people who are dead tell us what to do? Class Debate on That the right to transmit property at death, by devise and descent, should be abolished or significantly curtailed. Against Resolution: o Consistent w/ a promotes family tiesparents to children, children to parents, to love and protect eldersencourages the young to care for the elderly o Promotes and rewards hard-work of decedent o Encourages people to accumulate wealth o Deeply rooted in traditionalways been some form inheritance o Promotes responsibility o Promotes creativity and productivity of decedent o Economic and social disparities cannot be solved by changing the inheritance system 3

The bigger prob isnt the wealth that passes, but the educational transmission b/t generations. Well suppose a kids parents paid for him to go an Ivy League and then he inherits $50 million. He doesnt need the money. o People could give inter vivos gifts to their children to get around inheritance. Thus, the government would have to write a ton of laws to find a way to prevent this. Like if a son works for his parents in a family business and gets paid $5 million. Would that be a gift or salary? o The wealthy will find a way to pass their money on somehow, like offshore accounts, hiding in family business, etc. They could take their money and go elsewhere. o What about heirlooms or the family farm? You dont want them to get caught up. o You dont want people to become artists b/c they know they cant take anything w/ them. o You dont want the govt to get it b/c it is wasteful in its spending. The federal govt wont expend the money any better than private testators. However, you could modify Aschers proposal, to the government will exempt inheritance if you give all the money to charities. So, if you give the money to charity, you are cool. For Resolution: o The Am. philosophy is to work hard and create your own wealth. If no inheritance, there would be increased productivity in society. What about the argument that the ability to leave property behind increases productivity by the decedents? They were productive b/c they wanted to pass it on. o Inheritance can cause distortions in peoples perceptions about life and psychological damage. If you work for your money, you will appreciate it more. o When you have inheritance, the wealthy remain wealthy and the poor continue to be poor. o The less you do to earn your money, the better the case is for taxing it. o We dont want to create an aristocracy. Arent there some advantages to having these private pockets of wealth? Doesnt it disburse power more democratically, such as wealthy people leaving money to a foundation they want to promote, newspapers, candidates for office, etc.? o Parents can see their children reach their goals, so the kids really wont need the inheritance. If the child is like 50 when the parent dies, they will already have their own money. They dont need to be taken care of.

Article: It was about rich people and their attitudes to their children. I think kinds are destroyed by too much wealth, not enhanced by it. -- John Malone Other rich parents feel the same. What do you think about inheritance being bad for heirs? Expectations of the Course T & E is a fascinating subject. It is one branch of property. T & E law address philosophical questions. Who should control the property (old v. new, alive v. dead)? To what extent should someone provide for the obligations of his family, such as nursing homes? The course is mix of the old and the new. Many of the elements of the law are older than this country. On the other hand, the statutes are continually being changed. We will look primarily at the Uniform Probate Code (1990, revised 1993) and Georgia Revised Probate Code (1998). The law is changing in part b/c there have been major changes in society, such as multiple marriages. Now, you have to worry about half-children and step-children. There is also artificial insemination; one could become a father after death. 4

Unless Beck gives us an assignment, be prepared to discuss the next 25 pages. We will cover everything except for pp. 365-387. Exam: Last year, it was 60 multiple choice questions. o We can bring book, handouts, statutory supplement, outline, and calculator.

For Friday: Read pp. 20 40 (stop before Section c)

13 January 2006
Shapira v. Union National Bank Shapira doesnt like the restriction in his fathers will. The restriction is that he has to marry a Jewish girl w/in 7 years of his father dying. Her parents have to be Jewish as well. Why do you think the dad put this restriction in his will? He wants to support the Jewish heritage and wants his blood line to remain Jewish. o There is some concern w/in the Jewish community that if they marry outside of the family, they may lose their Jewish heritage, faith, etc. o It is connected to a desire to promote the interests of the Jewish culture b/c there is a provision tying the money to argument. Davids first Argument: This is an unconstitutional restriction on his right to marry. o The court rejects his argument. The Loving case only applies to the state. Here, the father is trying to put a restriction on him. o Constitutional rights are only restrictions on the power of the govt. Here, it is a prior will, so it is not a govt restriction. There is no state action here that would lead to a violation of the restriction. o How is this case different from Shelly? The ct. isnt asked to issue an order to David telling them who he cant marry. Suppose the ct. came to a different conclusion? (The will was subject to constitutional restrictions.) Are there other types of bequests that might be subject to the same state action? Are there places that people can leave their money in wills where the govt. cant leave the money? If this were a govt. action, where wouldnt the money be able to go? o People can give to a religious organization, but the govt. cant. o Irrational conditions may violate the due process or equal protection clause. o What about a gift that goes to the promotion of womens scholarships or minority scholarships? Yes. There could be a constitutional problem. Davids Second Argument: It should not be enforced b/c it is a public policy matter. o What public policy of the state makes this will problematic? It is a restraint on marriage. o What if the will required David to remain unmarried to get the money? That would be a complete restrain on marriage. You cant do that. o What if the will required the beneficiary to divorce an existing spouse? You cant cuase something detrimental. However, you can provide for him if they get divorced. So, you can provide for a divorce, but you cant cuase a divorce. o What about a partial restraint on marriage, like this one, the beneficiary has to marry w/in a particular religious group? It is okay. Gifts conditioned upon marrying... (p. 33) See footnote 4, p. 24. The authors discuss two PA cases. In one of the cases, there was a bequest in a will to the grandchildren if they remained true to the Catholic religion. The ct. refused to enforce. In 5

the other one, there was a gift that would go to relatives if they were in good standing w/ the Presbyterian church. The ct. said that was permissible. o Courts are unwilling to engage in question of religious doctrine, such as what does it mean to be a faithful Catholic. Whereas if the issue was whether or not a person was in good standing in the church, all you have to do is look at the records. What about the religious implications in this case? You just look to see if the parents and the girl are Jewish. You really dont get into whether or not she is practicing. There can be an issue w/ whether or not someone is Jewish. The law of return in Israel says that if someone is Jewish they can come live there. Davids 3rd Argument: It is hard to uphold this restriction b/c there arent many Jewish girls in the area. o Maddox: Here, the girl had to remain a member of the Quakers. When she married a nonQuaker, they kick you out. There werent a lot of options for her b/c there was only 5 or 6 unmarried males. The ct. held that it was unreasonable for them to kick her out b/c it was too hard for her find an eligible Quaker. o The ct. said that Maddox is different from now. Maddox occurred during the horse and buggy days. Traveling is limited. Now, transportation is much more frequently available. Also, there are enough Jewish girls in the town for him to be okay. o See note 2, p. 27. See footnote 6, p. 25. At the time of the case, there were about 5400 Jewish people in the area. That would suggest that there are about 540 Jewish girls b/t the ages of 15 and 25. If the ct. had that info, is that enough to say that David had a reasonable prospect? No. It really wouldnt change. o What about internet dating services? Would that affect the analysis? It would make it more likely that they would uphold the provision. It gives you a broader number of prospects. There have been wills that put restrictions on the beneficiaries, such as the beneficiary has to be submitted to a drug test each month. What do you think about testators telling the beneficiaries what they should and should not do? o The beneficiary doesnt really get much of a choice. It should be limited. o Could a parent during his life make a decision that would influence the behavior of the children? Yes. That is parenting. What if it were other requirements that werent as controversial, like you get more money if you graduate from college? What about the problem mentioned on pp. 26 27? You are in a different situation when you are comparing the live and the dead parent. o If the father said that I will cut you out of the will if you dont marry a Jewish girl, he has some chance of influencing his father to change. o However, if the father is dead, there is no way that it can adapt to the changing circumstances. A will is final. The end result may be far different from what the decedent intended. The will may apply in certain circumstances that you didnt expect when writing the will. See p. 27, note 5. o Would that be an interference w/ family relationship? If the husband doesnt care one way or the other, it would okay. What about the requirement that you name the first child after me to get the money? That would be an issue. See p. 28, problem 6(a). Can you order the destruction of a house you owned to prevent anyone from living in it? o That could be economic waste, so they court wouldnt allow it. However, you could destroy your house while you are alive; why cant you do it when you are dead? 6

o What is the reasoning? When you are dead, you can do anything to deal w/ the consequences of their actions. When you are dead and leave instructions in a will, the decedent will not have to deal w/ the consequences the family and society will have to. What about an author saying destroy my unfinished works? Should executors fulfill those sorts of requests? o There could be a distinction b/t literally and photographic works AND conference notes of the Justice. One problem is whether the notes are owned personally or by the government. o If it is Justice Blacks property, should be able to destroy it, even though it has historical value? Yes. o If the private papers of the Justices are released, what relationship will it have on the current court? So, people in the ct. now may change the way they think and act b/c they dont want the info to come out after they die. See p. 30, subsection (b). Probate v. Nonprobate property. Probate property passes through the decedents will. Nonprobate property is property that passes at death not through the will or by inheritance, such as things that passes b/c of contracts, survivorship, etc. Who is the personal representative/executor? It is the person who is administering the estate through the probate court. Could you have a will and not an executor? Yes. If you name the personal representative/executor in the will, then that person does it. What are the functions of a personal representative? Managing the assets that go through the probate court, make sure creditors get their money, make sure titles pass through correctly, distribute assets of the will Devise v. Bequest o Devise is real property. Devisee is the name of the person who takes real property. o Bequest is personal property. Legatee is the name of the person who gets the personal property. The person who gets the property through intestate is an heir. An heir can be different from a next of kin; but today, we consider them the same. The probate proceeding is designed to do things for creditors. It makes sure that creditors are able to receive the amount they are due before the beneficiaries get the property. It gives them a forum to assert their claims and gets them paid off. o What if the creditor doesnt assert his claim in a timely fashion? The claim will be loss. There will be a non-claim statute that will bar claims of the creditors that are not asserted quickly enough. (pp. 35 36) o What rule did the S. Ct. give us about due process before you bar the claim? The creditor has to receive actual notice before they are barred forever. Back in the day, the executor would run an ad in the newspaper. What does the probate process do for those that are to receive the property? o Common Form. Becomes executor first and then sends out notice; there are fewer hoops to jump through; however, someone can come back later and challenge what the executor did o _______ Form. You send notice of the proceeding and then become executor. This is more binding. o Suppose there was a piece of real property in the name of the decedent. The probate process provides proof to the taker that they are the owner of the property rather than the decedent. Ancillary Probate Proceeding. The probate process is in another jurisdiction. If it is in another state, you have to go through that jurisdiction to get title changed. 7

o If you have real property in another jurisdiction, you may need to have ancillary proceedings there to make sure proof of title is in the local records. It also lets other creditors know in that area where the real property is located to assert their claims as well. Problem 1 (pp. 38 39) Should Mrs. Green probate the will? Yes b/c one of the assets is the car. Think about what functions a probate proceeding serve and are those functions impt here. o One thing it does is for the executor to collect the assets owned by the decedent. Checking Account: It is a joint checking account; she doesnt need help from the court to get it. Furniture: She doesnt need any help from the court to get it. Government Bonds: She doesnt need any help from the court to get it. Life Insurance: She doesnt need any help from the court to get it. That is contract. How does she get the life insurance proceeds? The insurance co. will permit you to prove the death of the insured. If you provide the proof, you get the money. Pension Plan: She doesnt need any help from the court to get it. Savings Account (soley in his name): She might need help w/ that. However, most states will have a statute that will allow her to get it w/o going through probate. o The probate process is good b/c it will set a time for when the creditors claims can be barred. There are some debts to pay off. She doesnt need to start a probate proceeding to do that. She can just write the checks to the creditors. What about the advantages of a non-claims statute? Should she do it to bar the other creditors? She doesnt need to take advantage of the non-claims statute. If the debts are really high, then it would be go to the probate b/c it will help protect the surviving spouse. But she doesnt have to worry about it. o Should she be concerned about estate taxes? Estate taxes dont kick in until you have a bunch of money. o Probate also gives proof of title. Does she need the proof of title that the probate proceeding can provide? She would only need it for the car b/c if she ever wanted to sell it and it was in his name. Problem 2 Is there reason to go through a probate if there is going to be intestate succession? o Maybe to resolve any disputes b/t her and the children. o Do you need to go through probate to decide who gets what? It is not money, so you cant take half of the furniture, car, etc. o It is possible to work it out informally. If you can do that, then you dont have to go through the probate court. What if the sons were minors? Does that create another problem? o If they are minors, they have a legal right to inherit the estate. They would be too young to disclaim their inheritance. o Is that a reason she would need to go through the probate process? No b/c she could set up a trust. Does Mrs. Green undertake a risk if she decides not to go through probate when she has minor children? o There is a possibility that when they turn 18 they could sue her b/c they didnt take care of their property. However, that is a risk most parents would take. 8

Problem 3 Here, you have the issue to getting title of real estate into the wifes name. Problem 4 Would you advise him to have a will? Yes.

For Tuesday: Read pp. 40 62, we will start w/ Problem 4

17 January 2006
Problem 4 (pp. 38-39) Does he really need a will? o Is it possible to have a will, even if it ultimately turns out it wasnt needed? Yes. o In this situation, if there had been no will, how would his rights to his estate be determine? You would look to the intestacy statute in his state. The intestate succession statute would not leave all the property to his wife. Thus, if he didnt have a will, his sons would have a legal entitlement to the estate. o Does he want to leave his wife in the position in which she has to depend upon the goodwill of her sons? NO What other reasons would you advise someone to get a will? o One thing that you are dealing w/ as an atty is that there might be changes after he writes a will. You could have a divorce, another child, etc. (significant change in the family structure). If you have a minor child, a will would allow for the parent to choose guardianship. o What else could a will help you deal with? There could be a significant asset that he obtains. At the time that he comes to you, there may be no assets that cause problems, but he may get some land, later. o What if his wife dies before him? What problems could arise if his wife dies first? He needs to choose who he wants to administer the estate, etc. o If his wife died first, notice that some of the assets on which she wouldnt have to offer to probate, would now have to be probated. o What if one of his sons predeceases him and that son has children? You want to worry about what would happen to that property if it passed to a minor. It is best not to tell someone that they dont need a will. It is best to walk through the difference scenarios w/ them. There is an estate planning problem starting on p. 40. Questions are asked about it on p. 43. They point us to the just debts clause. o Suppose that he did not have that clause in the will. Would his debts get paid anyway? Yes. o Technically, you dont need the just debts clause; but you commonly see one in a while. o Does the just debts clause require the executor to pay off the mortgage on their home? You have to see whether it is practical to pay the mortgage. o Courts have interpreted these just debt clauses in different ways. Is that a desirable thing? Does he want his executor to pay off the mortgage in administering the estate? Maybe/maybe not. o Why might he not want the mortgage to get paid off? He may not have enough money to pay it off. He might have had to sell other assets to pay it off. There is a state law background rule on exoneration of lien. Sometimes the state will requirement payment of the mortgage, sometimes not. 9

o Where would the funds come from to pay off the mortgage? The remainder of the estate. There are laws in the different jurisdictions telling you what property to sell to pay off the mortgage. In most states, you take from the residue of the estate. o If the residuary devisee is different from the person getting the house, the residuary devisee will end up getting less and the person receiving the house will get more. Now, if they are one of the same, it might be better to allow that person to make the decision. Would the just debts clause apply to payment of taxes? Would it require taxes to be paid out of the residue of the estate? Maybe/maybe not o The cases they cite reach different results. It is unpredictable depending on the jurisdiction you are in. o Is it a good idea for taxes to be paid out of the residue? Not if you are the person to receive the residue. o There is a clause that says if you have to pay estate taxes, it tells you where to get the money from. One of the places from which you get the money to pay off the estate taxes is the life insurance policy. However, if you have a just debts clause, it may go to the residue. What was provided in the will w/ respect to executor of the estate? His wife was to be the executor. She doesnt have to give bond or security. o Has a suitable appointment for an executor been made if she dies before him? It doesnt say. It would be good for them to do so. You dont want the court to decide who the executor will be. Does she have enough powers as executor to administer the estate effectively? Is it a good idea to let her sell property w/o going to court? Yes. There can be cumbersome procedures to sell the property if you have to go through the court. o However, there may be some things that would make the process easier. Is the dispositive plan by Howard a sound one? It goes to his wife; and if she predeceases him, then it will all go to the children. o The plan doesnt say what children get what. What about the possibility mentioned that they could both be injured in a car accident and the wife survives him by only a few hours? Yes, that is a problem. You should have a survivorship clause. Most people want to avoid probate b/c it is complicated and expensive. You would want to avoid a double probate if you could? You dont want it probated b/c the husband died; and then probated again b/c the wife died a few hours later. Which of the assets listed in the letter will be governed by the will and which will pass outside of the will? o Governed by the Will/Pass Through Probate: o Pass outside of the Will: Life insurance Do you really know from the letter, which assets will go through probate and which ones wont? You will have to know the contract and the titles. You need to get more info to figure out what is best for someone. o The most economically significant assets dont pass through probate. (Looking at the additional information.) Guardianship/Article Six: Is it desirable? No. It will not go according to the way he wants it. o Guardianship arrangements can be very cumbersome. So, often, you can come up w/ a more flexible arrangement if you think about it ahead of time and not leave it to the default rule.

Simpson v. Calivas This is a malpractice suit. 10

One of the beneficiaries of will is suing the atty. The beneficiary is arguing that atty did not specify the way the land was supposed to be left. There was negligence in drafting the will. There was some ambiguous language in the will w/ regard to the homestead. It wasnt clear whether homestead referred to just the house or to the house and the entire 100 acres. The son argued that the father intended only to leave the house and not entire surrounding land. Was there evidence that he intended only to leave her the house? The notes taken by the atty point in the direction of confirming the Ps claim. Was the malpractice act filed in a probate court? NO. You cannot file a malpractice action in a probate court. It was filed in a Superior Court. o Generally, probate courts are courts of limited jurisdiction. They are in Superior Court. What the Superior court do w/ respect to the malpractice claim? The Superior Court rejected the malpractice claim on two grounds: (1) there was no evidence of breach of duty b/c the beneficiary didnt have any contract w/ the attorney and (2) collateral estoppel claimthe issue had been decided at the probate court so the P cannot relitigate it at Superior Courtyou cannot find a contrary finding in a subsequent proceeding The appellate court found that the attorney did breach his duty of care. What claims would the P have? o Negligence o Breach of contract claim pursued on a third party beneficiary Sometimes we will allow someone to enforce a contract even if they are only an intended beneficiary of the contract Do other jurisdictions allow malpractice claims by those not in privity of the contract? Yes. Other jurisdictions also allow legal malpractice claims by those not clients of the atty. o There are still a small number that require privity. What is the argument against privity of contract? o The main reason is b/c there is a clearly foreseeable harm. o It should be clear to the atty that what he does here could harm a beneficiary; and that should be enough for the atty to take that into account. Is there anything to be said in favor of privity? You dont want to have a bunch of claims against the lawyer. Could it affect how an atty represents a client if they know that they could potentially be liable to people other than the client? It could distract the atty from the clients interest. The D argues that even if you recognize a malpractice claim, it should be allowed only in limited circumstances. o He would have it limited to cases where the atty failed to carry out an intention of the testator that is found on the will itself. o What would be the argument? What types of malpractice claims would that permit. If you try to leave something to someone and it violates the rule against perpetuities, that could be the case. o What would be the policy argument that it is only those whose intentions are on the face of the will? The will was seen by them and why did they not talk then. B/c the person is dead, you cant decide the issue. Why doesnt the ct. decide on this issue? See p. 51 Collateral Estoppel Argument: The probate court and the superior court have two different functions. o One of the requirements for collateral estoppel is that the same issue was addressed at two different proceedings. However, that is not the case. In the superior court, they were looking at actual intent. In the probate court, they were deciding intent. 11

What are some ways that attys can get in trouble in drafting wills? o Ambiguous language o If the will was not properly executed (not enough witnesses, the wrong people were witnesses, etc.) o Rule against perpetuities o Estate Taxes: What if the person is potentially liable for estate taxes that they could have been avoided? o Self-Dealing: You write the will for your benefit as an atty rather than for the benefit of the testator or beneficiaries

Hotz v. Minyard The plaintiff the daughter of the testator. What is the testators condition? He is incompetent b/c he had a stroke. What is the daughters claim against the atty? He violated a fiduciary duty to her b/c the daughter and father were joint clients and the atty withheld the second will. o This is different from the previous case b/c she is arguing that she is a client of the lawyer. The last guy didnt argue that. What did the lawyer do? She asked to see her fathers will. The lawyer showed her the first will and not the second. The atty is helping one of his clients deceive another. What should the atty have done? He should have told the father from the start that he had a duty to both of the clients; and if he wanted to hide something from the daughter, he would have to withdraw. He should have said that he had conflicting interests. Once the lawyer finds himself in this situation, what should he do? He should have told the father that he cant do this and he has to withdraw. o He could sever the relationship w/ the daughter and then withdraw. What about telling the daughter there is a second will, but he cant show her? o There could be breach of confidentiality. Could he tell the daughter that you and your father have a conflict of interest and you should get your own lawyer? That would upset the father. Wills are based on the desire to protect other people or to give assets to others. HYPO: Suppose you are a state legislator, and you are sitting down to draft and intestate statute, what should you try to accomplish? To effectuate what most people would like to have done. Do what is best for the stateeffect some public policy

For Thursday: Read pp. 59 67

19 January 2006
Last class, we started talking about intestate statutes. If you are coming up w/ a scheme for distributing property of someone who does have a will, how would you have it distributed? The primary concern would be to carry out the probable intent of the average intestate decedent. Could you bring policy considerations in the mix? Yes. What would they be? 12

o o o o

You wouldnt to burden the state and the family. What about providing for people who are dependent upon the decedent? Yes. What about relieving the state of caring for elderly relatives of the decedent? You could. When drafting your statute, should you do it w/ a large estate in mind or a small estate in mind? A smaller estatethe average estate size Most of the time, an intestate statute would be apply to those of smaller estates

On p. 62, there is a question. Under all intestate succession statutes, parents are not heirs if the decedent leaves a child. Why should this be so if the child is an adult? o If it is an elderly parent and they are cared for in a nursing home, they are going to die sooner than an adult child. If you give it to the parent, it would have to pass through someone elses estate again more quickly. You want to reduce the amount of times you have to administer the same wealth. o The younger generation will probably be able to do more with the money. If you give it to the younger generation, they will put it in education or some kind of investment. Most people, if they leave a surviving spouse and kids are going to prefer to leave all of the property to the surviving spouse (SS). Suppose that for both spouses this is a second marriage and they have children from their prior relationships as well as kids together. Could that affect how people would want their property passed at death? YES The childs other parent may have arrange for that child. How does the Uniform Probate Code (UPC) handle multiple marriages and kids? o Does the spouse get the whole estate if there are other children present? No. The amount varies depending on the family structure and whether there are other kids. HYPO: Ward and June are married. They have Wally and Beaver as children. Ward nor June have previously been married or have outside kids. Ward dies, leaving behind June, Wally, and Beaver. Wards estate is $480,000 and died intestate. We look to 2-102, which tells you what share of the decedents intestate goes to the spouse. The first subsection, part two would apply. So, the entire intestate estate would go to June. HYPO: William was married to Wife. They had two children. Then his wife passed away. William writes off to a mail-order bride place. He ends up marrying Sarah. William and Sarah had a child together. Then Sarah passes away. The estate is worth $480k. We look to 2-102(3). William will get $150k and then of any balance of the interstate estate. So, William gets $150k + $165k = $315k. At this point, we havent distributed all of Sarahs estate. There is still $165k left. Next, we go to 2103. So, the rest of the estate will go to the child of Sarah and William. So, that child gets $165k. What about the kids of the former marriage? They dont get anything as step-children. They cannot participate in the intestate estate. The issue under 2-103 whether the step-children are the decedents descendants of Sarah. See 1201(9). A descendant of an individual means all of his or her descendants all generations, w/ the relationship of parent and child at each generation being determined by the definition of child and parent contained in this Code. 1-201(5) defines a child as an individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, foster child, etc. 2-114 says that an adopted individual is the child of his or her adoptive parent. Thus, it the child were adopted, he could get some money. 13

HYPO: Emma is the child of an elderly father. In the course of the book, she falls in love with and agrees to marry Mr. K. Assume that Mr. K and Emma got married; but they didnt have kids. Shortly thereafter, Emma dies; leaving behind her dad, her husband, and an intestate estate of $480k. We look to 2-102(2). So, Mr. K gets $200k plus of any balance of the estate. Thus, Mr. K gets $200k + $280k(.75) = $200 + $210 = $410k. So, there is $70k of her estate left. Next, we go to 2-103(2). So, the father gets the additional $70k. HYPO: Cinderella has a mother and father. Mother dies; and her father remarries the WSM (wicked stepmother). WSM had two daughters from a prior marriage. Assume that Cinderellas father dies and leaves an intestate estate of $480k. We look at 2-102(4). So, WSM gets $100k + $380k(.5) = $290k Next, we go to 2-103. Cinderella will get the remaining $190k of the estate. Problem 1 (p. 64) If Howard dies before Wendy intestate, what would be Wendys share? o We look to 2-102(3). So, Wendy gets $150k + any balance of intestate estate. If Wendy dies before Howard intestate, what would Wendys share be? o We look to 2-102(4). So, Howard would get $100k + any balance of intestate estate. Do the different amounts provided have a rationale basis? If Wendy survives, she will have three kids to take care of. If Howard survived, he probably wouldnt take care of the third child (the child of Wendy and not Howard). The author tells us that if Wendy didnt have a child by a former marriage she would get all of Howards estate. But b/c she does have a child by a former marriage, she only gets $150k + any balance of the intestate estate. Do you think this carries out Howards intent? o No. In many respects, Howard raised Michael of a son, even though he never adopted him. The theory is that b/c Wendy has a child from a former relationship, all of it wont go to her. Is the UPC fair to step-parents? It depends on the step-parent. Could we have a more individualized assessmentthe amount that goes to the step-parent depends on the relationship? Not efficientlythat is why they need to have a will. This is a default rule. Any thoughts about the UPC intestacy scheme? Does it strike you as simple and easy to apply? One of the critics made of the 1990 version of the UPC is that wherever they change from the 1960-something version, it is a lot more complicated. Problem 2 (p. 64) H & W have been married by one year. We have to find out Ws elective share under the UPC. o We look at 2-102(1)(i). Under this statute, W would get everythingthe whole estate. The decedent had no descendant or parent. Now, look at the outcome under 2-202. This is the elective share provision. An elective share when the SS can choose b/t two optionstake what is given to them under the will or their elective share, which can override the will. o If we applied the elective share under 2-202, W would get 3% of the augmented estate. If W takes by intestate succession, she gets the whole estate. If she takes by elective share, she only gets 3%. This is to protect her if he left her would of the will completely. The intestate statute goes to what you think people would want if they didnt have a will. In that case, they would want all of the estate to go to the spouse. You cant entertain that same presumption if you have the elective share statute; for 14

you to get to that point, you have to have a will. So, elective share only arises if the person has a will. So, the UPC says that the amount they are forced to give depends on the amount they are married. HYPO: Suppose Hs will, leaving nothing to W, was a will that he executed before the marriage. Is W relegated to the elective share? Is that all she can get? See 2-301, which deals w/ the issue of a premarital will. We are going to assume that in the case of a premarital will, unless certain exceptions apply, the SS will get the intestate share. So, if we apply 2-301, W would get the whole estate, even though the will left her nothing. Problem 3 (p. 65) It isnt legal to enter into a bigamous marriage.

For Friday: We will start w/ problem 3, Read pp. 67 77

20 January 2006
Problem 3 (p. 65) Bigamy: o Some jurisdictions recognize the putative spouse theory. If she entered into the marriage in good faith w/o knowing there was a previous marriage, she will be treated as a spouse for purposes of intestate succession. o Some jurisdictions may have a presumption that a marriage is valid. o Some jurisdictions would say that even if the marriage was invalid initially, it became valid when the other spouse died or the divorce became final. o In some jurisdictions, a bigamist marriage cannot be nullified after his death, so she would be considered the spouse. Common law marriage: o If you are in a common law state and you do all the things for the common law marriage to be valid, she would be entitled. Contract: o She will not be entitled to take as a surviving spouse. The best thing to do would be to have a contract. Separated: o She will be treated as a surviving spouse as long as the divorce isnt finalized. There is some material on pp. 65 67 that deal w/ same-sex relationship and domestic partners. We will discuss that more in Ch. 7. We are going to look at the GA Probate Code 53-2-1(b). HYPO: We are going back to the Emma hypo. We are going to analyze it now under the GA Probate Code. o The UPC had her splitting the estate b/t her husband and her parent. o Under the GA law, all of the estate would go to the surviving spouse. Back to the Howard HYPO. 15

We had H married to W. They had two children from the marriage. W had a child from a previous marriage. If we were to distribute Howards estate, intestate, under GA, what would happen? Basically, the surviving spouse under the GA statute gets a childs share. So, each will get a 1/3 share (the two children and the wife). What if Wendy died first, what would happen? Howard would get 1/3 b/c that is the minimum share under the GA. That means that 2/3 would be divided among Wendys descendants per stirpes.

One thing that a revision of the GA code did was to raise the min amount of the spousal share. It was increased from to 1/3. Why would the AARP (elderly association) prefer something like the UPC over what he have in the GA Probate Code? They might prefer the UPC b/c parents get a share. What else? Under the UPC, the spouse gets their share, then it is split up among the kids. Thus, the surviving spouse will get more than the children. This is b/c the surviving spouse gets a certain amount before they have to decide anything w/ the children. Janus v. Tarasewicz Stanleys mother is claiming a property right to life insurance proceeds. Life insurance proceeds pass outside of the will. It is non-probate property. Advantages and Disadvanages of Life Insurance and Probate Property o HYPO: Suppose we have a piece of land worth $100k, which is probate property; and we have a life insurance policy which is worth $100k. Why would it be better to get the life insurance proceeds? You know exactly how much you will receive. If the real property has to pass through probate, it will be subject to the expense and time of probate. W/ life insurance, you only have to provide a death certificate, and that is it. When you probate property, you have provide a lot more. W/ life insurance, you get the money right away; it is more liquid than the property. o Suppose someone wants their name on the does that happen? If someone wants to have a will, what do they do? They may have to go to an atty. They may need to have it notarized and some witness. o If you want to designate someone for life insurance proceeds, you just put their name on the form. You dont have to go through a lawyer. o What if you change your mind later? It would be easier to change the life insurance policy. Who is the primary beneficiary for the life insurance policy? His spouse, Theresa, is the primary beneficiary. o The contingent beneficiary is Stanleys mother. Why does Stanleys mom feel she is entitled to the life insurance? She is claiming that there is no sufficient evidence that Theresa survived Stanley. Why is Theresas estate there? They were already distributed money. Why do you know what property to pass from one estate to another? You dont want double taxation. A person might want their property to go to who they want it to. Also, you have attys fees, fees of administering the estate, etc. What does the old USDA do? What standards does it give us in trying to prove...what the statute does? If someone has to show survival to take, what did the older version of the USDA do? o The standard is if there is sufficient evidence of the order of death.


o The property of each person shall be disposed as if he had survived, and if the insured and the beneficiary of a policy of life or accident insurance have so died, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. What are the applicable standards for determining when someone dies? It is when the person was medically determined to have sustained total brain death. o What about at common law before we had EEGs? When a person stops breathing and his pulse stops, that is the common law point when someone dies. o Why did we bring in the brain death standard? Technology has improved. It is possible for someones heart to be pumping and breathing, even if the brain has no function to it. This is b/c of machines. Survivorship is a fact which must be proven by a preponderance of the evidence by the party whose claim depends on survivorship. The trial court said that Theresa survived the longest. The appellate court agreed. What is the evidence that shows that Theresa survived longer? o He died on his way to the hospital. o The evidence that she is alive is that she had one EEG reading, her right eye responded to light, and when she arrived to the hospital she had her own pulse. At the hospital, they did evething to revive him and he didnt respond. One doctors said that the EEG could have had a reading b/c there was machine interference.

The reason for the USDA was to prevent situations as such. However, it didnt help in this situation. What is the problem w/ the old USDA? It said that there had to be sufficient evidence. Looking at UPC 2-104. The UPC sets a 120 hour time limit. The person has to survive by 120 hours. Would this have resolved the Janus case? Yes b/c everyone would have agreed that she died w/in 120 hours of Stanley. Would this statute determine what would happen w/ the life insurance proceeds? This only guides certain rights under the intestate statute. See 2-702(b). Would this statute settle the life insurance question? Yes, if you couldnt show it w/ clear and convincing evidence. See 1-201(18) for the definition of governing instrument. So, 2-702(b) ought to govern in the case of a life insurance policy. What if were a will? What statute would we apply? A will is a governing instrument, so it would be covered by 2-702(b). Can you draft around this 120-hour rule? Yes. See UPC 2-702(d). Subsection one allows you get around the 120-hour rule. GA still operates under the older version of the USDA act. Problem 1 (p. 72) Boat Drowning: This isnt sufficient evidence b/c there are too many scenarios that could happen. There is no definitive proof of who died first, so USDA applies. 17

Plane Crash: The ct. held that the wife survived the husband. The fact that there is carbon monoxide in her bloodstream and not his, it shows that she was breathing after he stopped breathing.

When property is passing to descendants by intestate succession, statutes typically bring in an idea of representation? Who is representing whom? One person can represent a generation. The child would be representing the later generation. So, peoples descendants can represent them in the distribution. Per Capita: A distribution that takes place per capita means that one person gets one share. You divide it by the head. Per Stirpes: Per stirpes means by the stocks. Therefore, the distribution is by the bloodline OR one bloodline one share. English Per Stirpes (Strict Per Stirpes): The property is divided by the number of children. If the child has predeceased the parent, his share is divided among his children. See p. 74 for example. Modern Per Stirpes (Per Capita w/ Representation): If the children are alive, it works the same as the English per stirpes. Difference b/t English Per Stirpes and Modern Per Stirpes. o W/ English per stirpes, you divide at the children level and then work your way down. W/ modern per stirpes, you divide the property at the first generation where someone is alive. What about the GA Law w/ the HYPO on p. 74 (top)? (b)(2): If you dont have a surviving spouse, the heirs are the relatives in the nearest degree to the descendant where there is a survivor (b)(3): This wont help resolve our problem b/c none of the children survived. However, the second part of (b)(3) may help. Children of the decedent are in the first degree. o If we applied this to our hypo on top of p. 74, whatll happen? D gets ; E and F will get . Which of the per stirpes system is used in GA? English Per Stirpes Really, this particular statute actually applies the English Per Stirpes Assume that A died leaving a surviving spouse. We were going to resolve this HYPO under the GA Probate Code. What would we do? There are descendants, even though there arent children. So, (b)(1) wont help. 1/3 goes to surviving spouse, 1/3 goes to D, and 1/6 goes to E and F.

For Tuesday: Read pp. 77 83

24 January 2006
Last class, we were talking about systems of representations. We are talking about different schemes. We talked about English Per Stirpes and Modern Per Stirpes. The UPC came up w/ Per Captia for Each Generation (see p. 75). How does Per Capita w/ Each Generation differ from the other systems of representations? The initial division of the estate starts at the first generation where there are survivors, like modern per stirpes. After this first level, they are going to be distributed per capita at each level. HYPO: Decedent, at the time of her death, she was married to her surviving spouse Joe. Joe has one daughter by a prior marriage, named Yolanda, she is not a daughter of Jane. Jane is still alive. None of the kids my Jane 18

and Joe survived. A had a child D who is still alive and has two kids J and K who are alive. B had E, who is alive, and F and G, who are dead. G had two kids L and M who are alive. C had H and I, who are both dead. H had a child N, who is alive. I had a child O, who is dead. O had a P and Q who are alive. The estate is worth $1,150,000. How will the estate be divided under: UPC: o We are starting w/ 2-102(3) b/c Joe has a descendant that is not a descendant of Jane. Therefore, Joe will get $150,000 plus one-half of any balance of the intestate estate ($500,000) = $650k. o Next, we go to 2-103(1). It goes to the decedents descendants by representation. See 2106(b) for the instructions of what to do when you pass the estate down by representation. We go to the closest generation that contains one or more survivors. Does Yolanda get anything? No b/c she is not a descendant of Jan. We have to go to the generation of Jans grandchildren b/c that is the first estate that has survivors. So, D and E each get a share. Also, G, H, and I get a share b/c each of them has descendants. D and E each get a full share (1/5 of the remaining estate). This equals $100k. We remaining three shares are combined and then divided in the same manner among the surviving descendants of the deceased descendants...2-106(b). We will not allocate anything to J and K b/c D is still alive and got his share. So, we have to divide the remaining estate b/t L, M, N, and O. From the statute, we are going to divide the remaining shares as if D, E, J, and K are dead. This is b/c they already received their shares and J and K are the descendants of D, who already received his share. So, we divide the $300k by four. Thus, L, M, and N receive $75k each. P and Q will receive Os share by representation. Thus, P and Q will receive $37.5k each. GPC: o We will start at 53-2-1(b). o Since there is a surviving spouse, we have to divide equally b/t the spouse and the children. Thus, the spouse would receive . However, at the end of the section, it says that the min a spouse can receive is 1/3. So, Joe gets 1/3 ($383,000). Each of the children will receive 2/9. o We will then divide at the generational level. It is going to descend by bloodlines for A, B, and C. The estate will be divided per stirpes (that means no pooling). o D will receive 2/9 ($255k). This is As share. o E would receive 1/9 ($127k). L and M would each receive 1/18 ($63k). o N would receive 1/9 ($127k). P and Q would receive 1/18 ($63k). Which system of representation (UPC or GA Probate Code) do you prefer? If you want to leave the surviving spouse more, then you would want the UPC Code. What do you think what most people would prefer? Probably the UPC b/c they want to support their spouse. What is the other argument in favor of the UPC? People who are equally related to the decedent get the same amount. Under the UPC code, L, M, and N, all grandchildren of the decedent get the same amount. Under the GA Probate Code, L and M get as much as N, but they are all grandchildren. The question is whether you want each separate family to get the same amount (GA) or whether you want each person to get the same amount (UPC). 19

HYPO: D left a will saying that my property is to pass intestate except to my son. Common Law: Instead of saying it in the will, D would have to leave all of his property go to others. UPC: Under the UPC, you can simply name someone that you do not want to take a share of the intestate estate. See 2-101(b). Why would you disinherit someone? It could be left on the nature of who you think deserves it. Also, you may want to leave someone out b/c they are already wealthy. Also, you can feel that one of the potential heirs already got his share during life. HYPO: Suppose D dies w/o a surviving spouse and w/o any surviving descendants. Under UPC, how do we determine a persons heirs? Go to 2-103 for guidance. In 2-103, representation means per capita at each generation. (2-106(3)) In this country, one get you beyond first line-collaterals, there are two major methods used to decide who is next of kin. (See p. 80). We have the parentelic system (you to go parents and then down, then grandparents and down, and then great-grandparents and down, etc.) and degree of relationship system (you count the degrees/steps of kinship; you count up to the common ancestor and then down to the person). Which of those does the UPC rely upon? The UPC relies on the parentleic system. HYPO: Suppose D dies w/ no parents, children, siblings, nieces/nephews, nor grandparents. There are greatgrandparents, but no one mentioned in categories in 2-103. What will happen? It will go to the state (2-105). Looking at GA 53-2-1. If D dies w/o a spouse of a descendant, the property will go to the parents. If there are not parents, it goes to the siblings or the descendants of the siblings or the descendants of any nieces or nephews. Then it goes to grandparents. Then to uncles and aunts. If you cant find any of those people, then the property goes to whoever has the closest degree of relationship. Those of equal degrees share the estate. HYPO: A died instestate. A had siblings, B, C, and D. B, C, and D are all dead. B had three kids who are still alive. C had two kids that are alive. D has one child that is alive. Under GA Probate Law: o There are no live siblings. o The nieces and nephews who survive the decedent will take the estate in equal shares. Thus, each of the nieces and nephews will receive 1/8 of the estate. This is not a strict English per stirpes b/c the nieces and nephews take equally. It seems like modern per stirpes b/c each takes an equal share. However, what if none of the nieces or nephews are alive, but they have kids? They would take per stirpes the share that the niece or nephew would have taken if in life. Thus, it doesnt follow English or modern per stirpes. How does 53-2-1(b)(7) compare to 53-2-1(b)(5)? (b)(5) says descendants and (b)(7) says children. (b) (7) only goes to the first cousin. It seems like the grandchild of an uncle could not inherit under (b)(7). To get anything, they would have to get theirs under (b)(8). o Are they out of luck b/c they arent the children, but the grandchildren? Yup. They have to go through (b)(8) to get their portion of the estate. Under the (b)(8), where we are counting steps would you want to be a first cousin twice removed and a second cousin once removed? It is better to be a first cousin twice removed. 20

The UPC if you dont find anyone, you stop looking at send the estate to government. W/ the GA probate code, is there a point where you stop looking? NO!!! You keep on looking. Which do you think represents the wishes of the decedent? It depends on the closeness of the family. What were the UPC drafters thinking about itmaking it escheat after the grandparent line? You want to prevent laughing heirs (a person so distantly related to the decedent as to suffer no sense of bereavement, laughing all the way to the bank). See p. 81. If you were a legislator, what would you do? It is hard to decide where you would draw the line. Under the UPC, your great-grandparent would get nothing. Problem 1 (p. 82) Under the UPC, it would go all to the mother. Under the GA Probate Code, it would go all to the mother.

HW for Thursday: We will start w/ prob. 2 on p. 82, read pp. 83 99

26 January 2006
Problem 2 (p. 82) UPC: 2-101 gives us the general rule. 2-102 gives us share of a surviving spouse. If there is no surviving spouse, you go to 2-103(4). We will divide the estate in half goes to the maternal first cousin and to each of the paternal first cousin. GA Probate Code: 53-2-1(b)(7) Each cousin would receive 1/3. o Under per capita representation, you want people to treat people who are equally near as equally dear. Problem 3 (p. 82) The first cousin of the mother is the first cousin once removed. The granddaughter of the decedents first cousin is a first cousin twice removed. UPC: Under 2-103(4), it would go to the descendants of the grandparents. Under the UPC, the first cousin once removed (B) b/c he is related through the grandparents. Was called on Problem 3 and the problem on p. 83. Hall v. Vallandingham Summary of the facts. o Earls four children want a share of the estate b/c they are among the natural heirs of William. o Since William died intestate, his estate should go to his surviving siblings, and any deceased siblings shares should go his children. The ct. held that the children do not get a share of the estate. o Under MD law, the effect of being adopted by the new father is that the kids are cut off from Earl and Earls family. What is the policy of cutting of inheritance from or through Earl? If you dont do that, they have more people that can inherit from. They are getting more changes to inheritfrom the adoptive parents and from the natural parents. 21

At the time that Killroy adopted the kids, what was the law? At the time that they were adopted, the law specifically provided that they kids could inherit from or through Earl. o Does it seem fair to change the law after the adoption has gone through? It doesnt seem fair, but you dont want to have things too complicated. The law at the time may have affected their decision about whether for Killroy to adopt or not. Could the children argue that this was a taking under MD law? The right to receive right of property after death is not a natural right but a privilege. In Hodel, the ct. said that the people had just a taking and not a definite right. HYPO: Suppose that the kids after the death of their father and the adoption, they were still very close w/ the fathers family. Would that have changed the outcome of the case? No. The ct. applied the law as they are. They applied a strict interpretation of what the law said. o The ct.s opinion didnt turn on the actual relationship. HYPO: Suppose the issue was whether Earls relatives could inherit from Earls natural children. What would happen? o The relative wouldnt be able to inherit as well. It is like the kids are being born into a new family; and therefore, they have lost their connection w/ the old family. Note 2, p. 87. They ask how this case would come out if we analyzed it under 2-114(b). Under 2114(b), the general rule is that the effect of an adoption is that child is cut off from his natural family. o Is there an exception that might apply to these facts? Yes. See 2-114(b) the later part. If you apply that principle, they would be able to inherit b/c that wouldnt change the relationship b/t them and their natural father. HYPO: Suppose that the step-father wants to inherit from one of those kids after the adoption. What would happen? The exception for step-parent adoptions creates a one way street. The relationship w/ their mother will not be affected at all. The relationship w/ their father is affected; but since the adoption was by a step-parent, they can still inherit from and through their father. However, the stepfather cannot inherit from the child. o Why did they make it flow one way? Maybe they thought that step-parent adoptions are a good thing; but we dont want it to go both ways b/c it would get to complicated. If you allowed it to go both ways, you could have both natural and step-parent families trying to go after the estate.

GA Code 19-8-19: Effect of decree of adoption (a) A decree of adoption, whether issued by a court of this state or by a court of any other jurisdiction, shall have the following effect as to matters within the jurisdiction of or before a court in this state: (1) Except with respect to a spouse of the petitioner and relatives of the spouse, a decree of adoption terminates all legal relationships between the adopted individual and his relatives, including his parent, so that the adopted individual thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship; and (2) A decree of adoption creates the relationship of parent and child between each petitioner and the adopted individual, as if the adopted individual were a child of biological issue of that petitioner. The adopted individual shall enjoy every right and privilege of a biological child of that petitioner; shall be deemed a biological child of that petitioner, to inherit under the laws of descent and distribution in the absence of a will, and to take under the provisions of any instrument of testamentary gift, bequest, devise, or legacy, whether executed before or after the adoption is decreed, unless expressly excluded therefrom; 22

shall take by inheritance from relatives of that petitioner; and shall also take as a "child" of that petitioner under a class gift made by the will of a third person. (b) Notwithstanding the provisions of subsection (a) of this Code section, if a parent of a child dies without the relationship of parent and child having been previously terminated by court order or unrevoked surrender of parental rights to the child, the child's right of inheritance from or through the deceased parent shall not be affected by the adoption. ADOPTING AN ADULT: On p. 88, it says that adoption of an adult can prevent will contest. How is that possible? If they are adopted, the person would be treated as a child; and thus, no one can contest that person taking from the estate. HYPO: D has a brother. D is afraid that his relatives will contest his will b/c he wants to leave everything to his secretary. Thus, D would adopt his secretary, so that he can leave her everything. That way, no one can contest her receiving part of the estate. Stranger-to-the-Adoption Rule: The adopted child is presumptively barred, whatever generic word is used, except when the donor is the adoptive parent. The parents of the adopting parent had left a will. The question would be whether the adopted grandchild will take under that will. The rule in many jurisdictions, at one point, was that an adopted child could not take from a stranger to the adoption (such as the parent of the adoptive parents), but they could only take from the person that adopted them. The law today, in most states, is that adopted children have the same status as children. Minary v. Citizens Fidelity Bank and Trust What legal document is being construed? There is a trust that is supposed to end on the death of the last surviving beneficiary. It is supposed to be distributed according to the provision on p. 89. o The beneficiaries of the trusts are her husband and her sons. The son that we are concerned about is Alfred. Alfred was married to Myra. Alfred adopted Myra. The theory is that she is the granddaughter of Amelia. Under KY Law, adopted children are treated as natural children. Why do you think Alfred adopted Myra? He adopted her just for this purpose. Since they didnt have any kids, they wouldnt get a share of the trust after his death; so this was a way to bring her into the trust. Is there a policy reason not to permit the adoption of a spouse? o If Myra and Alfred had kids after the adoption and you were applying the intestacy statute or Alfreds will, you may get confused on whether Myra is a spouse or a child. o Does the relationship become incestuous at that point? You should keep your spouse and your child separate. What does the KY statute say about adoption of adults? It allows adoption of adults. o Doesnt that statute seem to support Myra? Yes.

HW for Friday: Read 99 111 and two things on Electronic Reserve

27 January 2006
GA Law on the Effect of Adoption: OCGA 19-8-19 23

First, looking at 51-3-8 deals w/ the adoption of inheritance rights. What teaching does it give us? It says that adopted children are treated like natural children. It incorporate 19-8-19. If we pull out 19-8-19, it is a little like the UPC. The UPC had a general rule and an exception to the general rule. GA is the same way. What is the general rule about the effect of adoption for inheritance rights? o The general rule is that adoption essentially makes you a member of a different family. The exception is 19-8-19(b). o It is about a court order. o Subsection (b) says if a parent of a child dies without the relationship of parent and child having been previously terminated by court order or unrevoked surrender of parental rights to the child, the child's right of inheritance from or through the deceased parent shall not be affected by the adoption. If a child were still a child of the natural parent at the time of the natural parents death, a subsequent adoption doesnt affect the rights of the child to the natural parents. If we apply this to the Vallandingdam case, the children would be able to inherit from the uncle. This would come under the exception under subsection (b). This is b/c the children were still Earls when he died.

HYPO: Suppose that the adoption took place during Earls life (so no exemption under (b)). Suppose that Earls parents left a will that specified that they are going to give $100k to each of the grandchildren. Will the children of Earl take under that will? NO. That is the effect under OCGA 19-8-19(a)(1). It applies not just to rights of inheritance, but also to the interpretation or construction of documents. So, if the grandparents wanted to leave the grandkids something, then they need to designate them by name. HYPO: What if it said I leave $100k to each of the children of Earl? The kids still wont get anything. HYPO: What if the will was left by the step-fathers (Killroys) parents? The will said that $100k would go to each of the children of Killroy. In this case, the kids would be able to receive something. Minary v. Citizens Fidelity (continued) Alfred messed things up by adopting his wife. KY allows the adoption of adults. Why doesnt Myra get money from the trust? Maybe the court was wrong about the intent of Amelia. Maybe she wanted her sons to be able to pass on the estate to whoever they chose by adopting that person. Is there another critique you can make about the court? When the language of the statute is clear, it is clear that Myra should have gotten the estate. They should have interpreted the law, instead of making new law. Could you say that the legislatures intent wasnt to cover something like this? ONeal v. Wilkes She had no relationship w/ her father. She didnt meet him until she was in her twenties. How was she raised? 24

o She lived w/ her mom for 8 years until she died. She then lived w/ her Aunt Ethel for 4 years (age 8 12). Then she lived w/ Louise. Then she lived w/ her Aunt Estelle in Savannah for a short amount of time. Then, she ended up w/ the Cooks. She lived w/ the Cooks until her marriage. o Does the Cook household remain the same? No. The parents get divorced. She remained w/ Mr. Cook until her marriage. He thought of her as a daughter, and she thought of him as her father. He even called her kids his grandkids. This case talks about virtual adoption and equitable adoption. o What is equitable adoption? In certain circumstances, equity will treat the circumstances as if there were an adoption. o When can you find an equitable adoption? What is the legal basis for acting when an adoption has taken place? The court is imaging or assuming the existence of a contract. Who are the parties of the adoption? Someone w/ legal authority of the child (usually the natural parents), the adoptive parents, and the child The ct. does not hold that she was equitably adopted. Why not? It is b/c Aunt Estelle did not have legal authority to enter into the adoption. At the time that she went to live w/ the Cooks, was there anyone who had the legal authority to consent to the adoption? o The mother was dead. o The fathers consent wasnt necessary b/c he never acted as if he were her father. He abandoned her. o Could her Aunt Estelle have gotten the legal authority? She could have gotten authority from the juvenile court or she could have gotten herself appointed as guardian. Which argument do you find more persuasive? Dissent o The ct. is applying rules that were for the benefit of the child; yet The theory for equitable estoppel is the fact that the adoptive parents didnt do something they should have done. Should the culpability of the Cooks change the aunts position? No One factor the dissent suggests is whether the child has assented to the agreement. What does the child have to do? Service, companionship, and obedience o ONeal fulfilled her part of the agreement Note 1, p. 98. If the ct. finds there has been an equitable estoppel, what is the result? o She would be a child of Cook and entitled to inherit as if she were his natural child. Can foster parents or relatives of foster parents rely on the theory of equitable adoption to inherit from the child? No. Can the child inherit from other relatives of the foster parents? Some jurisdictions say yes; others say not. See p. 99, Note 4. The authors suggest that there is a widespread custom of informal adoption among Blacks. If that is in fact the case, should that be taken into account in administrative laws of intestacy? Yes b/c it supports the theory of equity. Five justices in the majority were the men. The female justices dissented. Do you think that gender played a role? Perhaps. o If there were all women, do you think the decision would have been different? Yes.



Is a child entitled to a share of the intestate estate if the father dies before the child is born? Yes. Assuming that a child is later born alive and conceived by the father when he was alive, the child is an heir of the father. UPC 2-108 What is the point/policy of the 120 hour rule? o The 120 hour rule also came into play w/ the Uniform Simultaneous Death Act. o Here, the modern version of the USDA says that you have to survive by 120 hours. They have applied that same principle here. HYPO: Suppose a man dies intestate. Eight months later, his wife has a child. Do you know that he is the father of the child? The law presumes that the husband is the biological father of the child. o How long did that presumption last at common law? THe presumed period of gestation was 280 days. So, if you were born w/in 280 days of the fathers death, the child was presumed the biological child of the father. OCGA 53-2-1(a)(1) There are three requirements for the GA law: o Must be conceived prior to decedents death AND o Were born w/in 10 months after decedents death AND o Survives for more than 120 hours CHILDREN BORN OF OUT WEDLOCK OCGA 53-2-3 and 53-2-4 Mother o 53-2-3(1): Marriage is immaterial in the case of inheriting from the mother o 53-2-4(a): The mothers relatives can inherit in the same way. o Thus, it goes the same way w/ the relationship of the mother Father o Why is there a different set of rules for the father? When a woman has a child, it is very clear who the mother of the child is. In general, if a woman gives brith, there is clear evidence that this is the mother of the child. However, when a woman gives birth, it is not necessarily clear who is the father is, esp. when the mom isnt married. o So, what has to happen for the child to inherit through or from the father? 53-2-3(2): See p. 7 in supplement An order of legitimation o This is where the father wants to establish the father/child relationship and brings and action to do that. An order establishing paternity o A paternity action can be brought by anyone to establish the paternity of the father. Father has executed a sworn statement Father has signed the birth certificate Other clear and convincing evidence that the child is the child of the father o This is similar to Note 1 on p. 101. There is one other way in which a parent-child relationship can be establish w/ the father. See OCGA 53-2-3(2)(b). 26

o What gives rise to a rebuttal presumption that there is a father-child relationship? We are talking about DNA testing or some other testing that can say that he is the father. This is the rebuttal evidence. o To overcome the presumption, you must have clear and convincing evidence. See (c). What about 53-2-4(b)? When can a father inherit from the child? All of the following must be proved: An order of legimation is required A court order establishing paternity is required Sworn statement by the father Birth Certificate signed by father Presumption of paternity has been established (this is the DNA testing provision) Here, we dont need the clear and convincing evidence...

Rainey (the case on eReserve) It seems like he was a bad father. Who filed the action? The mom filed an action to proved that...She is trying to establish that the father has no right to inherit from the child b/c he didnt treat the child as a child. The kid died in a car accident due to a manufacturing defect. There is a potential tort claim. The father has filed suit seeking to recover from the manufacturer for the lost of his son. What is the fathers objection to the statute? He claims it is a violation of the equal protection clause. It requires fathers to treat the child as his own... o What does the GA Ct. hold? They say that is does violate the equal protection clause. An EPC clause forbids differential treatment of similarly situated men and women. Could they have applied this statute to mother as well? The language is pretty strict about who it applies to. o Could that they have conditionally struck it down (meaning they will strike it down unless they change it to apply to mother also)? Yes Thomas (dissent): o The distinction drawn by the statute is b/t men who care for their children and men who dont. It is possible that it distinguishes b/t classes of men and similarly situated men and women. As an empirical matter, arent men the problem? It is much more likely for a man not to take care of his child than a woman not taking care of her child. Why cant the GA legislature take that fact into account? The ct.s equal protection jurisprudence places a limit on legislatures to legislate on the basis of stereotype. o The EPC forbids the state from imposing different standards on men and women similarly situated. Is it really the case that men and women are similarly situated? Even if the mother, immediately after birth has nothing to do w/ the child, hasnt she already sacrificed more than the father.

For Tuesday: Read pp. 101 116

31 January 2006
Rainey v. Chever (continued) See UPC 2-114(c). It sets conditions on the rights of the natural parents to inherit from the natural child. o What are the conditions? The natural parent must have openly treated the child as his/hers and has not refused to support the child. 27

o How is the statute different from the GA statute in Rainey? This statute talks about natural parents. The GA statute specifically said father. So, this statute would not be lead through the same statutory analysis as in Rainey b/c it applies equally to both parents. Note 2, p. 101. Is this something that you think should generally be permitted? After a person dies, do you think that a person claiming to be the child can get samples to prove that they are the decedents child? o You might require some prima facie showing before subjecting the person to testing. HYPO: Suppose the person is already buried. Someone comes into court and says this person is my father and I am entitled to inheritance. Let me exhume the body to prove it to you. o The judge would be more sympathetic to a person who needed to support. HYPO: What about having other living relatives of the decedent to provide a DNA sample? o It would be a lot easier technically b/c you dont have to exhume the body. However, you really couldnt enforce other relatives do it.

Woodward v. Commissioner of Social Security Who is seeking benefits and on what ground? The mother is seeking benefits on behalf of her two kids. What does the Social Security Administration do? They dont allow her to do it. How do you decide which children are entitled to receive survivor benefits? o No answer How did a state court get involved in a dispute of federal benefits? Under the SS laws to determine who is a child entitled to survivor benefit, you look to the intestacy laws of the state where the decedent lived. So, the federal court looks to the state court to see whether these people can be kids are not. The MA ct. is looking at the MA intestacy statute. What is the controlling language of the statute? The question is whether or not the decedent leaves issue (which was not defined in the statute). See p. 104 the persons who by consanguinity can trace their lineage to the designated ancestor. The statute was designed to accomplish certain policies. So, they are going to interpret the statute to be in conformity w/ the state interests (best interest of the kids, interest and orderly administration of the states, and protecting the reproductive rights of the genetic parent) o Best interest of kids. It might be in the best interest of the kids to inherit. o Interest and Orderly Administration of the States. It would make it more complicated b/c a lot of people could come in a claim. Any other reason for allowing posthumously conceived children to inherit? An estate could potentially never be closed if there artificial insemination. Would people have to give the money back if another child was conceived down the road? Etc. How are they going to keep this from being a nightmare? They will require proof of paternity and put a time limit on how long someone can assert that he is an heir of a decedent. The ct. didnt say the time limit, but it will be over a year. o Protecting the Reproductive Rights of the Genetic Parent. Does it make sense to protect that persons rights considering that the person is dead? There is some right or interest that the person has even if he is no longer around to assert it himself. What conditions are they going to impose on posthumous conceived children to protect the reproductive rights of the parent? Proof of consent to conception after their death 28

o The decedent parent has to consent to posthumous conception and to support of that child. Note 2, p. 109 What were the circumstances revolving around the artificial insemination? o The parents talked about having kids. They didnt have time for her to conceive, so they save some of his sperm. Does the widow have enough to win under the MA courts? She might get the intent part, but we really dont know. What about the Restatement Test? How does it differ? o You look to see whether or not the person would have consented? If that is the test, could she have prevailed? Yes. He probably wouldnt have put sperm in a sperm bank if he didnt want to have a child. o If it is the widow who has ordered the artificial insemination, the ct. will treat it as evidence. See p. 109. What do you think about the two approaches to the question? The MA court requires affirmative consent of both conception after death and the fact that he wanted to support the child. The Restatement only looks at whether under the circumstances he would have consented. It would be harder to recover under the MA statute. Is one test better than the other? Why require consent of the artificial insemination? Why isnt it enough that they would support the child? o You would want to protect the decedents wishes. The ct. speaks about the best interest of the child. Is it generally in the best interest of the child to encourage posthumous insemination? You have to worry about the single parent factor. Everything being equal, are there any advantages to a child growing up in a two-parent home rather than a single parent home? Two incomes, one parent can stay at home, greater ability to earn income, advantages in parental attention that can be given to the child, less likely that the child will be orphaned, etc. SURROGATE MOTHERHOOD What is a surrogate mother? She is the birth mother, but not the genetic mother. Johnson v. Calvert (p. 111) o The ct. had to decide which mother was the legal mother of the child the genetic mother or the surrogate mother. o What did the ct. decide? The genetic mother is the mother of the child. In England, the surrogate mother is considered the legal mother of the child. Which is the better outcome? o Student Answer: The surrogate mother b/c she goes through the actual process of carrying the child. Possibly, there has been some bonding b/t the mother and the child b/t the carrying of the child and the birth. She has made sacrifices on behalf of the child. o If you were a legislator, what would you do? I would go w/ the genetic mother. In re Marriage of Buzzanca (p. 112) 29

o In this case, there were five people involved (the contracting husband and wife, the surrogate mother, the genetic parents the sperm donor and the egg donor). o What happens that gives rise to the litigation? The contracting parents divorce and the contractual mother wants child support from the husband. o The father said that neither of them are the parents, so he shouldnt have to pay anything. o On appeal, the ct. held that the contracting parents are the parents; and thus, he is liable for child support. B/c he made an agreement to start the ball rolling here, he is on the hook for child support. When we are talking about who is the mother and father, we are making different decisions (p. 112). Should those determinations factor into who we determine is the child for purposes of inheritance? Yes.

Hypo on p. 113 One gay woman gives birth to the child. If the natural mother thereafter dies, survived by the child and the adoptive mother, is the child the natural mothers heir? NO The child will not be able to inherit from the natural mother. See UPC 2-114. This is b/c of the effect of the adoption. What does an adoption do under the UPC? o The general rule is that the adoption of the child causes the child to be a child of the new family. The adoption cuts off the relationship b/t the child and the natural parents, unless the exception applies. o The exception doesnt apply in this hypo b/c they parents are gay. They are not married. This person isnt a spouse. OCGA 53-2-5 If they are conceived by artificial insemination and presumed legitimate under 19-7-21, they are entitled to inherit under the laws of intestacy. o If a child is born w/in wedlock or w/in the normal gestation period and both parents consented in writing to artificial insemination, the child is presumed to be legitimated. HYPO: What if the child was unable to establish legitimacy under 19-7-21? Is there anything the child can do to inherit from the natural parents? There is nothing under this statute. o Can the child try to establish paternity under 53-2-3 and 53-2-5? By its terms it speaks to children born out of wedlock. So, if there was artificial insemination and no marriage, it might apply. HYPO: What if the sperm donor is the husband of the mother, but she was not inseminated until after he died? o You have to see whether or not the child was born w/in a reasonable period of time. See 53-21(a)(1). Does this provision speak to posthumous conception? They had to have been conceived prior to the decedents death. What does the rule appear to be here for a case like Woodward? The child was not conceived prior to the decedents death. ADVANCEMENT (a lifetime transfer from the ancestor to a person; it is a prepayment of a persons inheritance) Are all lifetime transfers advancements? No. It can be a gift. Common Law: It said that the child had the burden of proving that it was a lifetime gift. So, the presumption was that it was an advancement. 30

Are there any potential problems w/ the application of that rule? When giving things to your children during your lifetime, people dont think about what the future ramifications are. o If they dont put it in writing, it will affect the childs share at probate. Would it be hard for the child to prove it? There has to be something to corroborate the story. Could the circumstances under which a transfer was made affect how the ct. will view the gift? Yes. For example, a gift you get at graduation isnt going to be a transfer. Most people know that. You have either inference in the circumstances or testimony by people who have an interest. The problems on p. 115 help to explain the topic.

UPC 2-109 deals w/ the issue of lifetime transfers. UPC says that it is considered a gift. Then, it gives requirements that must be fulfilled to show that it was an advancement. See p. 115 in the book. What is the presumption? The common law presumption is that it is an advancement unless you can rebut it. Under the UPC, the presumption is that it is a gift. The requirements are that (1) there must be a writing by the heir acknowledging that it was an advancement and (2) writing by the decedent. OCGA for Advancement is 53-1-10 Subsection (b) tells us when something is treated as an advancement. What is a testamentary gift? A gift given in the will. What is a demonstrative testamentary gift? See 53-4-59. o What is a specific testamentary gift? It directs the delivery of property particularly designated. Example. I give my car to my son. o A demonstrative testamentary gift designates the fund or property form which the gift is to be satisfied but nevertheless is an unconditional gift of the amount or value specified. Here are you are directing from where the gift is to come from. Example. I give $5000 out of my Athens First Bank account to my son. o A general testamentary gift does not direct the delivery of any particular property. Example. I give $5000 to my son. o A residuary testamentary gift includes all the property of the estate that is not effectively disposed of by other provisions of the will. I give the residue of my estate to X, Y, and Z.

HW for Thursday: pp. 116 140

2 February 2006
We were starting to look at the GA code in 53-1-10. We went through the definitions immediately above. There is a significant difference in terminology b/t the UPC and the GA Probate Code. Which lifetime gifts are covered by advancements? o GA 53-1-10(b): The word advancement applies if it is a demonstrative gift, general testamentary gift, and a residual gift, and intestate succession. o UPC: 2-109(a): The word advancement applies in the context of intestate succession. Which lifetime gifts are covered by satisfaction? 31

o GA 53-1-10(a): We use the word satisfaction in GA law when there is a lifetime transfer that was designed to care of a specific testamentary gift. o UPC 2-609: The word satisfaction applies to testamentary gifts. GA 53-1-10(b): How does the GA code deal w/ advancements? How do we decide whether a particular lifetime transfer is treated as an advancement? It is a question of intentwhether the lifetime transfer was intended to be a part of the share that the heir would inherit by intestacy. How do we determine intent? See subsection (c). There are three ways (1) the will speaks about it or (2) there is a writing by the transferor w/in 30 days of making the transfer or (3) acknowledged in writing signed by the recipient at any time. How does 53-2-10(b) differ from UPC 2-109(a)? It requires either a writing by the transferor or a writing by the transferee. Is there a provision allowing you to do it by will? It doesnt talk about a will; but it makes sense when you are thinking about the terminology. This is b/c advancements only apply when it is intestate succession; and thus, no will. Are there any differences b/t the writing requirements w/ respect to what you have to do to treat a lifetime transfer as an advancement? UPC: It seems that the writing has to be contemporaneous as the gift. GA: The writing has to be w/in 30 days. HYPO: What if the writing was written 15 days after the gift was given? o GA: The person would be okay o UPC: We arent sure b/c the UPC says it has to be contemporaneous. This is a bit vague. HYPO: Suppose A made a lifetime gift to C of $50k. They satisfied the writing requirement (it said that the $50k should be treated as an advancement). How should we take the $50k in account if it is an advancement? GA Probate Code: See 53-1-12. The way you do that depends upon whether you are dealing w/ a demonstrative/general testamentary gift or if you are dealing w/ a testate/residual gift. o Demonstrative or General Testamentary Gift: 53-1-12(b). You reduce the portion of their inheritance by the value of the advancement. HYPO: Assume D died w/ an estate of $150k. D left three heirs (A, B, and C). A received an advance of $90k. B received an advancement of $30k. C didnt receive anything classified as an advancement. We will analyze this under 53-1-12(c). First, we have the definition of a distributable share (the share an heir would receive under the lawys or intestacy or the residuary clause if the value of all advances made by the transferor during life were added to the actual value of the transferors estate...) o In the HYPO, how are we going to determine the distributable share of each. We will add the value that A and B already received to the value of the estate. So, the value of the estate will be $150 + $90 + $30 = $270. So, the distributable share of each is $270/3 = $90k. So, what do we do under 12(c)? What about (c)(1)? o They would get the balance of their share after what they have already gotten. So, under (c)(1), B would receive $90k - $30k = $60k. o As portion would be covered by (c)(2). Since A already received an advancement equal to or greater than his distributable share, A gets nothing. o C would receive $90k - $0k = $90k 32

On pp. 115 116, the authors mention the hotchpot. If they have already received more than their distributable shares, they dont receive anything else; but they dont have to give back any extra. What is the difference b/t hotchpot and the GA statute? The two statutes are similar. The GA statute is a statutory description of the hotchpot method. THe comments to UPC 2-109 talk about the way the hotchpot method works under the UPC. HYPO: Now suppose that B had predeceased D and left a child E. So, now, we have to figure out in distributing the Ds estate, does it matter that B got an advancement? UPC 2-109(c): If the receipent of the property fails to survive the decedent, the advancement is not taken into account when distributing the estate. o So, if we were applying that statute to the hypo, where B has passed away, what would happen? You wouldnt add the $30k. So, the value of the estate is $150k + $90 = $240k. So, the distributable share would be $80k. o If A has already gotten more than his amount, you take him out of the consideration. So, we just start w/ E and C. So, $150k / 2 = $75k; so E and C would each receive $75k. GA 53-1-13: Would we take into the advancement to B under the GA Code? Yes, unless a writing said otherwise. Question (p. 116) Is one of those rules better than the others? o Student: I like 3 better. It seems like if they wanted it to come out of the heirs share, they should say so. How many people are going to be aware of the technical requirements that the advancement must be in writing at the time they make it? o Student: If it is a sohpiscated enough person, then they may have gotten legal advice. MANAGING A MINORS PROPERTY Guardian of the person of the child: The ct. picks the guardian of the child if the will doesnt designate one. If you have will who tells the guardian is, then that is the guardian of the child. Does a guardian of a person automatically be able to deal w/ the property of the child? No. They can only decide education, etc. However, there can be someone appointed as the guardian of the minors property. What are the rules associated with this? o If they want to do something significant (such as change the investments or dip into the investments), the guardian has to go to the court to get approval. Conservativeship: They are given the title of trustee, so they have more powers over what is done w/ the property. However, they have to give an annual accounting to the court. Custodianship: This comes from the Uniform Transfers to Minors Act. The person has a lot more power to do things w/o having to get the courts permission. They are subject to fiduciary responsibility to the child. o They can use it for any benefit to the minor. o What happens when the minor becomes an adult? Custodianship ends when the child reaches age 21. 33

What if the custodian still has property that belongs to the minor when he turns 21? Whatever isnt spent goes to the 21-year old child. Trustee: He has the most freedom to do whatever as long as he upholds the fiduciary responsility to the child. One advantage of a trust is that the person drafting the instrument can give the trustee as much or as little power as they want. o Does the trustee have to hand the property over to the child when the child becomes a certain age? NO

When thinking about these terms, there are some distinctions that we can draw b/t guardian/conservator and custodian/trustee? One distinction is whether there is a provision for a court involved. o The ct. can get involved under custodian/trustee if the child petitions the court. So, someone has to initiate court involvement. o To create a custodial arrangement or trust, the person giving the property has to take some act during his/her life. W/ a conservator or guardian, the ct. is automatically involved. Uniform Transfer to Minors Act is an exception...below $10k. Read this. HYPO: We are in a UPC jurisdiction. Property has been left to a minor in a will. The will says nothing about a guardian, conservator, etc. What happens? It goes to a guardianship or conservatorship. See 5-104. It talks about conservatorship. If there is a conservator that has been appointed, then you generally are going to deal w/ that person. o If that hasnt happened, what can the personal representative can do w/ money left to a minor? If the amount is $5k or less a year, it can go to the person who has the care and custody of the minor, to the guardian of the minor, to a custodian under the Uniform Transfers to Minor Act, or a financial institution. Problem (p. 120 121) First, the total adds up to $473k not $453k. Given these assets, how should the estate is going to be distributed under the UPC? o Anything that is joint tenancy (home, checking account, CD, mutual fund). This amounts to $223k that is held in joint tenancy. At his death, it will pass to his wife w/o going through probate. o There is also other non-probate assets the life insurance policy and the IRA. The IRA is a nonprobate asset b/c it is a payable at death contract. So, this additional $155k will pass to the wife due to contractual provisions. o The probate property is the $20k in personal property, remainder interest in his mothers home, Lot and cabin, and securities (General Corp. and Varoom Mutual fund). Our total of probate property is $225k. He dies intestate, so what is going to happen to the property under the UPC? We start w/ UPC 2-102(3) b/c all of the husbands descendants are the wife descendants and she also has an outside child. So, under UPC, the wife gets from the probate $150k plus of the remaining $75 = $150k + $37.5 = $187.5. The wife is getting a total of $565.5k b/c of the non-probate assets, the joint tenancy assets, and the probate assets. What will happen to the reaming $37.5k in probate? The two children of them will receive the remaining amount. 34

The question is whether he should have left a will. What do you think? o Most of the property passed outside of the probate. Even in probate, the bulk goes to the remaining spouse. So, he might be satisfied w/ the amount going to her. o What about the amount going to the minor children? He cant take advantage of UPC 5-104 b/c there is more than $5k going to each of the minors. So, he could have created a trust for the kids or had a custodian for the kids.

HW for Friday: pp. 122 140

3 February 2006
Exercise in Lawyering (p. 122 123) The preferred taker is the wife. If she survives, she will get everything. If she doesnt survive, all the property will go into the childrens trust. What about the personal property in Article 2? They will divide it up among the children in equal shares. If there is a minor child, the executor will help their picks. o After that, everything goes into the childrens trust. Who is the trustee? The trustee is Wendys sister, Lucy Does the will give a substantial degree of control? Yes o She can use the trust proceeds and assets for the care of the kids. She doesnt have to spend the same amount for each child. When the trust terminates, what happens? o A child that reaches the age of 25 can still get property from the trust for things like establishing a business, buying a home, etc. There has to be some special reason. o What happens we all the kids are 25, the trust terminates and the remainder is divided among all the kids. On p. 122, there is a letter from Wendy w/ different concerns. o This is a family pot trust the assets are in one trust and money will be taken out of the trust for the care of the kids. However, they could have set it up so that there is a separate trust for each child. o Why did they arrange only for one trust? There is a problem b/c there is a 20 year age gap. What problem can that create? The oldest child cant receive his portion of the trust until the youngest turns 25. So, the oldest wont get his share until he is 45. o Is there an argument in favor of doing it they way it is done here? Before the age of 25, they still need care and supervision. Basically, after the age of 25, they can take care of themselves. It is fairer to the younger children. When Michael was a minor, all of these needs were taken out of the family assets. If the parents continue to live, the same thing would occur for Zack (the youngest). This family pot trust is the same thing that would happen if the parents remained alive. Each of them will be taken care of by the family assets until they reach adulthood. Wendy says that she is no longer comfortable w/ the person she chose as her guardian. What are her options? o Wendy could designate a second guardian. When she is doing that, what should she take into account when selecting a guardian? She should look at how well the children know the parent, the lifestyle of the adult, economic status of the guardians, whether they are in a family setting (married, etc.), are they going to have time to devote to the kids o Wendy can designate anyone she wants to be a guardian. 35

On p. 126, why do you think they use age 25 instead of age 18, 21, or 16? By age 25, they think that the kids will be mature enough to handle the money. Twenty-five is a fairly common age to put in these documents. Most think that you are responsible when you hit mid-twenties. Is there a problem w/ the trust they have set up if the taker of the assets is a minor grandchild rather than the children? Does the trust contemplate a grandchild being a beneficiary? o They havent contemplated the possibility that maybe at the time of the death of the parents, there would be a minor grandchild; and then they would be forced into the guardianship procedures.

In re Estate Mahoney The wife of the decedent was convicted of manslaughter. So, the wife killed the husband. The estate was worth less than $5000. By virtue of the intestate statute in VT, the estate will go to the surviving spouse. However, here, the surviving spouse is in jail for killing. The ct. says that the legal title will pass to the wife, but she will hold it as a constructive trust. The ct. doesnt want the law to say that she will get the property. This is based upon the courts perception of their appropriate role. The legislature is the one that adopted the rule and didnt say anything about the heir killing the decedent. So, to give effect to the statute, the estate has to pass to the wife; however, they can act in equity by giving her a constructive trust. The constructive trust theory will only apply if the wife willfully kills the husband. So, there is a distinction b/t voluntary manslaughter (intentionally and lawfully kill someone) and involuntary manslaughter (lawfully kill someone by not intentionally). So, the distinction is based on intent. Could you have an intent to kill and yet the killing not be financially motivated? Yes. Is there a reason to apply this rationale if there was intent to kill but it wasnt a financial intent? o How easy would it be to figure out whether the killing was motivated by financial gain? o The ct.s rule is administratively more easy. This way, you dont have to worry about intent. UPC 2-803: A person is deprived of a right to take if the individual feloniously and intentionally kills. You can kill w/o it being a felony, such as self-defense. GA 53-1-5: A person is deprived of a right to take if the individual feloniously and intentionally kills. Whether the statute applies to non-probate transfers as well or is it limited to probate transfers? UPC 2-803: It says that it covers probate and non-probate transfers. They also have subsection (f) to cover any tracks, just in case they left anything out. GA 53-1-5(b): It says that the person will not be able to take by intestacy, years support, will, deed, power of appointment o Are there any non-probate transfers that may not be covered by the language? Think about joint tenancy. This would be covered under (d) Think about life insurance proceeds. 33-25-13. Who takes the killers place in inheritance? UPC: We treat the killer as having to disclaim the property. You act as though the disclaimant predeceased the decedent. GA 53-1-5(b): You act as though the disclaimant predeceased the decedent. o 53-1-5(c): Are the children on the killer barred from taking under the statute? No, but they cant take a greater share of the estate than they would have if the killer didnt kill. 36

Under the UPC, do you have to be convicted of a crime for the UPC to bar you from taking? No. It uses a preponderance of the evidence standard. What if you are convicted under the UPC? It is deemed as being conclusive. If there isnt a conviction, under the UPC, you can go to court and show by a preponderance of the evidence for the elements of the crime. It is not a preponderance of the evidence that they would be convicted. You just have to show the elements of the crime. What is the effect of a conviction in GA? A conviction is conclusive. Can you apply the GA in the absence of a conviction? You have a clear and convincing standard. This is higher than the UPC. How does the Chinese system work? (p. 131) The ct. can look at the conduct of the people involved. What kinds of behavior might you want to punish and award? o If the person was elderly, you look to see who took care of them, supported them, any evidence about who the decedent cared about, etc. o Why would you want to punish? If the spouse was abusive, if the child abandoned the parent, etc. Are there any advantages of the Chinese system? The decedent can make that sort of decision by leaving a will in the US. If they are incapable of doing that, then the will may be invalid. Can you foresee any probs w/ the Chinese system? It is hard to bring in all the witnesses and figure everything out. People would be arguing of who did what. It wouldnt be good for family relations. It would be extremely burdensome. DISCLAIMERS At common law, could you disclaim property to prevent it from passing to you? Can you disclaim intestate or testate property? You can disclaim testate property. However, you cannot disclaim intestate property. If you disclaim intestate property, it will go through as if you didnt exist. A will is more of a gift. Therefore, it is like you are disclaiming a gift. If it is intestate succession, you are getting it b/c of statutes. If you have a disclaimer under the UPC, you treat the disclaimant as if they predeceased the decedent. The GA statute is 53-1-20...a person renouncing the property is treated as predeceasing the decedent. How can you use a disclaimer to say on estate taxes? o HYPO: Suppose there are two siblings, O and A. A has a child B. O dies w/o any descendants. A can disclaim his share so it will go directly through child B. So, B will have more money. By disclaiming the inheritance of A, A can prevent the property from going through his estate, so it will go to B. For this to happen, there are some IRS requirements, such as it has to be disclaimed w/in 9 months. How can you use a disclaimer to avoid creditors? If they have some sort of debts and they didnt want the creditors to get the money, they could disclaim so it would go straight to the child and the creditors couldnt get at it. Problem (p. 134) 37

If A disclaims, what distribution will be made of Os estate under the UPC? o You treat it as A has having predeceased. o Under the UPC, you start at the first living generation. So, the first living generation is the four kids of A and C. This is b/c A is treated as being deceased. This doesnt seem fair b/c they are taking away part of Cs share and giving it to As kids. So, instead of C getting 50%, he only gets 20%. The UPC deals with this problem under UPC 2-1106(b)(3). If the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died. So, all that is going to pass is the interest that they would have disclaimed. So, only the 50% of A will be divided among the four children. This is b/c A was only entitled to 50%.

Drye v. United States He stood to inherit $220k b/c he had a big tax bill and he didnt want the inheritance to go to the IRS. So, b/c of his disclaimer, it passed to his daughter. When she gets the money, she funded a trust w/ her and her parents as the beneficiaries of the trust. A spend-thrift trust is a trust that has provisions that make it impossible from creditors to get the money in the trust. So, they can only get it once he receives the money from the trust. The ct. said that by disclaiming, he exercised dominion over the property. So, the federal tax lien attached to the inheritance he disclaimed. The language they interpreted was property and rights of property. So, the ct. had to decide whether he had property or a right to property for the lien to attach. He had a right to property b/c he had an unqualified right to get his mothers estate. What about the fact that the daughter created the trust? It wouldnt have made a difference b/c he had a right to it. Troy v. Hart He is in a nursing home, which is paid for by Medicare. o What is the difference b/t Medicare and Medicaid? Medicare is kind of like health insurance for retirees. It is a fairly universal program. Medicaid is more of a welfare program, so it is designed for people of lower means. So, how do you apply for Medicaid to pay for nursing home? He would have to submit evidence that he needed the money. There are regs specifying the asset limits that you own and the money you receive. What if you have too many assets? What do you do to become eligible to Medicaid? You have to spend them down to the threshold point. He had appoint Troy as his atty-in-fact (it deals w/ the power of attorney document). A power of atty is a document that appoints an agent to do certain things for you. Here, Troy is appointed to deal with Ls financial affairs. The case concerns w/ what happens when Ls sister dies intestate w/a $300k estate. She had three heirs, L and two sisters. Assume that L takes 1/3 of her estate. If he gets the money, he becomes ineligible for Medicaid. Did L actually take money from his sisters estate? No. He disclaimed it through the sister. The sister tells him to disclaim the inheritance. So, what happened to the $100k? It was divided w/ the two sisters. Under the Medicaid regs, what was he supposed to do once his disclaimed the inheritance? He was to disclose it to the system. What effect could a disclaimer have on his effect for eligibility? He is treated as if he got the money. His eligibility will be treated as if he took the inheritance rather than disclaiming it. 38

So, what did Troy do when he found out about the disclaimer? He hired an atty to represent L. o The attys are trying to rescind the disclaimer and get the sister kicked out of being personal representative. So, in response, the sister got her own atty (Vale). V went to see L and requested that he withdraw the litigation and revoke Troys power. Does Troy get fired? No. Someone at the nursing home contacts Troy. Does the ct. uphold the disclaimer by L? Was it an effective disclaimer? The ct. said that it was effective. o But what does it do about the fact that Medicare paid for his nursing home when he wasnt entitled to it? His sister has to pay it back. They make a constructive trust on the disclaimer assets and it goes to repaying Medicaid.

On p. 140 (note), Medicaid pays for more than 50% of nursing home residents. Medicaid sometimes pay for the care, even when there is an adult child that can pay. Should Medicaid pay for people who have adult kids who could pay for them?

HW for Tuesday: pp. 140 157

7 February 2006
The note on p. 140 says that Medicaid pays for more than 50% of nursing home care. Should the govt. require the kids to pay for the nursing home care? Looking at references on bottom of p. 140. A lot people would transfer assets to kids and others to get themselves to the point to get Medicaid to pay for their care. After the statute was enacted, it was amended. Why? It caused a very unfavorable reaction for some segments of the population. What is the criminal provision that still exists? It charges the person for knowingly or willingly counsel or assist an individual to dispose of assets. This seems like it would catch attorneys. In the facts of Troy, did the atty Vale violate the statute? It was a somewhat different situation b/c L had already signed away his rights to the money. If you are representing Value, what would be your argument that he didnt violate the statute? He didnt directly assist L to dispose of assets. Vale could argue that I wasnt trying to get him to dispose of the assets; L had already disposed of them. If he wasnt violating the criminal statute, are there any ethical questions that could be raised by the atty going to the nursing home and trying to get him to withdraw the litigation? Vale wasnt Ls atty. He was not contact. He was brought there by the sister. Is it impt that L had an atty? Yes In WA State, you need to be careful about having any communication w/ an opposing party if they had an atty. So, you should go to that persons atty before talking to that person. So, Vale may have messed up there too.


Who can make a will? UPC 2-501: A person who is 18 years old or more and who is of sound mind. 39

GA 53-4-10: The person must be over 14. The capacity requirement says that they must be mentally capable; they cant be under some legal disability arising either from a want of capacity or a want of personal liberty. Common Law (p. 141): o The person must understand the nature and extent of his or her property. He or she needs to understand what is the property that they own o Must understand the natural objects of his or her bounty They have to know who his or hers relatives are o The disposition that he or she is making of that property It would refer to the actual mechanics of making the gifts He has to know that he is devising a particular piece of property to a person So, he has to know that he is making a will o Must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property He must be capable of putting the whole plan into action. He has to understand the big picture of the disposition.

GA 53-4-11(a) gives us a further definition for testamentary capacity (testator has a decided and rational desire as to the disposition of property). How do you think this standard compares to the common law standard? It tends to be a more broad, less specific standard. The common law gave us four elements. Slaughter v. Heath (127 Ga. 747): A person has testamentary capacity who understands the nature of a testament...the property subject to disposition and the ... related to him...any intelligible... Estate of Wright The testator of Lorenzo Wright. In the probate process, the ct. reversed the order of the lower ct. Admission to probate of the will having been denied on the ground of testamentary incapacity. So, they are appealing the ct. to cause the will to go to probate. Did the decedent do some odd things? Yes. If you were trying to argue the case that he lacked testamentary capacity, what things would you bring up? He was a chronic drunk. He gave a fish covered in kerosene to a friend; and he thought it was a joke. (Claiming to give people gifts when he hadnt done so). The ct. decided that the evidence of all these witnesses was far below the standard for impeaching the capacity of a testator. There is a really high burden of proof that the contestant has to meet to establish a lack of capacity. On p. 144 (bottom), testamentary capacity cannot be shown... GA 53-4-11(d): Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent w/ the capacity to make a will. o This is similar to the ct. in Estate of Wright. o There was an 1849 case that the ct. was decided about Lee. They said that Lee was eccentric. He had 14 teeth extracted b/c he felt that the disinherited relatives were living in his teeth. The ct. held that he had testamentary capacity. So, what makes someone unable to execute a will? Is there a clear distinction b/t insanity and sanity? No Can a persons mental state change over time? Yes. 40

Assume that the line b/t insanity and sanity is a difficult one to draw. Are there any dangers in allowing a ct. to make that determination? Sometimes we dont trust a jury to make the right decision b/c we assume that juries dont have the competency to make the right kind of judgments. Thus, we would doubt that a jury could make the right decision. Could the jury use the label insanity when in fact they just disagreed that they didnt like the way the person disposed of their estate? Yes. Note. In a large percentage of cases, where the decedent has done something weird w/ his property, it is not unlikely for a jury to find that the person lacked the capacity. Why require a sound mind as a condition of testamentary capacity? You want to protect people who would be disadvantaged by an impulsive decision. It offers a degree of protection to family membersthey want them to make sure that the decedent left the estate to a decedent person. See pp. 146 148. There is a piece of mind that you can develop. Some people can tell that they are starting to lose their mental capacity. It can offer them some peace of mind if they know they already have a will that they want. What is the relationship b/t testamentary capacity and the capacity to contract (deal w/ property through gifts)? It is easier to have capacity to make a will than to make a contract. Why require someone a person to dispose of all of their property by will when at the same time they cant dispose of their property by contract? The will can still affect their intentions in some way. A person is less likely to suffer from a bad decision if it is a will. If someone makes a bad contract, they may have to suffer the consequences during their lifetime; it is hard for a person to redo. If a person makes a bad decision in their will, it wont cause them any harm b/c they are already dead. Under Redfern, it says that you may not be able to complicated wills if the person is not totally capable. What is a delusion? It is a false conception of reality. What is an insane delusion? It is against all evidence and reason to the contrary. Even if you present all the evidence, they will still contest it. In re Strittmater The ct. concludes that she was insane. What were her views that caused her to be declared insane? She viewed men w/ insane hatred and wanted all males to be put to death a birth. They had evidence of her dementia b/c she made notes in her books. She called her mom a moronic she-devil. She called her father an ignorant... She killed a kitten and smashed a clock. When were most of the writings written? Most of them are dated 1935. She executed her will in 1944. Was she always upset w/ men? No. She was okay at times, like when dealing w/ a voyeur. This could be a perfectly reasonable conclusion based on her experience. Suppose that Ms. S was someone whose mental state varied. Sometimes she is perfectly reasonable and then other times she is in the grip of her insanity. How do we know that the will was executed during on the insane moments? The ct. assume that b/c of how she disposed of her estate, she must have been crazy. o However, she talked about leaving her estate to the womens group. She was active in the group. 41

o She had no living relatives except for some cousins which she rarely saw during the last part of her life. Assuming that she was insane, should we take into account the fact that she realized what she did and left it in place? In that month, she probably realized what she had done and felt okay with it. Do you think this case may have been influenced by the fact that it was a male judge? Yes. Do you think the case would come out different today? Yes b/c her being committed to that organization wouldnt seem so extreme or out-of-the-ordinary.

In re Honigman Decedent left his wife the minimum that the statute allowed and then a life estate for the rest of the estate. When she died, it would go to the rest of the surviving brothers and sisters. What is the legal basis for challenging the will? His insanity What was his insane delusion that was presented as evidence? What evidence was presented to show that this was an insane delusion on his part? He says that hes sick in the head, sees mental health professionals, etc. He wouldnt let her answer the phone. He had severe control issues. He left their residence for many years. He would claim that he heard sounds that he heard men in the house, etc. Was there any evidence offered that could suggest that it was a rational belief that she had an affair? She received an anniversary card didnt mention the husband; it wasnt even on their anniversary. She always answered the phone. He thought that he saw a man go in the house one night. Could you argue that yes he had a delusion, but it really didnt affect the will? Could you argue that it was a rational way to dispose of his property? Yes b/c the wife was fairly well taken care of b/c of her assets. She is independently wealthy; he has some relatives who arent. So, he is trying to take care of his family. GA 53-4-11(c): An insane individual generally may not make a will except during a lucid interval. o If you are insane, you can still make a will if you are under a lucid interval. o What is all of this stuff about a monomaniac and monomania? Monomania is pathological obsession w/ one idea...we are talking about a partial insanity relating to a particular subject. Note 1, p. 154-155. Could you think on this record that the jury was sympathetic to the wife? Yes b/c she worked throughout the marriage as well. o If the will is struck down, under NY law, she would have received of the property outright. Note 2, p. 155. There is a distinction b/t insane delusion and mere mistake (dont prevent reformation of a will on the ground that there was some mistake made). Why isnt a mistake by a testator a ground for changing a will? If they found out about the mistake, they had time to change it. o If we allowed people to challenge a will on mistake, there would be lot of evidence fabricated about mistakes, etc. o How do you decide whether a particular idea is an insane delusion or a mere mistake? The length of time makes it seem like it is a delusion. o In a GA case, the ct. says there is an insane delusion...incapable of being reasoned out of that exception...Ct. focuses on the inability to reason them out of the belief that is challenged. LIVING PROBATE (Ante-mortem probate) People who witness it are held to a higher standard. In a living probate proceeding, it happens while the person is still alive. So, there is more evidence. It a proceeding were you put on evidence and determine testamentary capacity while the person is alive. 42

Why would some jurisdictions permit it? It will cut down on probate contest when they are dead. Could it discourage meritorious claims? If someone really cares about the person, they may not try to bring them out. Someone who really cares about the person might not want to put the person and the family under that stress.

HW for Thursday: pp. 158 169, two GA Cases on eReserve (Hudson and Andrews)

9 February 2006
HYPO: My father wrote me out of his will. I convinced him to write me back in his will. I influenced him, but there was no undue influence. Undue influence is coercion. You substitute your own will for the will of the person (testator). Estate of Lakatosh A neighbor ends up being the beneficiary of the will. He gets all but $1k of a $268k estate. He met her when she was in her 70s. It seems like he was a handyman and helped her around w/ her appointments. They say each other once or more a day. He suggested to her that she should give him power of attorney (control over financial matters of her estate). It gave him the ability to help her w/ certain financial transactions. Also, while doing the power of atty, she executed a will as well. She executed this new will w/in months of knowing him. How had Jacobs used the power of atty? o He start converting her assests to his own use. He gave $72k to Patricia Fox. What he taking good care of her at the time? No. She was leaving in squalor. The will was denied probate. Was there any direct proof of undue influence? It seems like it was all circumstantial evidence. We have no evidence that he pressured her. However, in many of these cases, you dont have direct evidence of undue influence. The testator is dead usually and cant explain his reasoning. Under certain circumstances, they will shift the burden of proof to the proponent of the will to show that there isnt undue influence. There are three things required to shift the burden of proof: o Confidential Relationship: The testator rests special confidence in the person somehow. Evidence in this case: He was the power of atty. The will was written by his cousin. She had come to depend upon him; and he was the only person that she had substantial contact with for while. Is a confidential relationship by itself enough to assume undue influence? NO. There has to be something else in addition to the confidential relationship. o Person Enjoying Relationship Received Bulk of the Estate: He received all but $1k. o Decedents Intellect was Weakened: She was an elderly person, unable to take care of her home, etc. Since the three were met, the burden shifted to him to prove that there was no undue influence. Could he meet that burden? NO GA 53-3-12: 43

o What is the GA law w/ respect to undue influence? A will must be freely and voluntarily executed. A will is not valid if anything destroys the testators freedom of volition, such as... Hudson v. Abercrombie Summary of the facts. She executed a will where she would leave 1/3 of the estate to... o Abercrombie wrote the will. He was a judge and her friend. o That will is not being offered for probate. The will that is offered for probate is the will that said that she wanted to leave everything to the man and his son. o The executor of the will was his wife. Andrews v. Rentz Here, the testator is B. R is the administrator. R was just a friend who took care of him after his wife died. She did household chores, etc., seeing him everyday and sometimes as often as 3 times a day. Any evidence going to whether Mr. B is susceptible to undue influence? He began to show brain atrophy, which caused forgetfulness. Also, he depended on his wife a lot. Before his wife died, she made all the decisions. What happens w/ the wills in this case? o The court upholds the wills. Both of these cases involve a confidential relationship. Under GA law, when will a confidential relationship give a presumption to undue influence? See Abercrombie p. 668. A person obtaining a benefit...not a natural object of the request of that person. Confidential relationship w/ someone that you would not expect to receive something from the estate; and the person asks for a part of the estate. Was there enough evidence of undue influence to submit evidence to the jury? Is there a jury issue to undue influence? In Hudson, there was a jury issue. In Andrews, there wasnt a jury issue. There is a lot more circumstantial evidence in the Hudson case. There is a difference in degree of involvement in the will. Abercrombie actually drafted the will. In Hudson, R was less involved in the construction of the will. If we applied the Lakatosh standard to the Rentz case, what would happen? Aftermath of Abercrombie: There was undue influence. The will was denied probate. Abercrombie was serving as clerk for her husband, the judge. The judge who originally granted summary judgment for the Abercrombie was a cousin of Mrs. Abercrombie. The Abercrombies wanted Mrs. Russells estate to pay for their attorneys fees. Her estate didnt have to pay for it. Lipper v. Weslow The plaintiffs are product of her first marriage. Family Relationships: o 1st Marriage: Had one son Julian Weslow. Julian marries Bernice. They had three children, Julian, Julia, and Alice (who are the Ps). o 2nd Marriage: Married Mr. Lipper. She had two children, G. Frank Lipper and Irene Lipper Dover. The children are the Ds. 44

o 3rd Marriage: Married Max Block. No kids from this marriage How old was Sophie Block when she died? 81 o She also executed the will when she was 81. She died 22 days after executing the will. The grandchildren are claiming undue influence by Frank. Frank is her son as well as an atty. He drafted the will. Looking at Clause 8 of the will on p. 163. It is a no-contest clause (it discourages will contest). o Why didnt this clause not effective work? They didnt receive anything, so they had nothing to lose. o A no-contest clause 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 How could we have made this clause more effective? She could have given them something in the will and that would have solved that issue. o Is a no-contest clause valid? Yes. UPC 2-517 and 3-905 o When is a no-contest clause enforced? There has to be probable cause. o The danger of enforcing a no-contest clause is that you will head off meritorious claims. So, the UPC says that the no-contest cause wont be effective in that case (if there is a meritorious claim). Why would someone contest a will? They want to get a settlement. So, they just want the estate to pay them off to make them go away. GA 53-4-68(b): A condition in terrorem (a no-contest clause) shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem (no-contest clause) is violated, in which event the direct in the will shall be carried out. o If you want to put a no-contest clause in in a GA will, what do you have to put in to make it enforceable? You have to say where the property goes if someone brings a suit in violation of the no-contest clause. So, if anyone loses their benefit under the will b/c of a will contest, you have to say where the property goes. o The earlier version said that there had to be a gift over to some other person if it was violated. Now, you dont have to make a gift over. You just have to say what will happen with the assets. HYPO: Suppose I file an action that seeks construction of a will. There is a dispute of how it is to be interpreted so I ask the court to determine my rights under the will. Is that a will contest? o RedFern: An action shouldnt be viewed as violating a no contest clause if you are not putting doubts into the will. If you are simply asking them to clarify the will, then you are okay. Snook v. Sessions (GA Case) Was the testator susceptible to undue influence? NO b/c she was of sound mind, good health, and in excellent physical condition. Did Frank have any motive for exercise undue influence? He could take more under the will this way. o He does get a bigger share. o So, arguably there is a financial motive. Also, there is evidence that he didnt like his deceased half-brother. Also, the will makes an unnatural disposition (you would think that the estate was divided equally among the children, but here one of the kids is left out). Did Frank have the ability to exercise this influence? Yes. He lives next door. He has a key to the house. Also, he is an atty. Frank had a confidential relationship to his mom. What evidence here would point to his confidential relationship? An attorney-client relationship is a confidential relationship. B/c he has a key to his house, it would indicate that they had a close relationship. So, he must be doing something to help her around the house. 45

Apart from the no-contest clause, was there anything done to permit a contest? She gave an explanation of why she is making the decision. (See Clause 9. It explains why she didnt leave them anything.) What was her argument? They didnt take care of her. After her son died, his widow and the kids become unfriendly and hadnt seen her. Do you think that Clause 9 was a good idea? It is a good idea b/c it explains why she did it. If there were not explanation, there could be a stronger argument for undue influence. This helps explain her unnatural disposition. If you were the atty for the grandchildren, what would you argue about this portion of the will? The language in Clause 9 sounds like it was written by an atty. This explanation isnt Mrs. Blocks, but Frank. What does the atty do with the flowers argument? o They said that they sent flowers more than those times and that she didnt receive them. Maybe Frank interfered. What are any possible dangers about putting an explanation in the will? o A clause like this could create hard feelings; and possible provoke a will contest that wouldnt have occurred otherwise. A person may contest b/c they want to vindicate his name. o Can you file a libel action against an estate for something said in a will? Yes. There are testamentary liable cases. You Is there another way that you can accomplish this purpose besides drafting a clause in the will? o She could handwrite herself and sign it. You could have the testator write a letter explaining why they decided to dispose property the way they did. Under Evidence Rules, under hearsay, there is an exception for then-existing mental state. o She could do a videotape and have the testator on camera speaking about why they disposed of the property the way they did. The jury said that there was undue influence. However, the ct. said that there was no sufficient evidence of undue influence. Did the ct. get it right? Do you think there was enough evidence to create a jury issue? Yes. There may have been enough suspicious circumstances for there to be undue influence.

HW for Friday: pp. 176 193

10 February 2006
We were talking about Lipper v. Weslow Lipper v. Weslow Was it ethical for Lipper to draft the will? Should a lawyer be able to draft a will in which he is one of the beneficiaries? Here, he was the son of the woman drafting the will, so he might be okay. Model Rule 1.8 says (see p. 169) o So, it might have been ethical. Presuming that it was ethical, was it the smart thing to do? Not really. The fact that he drafted the will gives a lot of evidence to those that contest the will. If you were Frank, what would be a good way of dealing with it? Suggest that the mother have the will done by some other unrelated atty, someone who gives independent counsel and advise Seward Johnsons Estate (p. 176) 46

What is the estate plan that was set up in the final will that is challenged in the litigation? It was pretty similar to the previous wills. In terms of tangible personal property, it goes to Basia. He sets up a trust for her. The main trust in favor of Basia contains $225 million. What rights was she given under the trust? You could pull out up to $1 million annually in the principal a year. Also, she gets the income of the trust. Who are the three trustees? Seward Jr., Basia, and Nina (the atty) o They can also withdraw any amount they thought appropriate. What did Seward Jr. get under the final plan? He got the house plus $1 million. None of the other kids get anything. The servants get either $5k or $10k. There is also a $75 million trust. The interest goes to Basia. Depending how she felt, at the time of the trust, she can give it to whoever she so chooses. o So, she gets a life trust and a power of appointment. Who is challenging the will? The other children and the Harbor Branch location What is their theory? Basia and Nina exercised undue influence on the father Note 1, p. 183: Do you think that the lawyers did enough to prevent will contests. o They wait until his health is in question, when a doctor is seeing him everyday, and wait until that point to determine whether he is of sound mind. See parts (a) and (b) on p. 183. Wouldnt it be good to have some evidence about what Seward wants? Yes. o Once suggestion they make is for the testator to have a handwritten letter describing what he wants. In this case, Seward wasnt in a condition in which he could have written a hand-written letter. o What about the possibility of a videotape? It may seem a little to contrived at this point. It may actually show that he looks to old. You dont want it to show that he is easily distracted and susceptible to undue influence. o Is there another way to record his explanation of the disposition w/o having him look bad or sound susceptible? If you dont want to go the videotape route, you could get a stenographer and get them to make a transcript of the interview. You could have people be witnesses to it. What about part (d) on p. 184? What about a will contest? o He didnt want to provide anything for the children at all. o All of the kids have trusts w/ money in them still, but they may still want more. See p. 184, note 2. o What about drafting a will that names you as an executor? o Why might there be an ethical issue? Can you see any issue to drafting a will and then saying that you are the executor for the estate? o Why might a lawyer want to be an executor? It might be a person in a particular good position that knows what happened. They know what happened when the will was being written. o Does an executor receive any benefit of the estate? They get executor fees. o If the estate needs legal representation, the executor names which lawyer will represent the estate. So, the lawyer could set himself up with that job or one of his friends. o Can you foresee any conflict of interest problems? o How could it actually undermine the intent of the testator of the estate for the lawyer to name himself as an executor? It is evidence that can be used against the will. o Can you, if you are talking to a client about who to name as an executor, and you are thinking I want to do it, can you give disinterested partial advice? No. B/c the potential financial interest of being executor may cloud the lawyers judgment about helping them choose an executor. 47

o If a lawyer knows that he is going to be the executor, how will that affect his drafting of the will? You will think about what powers the executor will have, whether it will be overreaching, etc. o The executor also could file a malpractice claim against the lawyer who drafted the will. What if the atty who drafted the will is also the executor? That could be a problem. Would he really want to assert a malpractice claim against himself? NO. GA Bar Advisory Opinion 91-1 This was at a time when the content of the rules was a little different from now. It starts w/ Disciplinary Standard of Conduct No. 30. o Lawyer shall not accept or continue employment if the exercise of his profession judgment on behalf of his client will be or reasonably... Then there is EC 5-6. o An lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety. You should not try to influence a client to name you as an executor, etc. If the client wants you to serve in one of those capacities, you need to fully disclose to the client the possible conflicts of interest. o All potential choices of executor/trustee, their relative abilities, competence, integrity, and their fee structure... o The nature of the representation and service... o The potential for the atty executor... o An explanation of the potential advantages of seeking indpt legal advise... After telling the client about the possible conflicts of interest, you get the client to sign a form. Note 2, p. 184. o Was it ethical for her (Nina) to ask for more executor fees than she asked for earlier? She didnt come up with her on her own. Her superiors told her to do it. o It would be had to deal w/ the client about asking for more money. o Was it wise for her to ask him to remove the cap on the executors fees? As an atty, when thinking about how to represent the client, you have to foresee the possibility that someone will o By asking for more money, that contributes to the will contest b/c it shows that he was susceptible to the undue influence. o Seward considered Nina as his friend. He thought he had a young lawyer that he trusted. He wanted Nina to be happy so she could represent him as vigorously as she can. o What if he didnt want to increase the fees? What could you do to minimize this issue in a will contest later on if he really did want to increase it? He could record some evidence of why he would agree to something he didnt have tothe increase in the fees. Note 3, p. 184. o Nina didnt want to be a witness on the will. o The purpose of the witness is to provide evidence to the jury against things like undue influence; so by having other people involve, it provided better evidence. You want to have people that look less interested in the outcome. In some states, it is common for attys to name herself as atty for the executor. o Representing the executor is like representing the estate. o However, an executor could be held personally liable for actions taken as an executor. o You dont want to saddle the executor w/ an atty that he didnt choose. The executor may want his own atty. 48

o The authors dont think this is enforceable. Note 4, p. 185. o Should Seward and Basia have had different attys? Yes b/c it looks like Nina and Basia teamed up against him. o Plus, there may be some issues that he wants to discuss w/o Basia in the room or w/o her laywer finding out about. o Is it possible for two married people doing estate plans, have different interests? Yes. o It is fairly routinely done that a lawyer will represent both spouses in estate planning. However, as an atty, you have to make sure that they have joint interests and one is not trying to hide something form the other. Note 5, p. 185. o Why wouldnt big firms be in the forefront of trying to get is cleaned up? Some of their lawyers will be receiving kickbacks as well.

FRAUD HYPO: Suppose my sec. gives me a stack of letter of recommendations. I whip through them and sign them very quickly. It turns out that one of the documents was a will in which I left everything to my sec. Could my husband challenge it? Yes. This is fraud in the execution (fraud relating to the nature of the document itself). HYPO: Suppose SPCA calls and asks me ot leave money for the pets in India. I leave $10k in the estate to the SPCA, and the rest to my spouse. What if my SO calls and finds out that the SPCA is a lie. This is fraud in the inducement (the person misrepresents the facts, thereby causing the testator to execute a will). HYPO: What if SPCA can show that I already knew that they were lying? That is good for them b/c there is a causation issue. You have to show that the lying caused the actual inducement. Puckett v. Krida Krid and Reeves are nurses that provide round-the-clock care for the nurses. The alleged fraud is that they said that the niece wanted to put the decedent in a nursing home and that the niece wants use up all her money. How could they have deceived the testator? They listened to phone calls, keep the neighbors away, etc. Anything to keep the testator isolate. The other ground for the challenge was undue influence Latham v. Father Divine The Ps are the cousins of the decedent. They cant contest the will b/c it has already been probated. Would the Ps have had standing to contest the will? It is not really clear. What if they werent heirs or beneficiaries under the will? NO The Ds are Father Divine and his church. What are the Ds supposed to receive under the will? She left them $350k. If the Ps arent challenging the will, what kind of claim are they making? They are claiming that there was a false representation and physical force to keep her from signing a will that would have given the estate to the cousins. 49

o She was planning to sign a new will, but the Ds prevented her from signing it by getting a doctor to kill her. Assuming the allegations are true, does the ct. find any remedy that would be available if they were true? There would be a constructive trust. The church would have to put it in the constructive trust. o A constructive trust was also discussed in the Mahoney case. In this case, the woman killed her husband. The property passed to the wife under the statute, but they put it in a constructive trust for the parents. The ct. made a constructive trust b/c they had to give effect to the statute. It will pass to the killer, but we will use a constructive trust to keep her from profiting from her wrong. o The ct said that they cant void a will that went through probate. So, instead of voiding it, they are going to make a constructive trust for the cousins. Did the new will that was going to be made satisfy the Statute of Frauds? No b/c she never signed it. So, legally the new will is ineffective b/c it wasnt signed. The will that she didnt execute was going to leave the Ps $350k. Suppose the Ds had only received $200k. So, it doesnt completely make the P whole. Could the Ps sue Lyons next of kin (the people who got the rest of the estate)? No. That would be imposing the terms of the will on its face and they cant do that. They can only take away what the church received. Note 3, p. 193.

TORTIOUS INTERFERENCE W/ EXPECTANCY (we didnt have to read this) The authors give the example of Anna Nicole Smith. The ct found that her stepson, the son of her husband, had tortuously interfered with her gifts and her receiving the estate and issued a judgment against the son for $88 million. Read notes 2 and 3 on p. 197 Since the book has been printed, the S. Ct. will hear the case.

HW for Tuesday: pp. 199 215


14 February 2006
Talked about the execution of a will in real life The precise requirements vary from jurisdiction to jurisdiction. However, there are core requirements that are in all jurisdictions: It must be in writing, signed by the testator, and attestation by 2 or 3 witnesses. An oral contract is often enforceable, but an oral will isnt. Contracts dont require witnesses, but will dont. Why are we stricter on wills? There are several different rationales for why we have the formalities of wills: Ritual Function o You want something to make the testator aware that they are doing a legally significantly act. o How do the formalities serve that ritual (cautionary) function? The ceremony of it, the number of people present, etc. make it seem like it is more impt here. 50

o Can signing form a ritual function? In a sense yes, but there are other things that we sign that arent quite as impt. o We are familiar w/ the idea from other contexts that signing something is imp. Evidentiary Function o All of the formality helps establish that the testator is competent. o What in the ceremony might to do that? There are witnesses in the room that can testify on what they thought the testators intent was. o What about the fact that it was in writing? You know exactly how the testator wanted to dispose of the property. Protective Function o They help provide a barrier against undue influence and fraud. o If there are witnesses, they can see what is going on and protect the testator. The attestation requirement means that you have to get more people involved, so it might be harder to exercise undue influence and fraud. Some jurisdictions require that the witnesses be disinterest. Channeling Function o If all the documents look more or less the same, then it is more likely that the testator knew that he was leaving his property in a will. o There is a standardization of the way things are done. If you want to leave your property, there is a way to do it. You dont have to be creative.

Footnote 2 (p. 202). What is a nuncupative will? It is an oral will that is used in very limited circumstances. There has to be three witnesses. It is only for property of a small value. It can be made only during a persons last sicknesses. Sometimes people end up on the death bed w/o expecting it, such as an accident. Are there any probs of a nuncupative will? You might have disagreements or witnesses may not have heard the same thing. You may have disputes for reasons of fraud about what a person said. You may have to worry about undue influence. Also, the person may not be thinking as clearly as in other circumstances. GA used to permit nuncupative wills. There had to be 2 witnesses, which had to write down what they heard w/in 30 days. However, this was revoked in 1998 when the revised the GA Probate Code. In Re Groffman The decedent had a second wife and some children from a first marriage left behind. Mrs. G doesnt like the provisions of the will. What is her legal theory for challenging the will? Both the witnesses were not present together at the same time when G acknowledged his signature on the will. o How did that happen? They were all together at a dinner party and they decided to attest the will in another room. One of the witnesses was on crutches so he didnt get there as quickly as the other one. So, they arent in the room at the same time. Mr. G didnt sign the will in front of the witnesses. Is that a problem? No. Either he had to sign in front of them or acknowledge it in front of both of them at the same time. What about the fact that the witnesses didnt sign the attestation at the same time? They are there both for the acknowledgment but not when they sign. o The statute requires them to sign in the testators presence but not in each others presence. What as the consequence of the testator to acknowledge his signature in the presence of both of the witnesses? The ct. held the will invalid, so it all goes to his 2nd wife by intestate succession. Is there any doubt that this document was intended to be his will? No. 51

See Note 2 on p. 208. (Doing the note under Groffman) Was the ritual function satisfied? They all knew that the purpose of the dinner party was for him to sign the will. What about the evidentiary policy? It was valid and it was what he wanted. There is evidence of his intended disposition; it was in writing. We know that his capacity was fine b/c the witnesses signed. What about the protective function? He knows that it is a legally significant act. o Is there anything to protect him from undue influence, fraud, or duress? There were multiple witnesses. What about the channeling function? For the most part, he has followed the accepted coursea written will prepared by an atty, the atty gave him instructions about how to execute the will, etc. It seems like he has left a good will. Is there any justification for denying probate to Groffmans will? If you get too lax about it (following the requirements of the statute), then later down the road people may become more and more careless. Also, a rule is a rule. UPC 2-502(a) Would Gs will be admissible under the UPC? Under the UPC, the requirements are: o Will has to be in writing o Singed by the testator o Singed by at least two individuals, each of whom w/in a reasonable time after he witnessed either the signing of the will or the testators acknowledgement of that signature or acknowledgment under the will So, under the UPC, Gs will would be admissible. OCGA 53-4-20(a) an d(b) Have we satisfied the GA requirements under the facts of this case? o Under (a), we do have the writing requirement the signature requirement. o Section (b) is about the attestation. It says a will shall be attested and subscribed in the presence of the testator by two more competent witnesses. So, they are okay. They dont to be there are the same time. They just have to be in the presence of the testator. Stevens v. Casdorph This was Mr. Millers will. He was elderly and confined to a wheelchair. To execute his will, he went to the bank. He signed the will at the bank in front of Ms. Pauley. The witnesses work at the bank as well. She walks over to the witnesses and asks them to sign the will. The ct. doesnt admit the will to probate. It was determined not to meet the formalities. What was the problem w/ the will? The signatures shall be made or the will acknowledged by him the presences of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other o They really werent there together in presence. How was this execution in violation of the statutory requirements? See pp. 205 206 o The testator didnt acknowledge his signature to the witnesses o They didnt see the testator sign o They didnt see each other sign or acknowledge their witnesses 52

Do you think that that ct. was compelled by the language of the statute? o You could construe presence to a wider definition rather than just right there next to one another. They were all in the same bank. The witnesses were tellers. It was a small bank lobby. Could you argue that the circumstances satisfied the statute or do you have to omit part of the language of the statute to make it work? You could argue that he signed the will in their presence. You could argue that presence means the area. There were present in the lobby at the same time. The proponents said that the signing should fall under Wade. o However, the ct. doesnt by the Wade argument. See p. 206. Wade said that where one of the witnesses didnt sign in the others presence but acknowledges his signature, the will is valid. However, in this case, no one acknowledged their signature. How would this turn out under the functions? o Ritual Function: He signed the will. It was in writing. o Evidentiary Function: The witnesses really didnt talk to him so they didnt know his state of mind. o Protective Function: Coercion is hard to pull out in a bank lobby. So, he doesnt need protection. o Channeling Function: He had a standardized will.

The basic problem in the above cases is the simultaneous requirement that is in some jurisdictions but not others. Why do some jurisdictions require the simultaneous requirement? It can add to the formality and cut down on the undue influence possibility. Also, both witnesses are able to testify about the same set of facts. Line of Sight Test: The testator would be able to see the witness if he were to look. He doesnt have to actually look, but the person has to be in their sight. Conscious Presence Test: The witness is in the presence of the testator if the testator, through sight, sound, hearing, or general consciousness of events, comprehends that the witness is in the act of signing. Under the UPC, is presence ever any issue? This is a conscious presence test. Who has to be present in the presence of whom and for what purpose? The UPC contemplates the possibility that the testator may not be able to sign, but is getting someone to do it for them. See 2502(a)(2) The witnesses are going to have to witness something either the signing or the acknowledgment of the will. The witnesses dont have to be present for one anothers signing. What about the GA Code? When is presence an issue? 53-4-20(b) A will shall be attested and subscribed in the presence of the testator. 53-4-20(a) This applies if a person is signing for the testator. GA S. Ct. (Newton v. Palmor) In this case, the witnesses attested the will when the T was bedridden. One of the witnesses signed outside of the bedroom, to which the T couldnt see her. The ct. held that it isnt necessary that the T see the signing of the will. It only has to be possible for the T to see it. 53

o This sounds like the line of sight test for presence. In that case, the ct. decided that it was a jury issue as to whether the witness was in the presence of the T. This was b/c of the attestation clause in the will.

See p. 208, problem 4(a) If you were in a jurisdiction that had the line of sight test, will the will be probated? o No. What if it was a conscious presence test? Yes. If it was on speaker phone, you might be able to hear it. Also, if he is well enough to know what is going on by consciousness, he may be okay. o However, can you really say that is in the presence of the T? It is more in a general formality of the ritual. You dont have to actually see. The people are generally around. However, it is giving the word presence a really broad definition. o The ct. held that telephonic presence is not present. You want the testator to be able to know that the document that the witness has in front of him is really the will. You cant do that if someone is just on the other end of the phone. However, this could change b/c of camera phones. Under the UPC, would this attestation be permitted? o No. This is b/c the witness didnt witness the signing of the will. Also, the witness didnt witness the Ts acknowledgment of the will or the signature. o In this case, a video phone may have made a difference. HYPO. T is in a stupor. The atty arouses him to sign the will w/ two witnesses. T signs and then falls unconscious. The witnesses then sign the will. Did the witnesses sign the will in the presence of the T? No. The ct. said that the T has to mentally and bodily present at the attestation. Note 5, pp. 208 209. If the testator and the 2 witnesses are assembled in the room together, it doesnt matter who signs when. Is this a case you should rely on in practice? The smart thing to do is to have the testator first. This is b/c the will may not be probated in GA. So, the smart thing to do is to follow procedures that will be valid in any jurisdiction.

HW for Thursday: pp. 215 235

16 February 2006
Problem 6 (p. 209) He signs w/ an X. Is that permitted? Yes. Suppose that he wrote a shaky Pat rather than an X? You can do it if that was intended to be his signature. Could it matter whether he was trying to write more than Pat? It may matter than b/c it may speak to what he planned to do. If he intended to do more and then failed, then it wouldnt be required. Does the UPC allow you to use a mark or a short form of your name? UPC 5-502 Comments. It may be by mark, nickname, or intials, subject to the general rules. What about GA? 53-4-20(a). What if he had trouble holding the pen and someone assisted him in signing his name? o It is allowed. 54

o However, it is significant whether the testator asked for help. If the testator asked for help, it shows that he wanted to sign. If he didnt ask for help and the witness helped, it could be shown as undue influence. o Estate of DeThorne (471 N.W.2d 780): The will was not allowed. For someone to sign in place of the testator, what are the requirements? o UPC 2-502(a)(2): The individual who signing has to do it in the conscious presence of the testator and at the director. o GA 53-4-20(a): It has to be at the testators express direction and in the testators presence. o Do you have the same presence under GA and UPC? The UPC has consciousness presence. The GA Code has the line of sight test.

Note 7 (p. 209) HYPO: There are some handwritten provisions added before the will was signed. The provision appears below the testators signature line. o Some jurisdictions require that the testators signature be at the foot of the document. If that is the rule, then there would be a problem. Clark: The ct. said that it would strike out the provision b/c it was a non-despositive provision and allow it probated. NY: They will strike the provision out unless it is an impt. provision. UPC: There is no requirement that the testators signature be at the end of the will. (in the comments) GA Probate Code: There is nothing in the code that specifically requires that the testator sign at the end of the document. The Redferns Treatise on GA law says that the position of the signature doesnt matter. However, what about the witnesses signature? The witnesses signatures must to subscribed. So, could it be interpreted to mean that the witnesses sign at the end of the document? There is no case law on this. So, it really probably isnt an issue where the witnesses signed. Note 8 (p. 210) What about a videotaped will? A videotape isnt written. So, it doesnt fit under the definition. What if the words are written on the screen? Can you foresee any problems in using a videotaped will? o People are generally more careful when they write. They often go back and edit. o If you put someone in front of a camera and have them explain what they want to happen w/ their estate, can you foresee any problems? They could mistakenly say a name, figure, or property. There might be ambiguity met in that way. They may not think of everything. o If you have a written will, it is often done by an atty who thinks about things that they wouldnt ordinarily think about. Whereas, if you have a layperson in front of the camera, they may not remember everything. Note 10 (p. 211) Do the witnesses have to sign before the death of the testator? o UPC 2-502: They have to sign w/in a reasonable time, which doesnt require that the testator be alive.


o GA 53-4-20(b): It requires the testator to be alive b/c the witness has to sign in the presence of the testator. So, since an unconscious testator is not present and dead testator certainly isnt present. Estate of Parsons Who were the witnesses of the will? Nielson, Gower, and Warda (the notary) Did the witnesses receive anything under the terms of the will? o Neilson was given $100. Gower was given real property. Under CA law, what happens when a witness receives a bequest under the will? The gift is void unless there are two other disinterested witnesses that sign the will. If there arent two disinterested witness, the witness will lose the gift. Who are the parties challenging the bequests to the witnesses? The testators heirs The heirs didnt receive anything under the will. They were excluded. o How will they benefit if the gifts are purged? Why do they have standing to make the arguments that they do? They could recover under intestate sucession. The will would be valid once you purge the witnesses. However, the gifts that the witnesses would have receive would be passed by intestate succession. Gower argues that there are two disinterested witnesses. Neilson is disinterested b/c she disclaimed her gift. Warda has always been disinterested. Why does CA want to 2 disinterested witnesses? The witness will be better and more likely to protect the testator if they are not getting anything under the will. Does the disclaimer make her into a disinterested witness? No. For the statute to do what is intended, the witnesses has to be disinterested at the time of the attestation. What would be the result under UPC 2-505(b)? It would be fine for the witness to receive a gift. THe will would be valid if the witness received a gift. The witnesses would be able to receive their gift as well. What is the GA law on interested witnesses? See 53-4-23. It is a valid will. However, the witnesses will lose their gifts. This is a purging statute. Recommended Method of Executing a Will (p. 215) This is almost like a check list. If you comply with all the steps, you It can keep you from omitting something that is impt. If you are following a script, it is less likely that you will forget something. What about in terms of a later challenge to the will? Having a standardized practice can help. The state that the will is executed may not be the state that the will is probated in. It is best to have a set of procedures that will be valid no matter where the testator moves. What if 15 years after you draft a will it is offered for probate. What if you have to testify about how you executed the will? A ct. may let you testify about the way that you always execute a will. The 2nd step that they mention on p. 216 is to make sure that the testator has read the will and understands the contents. o Why would you want to do that? You want to make sure that nothing has been changed or added. You want to make sure that the testators wishes are fulfilled. GA 53-4-21: The rule says that the knowledge of the content of a will by the testator is necessary for the will to be valid. The will isnt valid unless the testator knows the contents. If the testator can read, the testators signature or acknowledgement of the signature is presumed to show such knowledge. Step 9 is the self-proving affidavit. o An affidavit is a sworn statement. 56

o What is a self-proving affidavit? It provides a presumption that the will is going to be valid that the steps have been followed. It is beneficial if the witnesses are dead or cant be located. o How does the self-proving affidavit differ from the attestation clause? The attestation clause will permit probate when a witness forgets the circumstances. So, it really goes to the validity of ceremony. It typically is part of the will itself. It is this is what the witness is affirming that these things happened during the execution. A self-proving affidavit is usually a separate document that says that you went through all the steps in execution. It is affirmed in front of a notary. o UPC 2-504, 3-303, 3-405, and 3-406(b): it is conclusive presumption to the signature. It is a rebuttable presumption that all the requirements have been followed. o GA 53-4-24(c): You can still contest the will, but it does allow the ct. to admit the will to probate w/o there having to be any witnesses. See p. 219. o The WI ct. didnt approve of attys keeping wills. They said that the original will was good enough. They think that it is less necessarily than thought of previously. Also, keeping the will may be unethical. It may be unethical b/c it was viewed as soliciting business. o If the will is at the attys office, what is that going to mean when something happens? The family has to go to the atty. If they go to the atty and get the will, most likely if they need an atty to help in probate that atty will most like be the one. o Does that strike you as a problem? They might prefer to have an atty do it. However, they may not want to go elsewhere. o Why wouldnt you want to send a will to a client? Sometimes people that have the original will in their possession, they may try to change it. They may lose the will. o Do you think that Seward Johnson would want the law firm to give him his original will? He would want the attys to keep the will. He wouldnt want to have to keep track of it personally. o The authors think that it is okay for the atty to keep the will and send a copy home w/ the client.

In re Pavlinkos Estate The husband and wife each sign a will that was intended for the other. The clients werent native English speakers. The wills were in English. They didnt notice that the will that each signed was the will of the spouse. What happened to get us into ct.? The wife died and they didnt do anything with her will. Then the husband died, and they tried to probate his will; but it was signed by the wife. The attestation requirements were complied with. The ct. did not admit the will to probate. The ct. said that it was not his will. The ct. decided that he didnt satisfy the most basic requirements of the will. In re Snide They tried to probate the will that Harvey signed that was made to be Roses will. Does the ct. admit the will to probate? Yes. The proponents of the will make an argument about testamentary intent. They say that intent is lacking b/c he never intended to execute the document that he signed. The ct. didnt buy it. He said that it was case of genuine mistake. The will were exactly the same. The ct. found an intent to make the dispositions that were in these documents. What does the ct. do about the fact that the language of the document that he signed was incorrect? It was executed in the manner of the statute. There was no fraud. 57

The ct. focused on the fact that it was a mutual, genuine mistake. The ct. permitted reformation of the document to reflect the actual intentions of the testator. They allowed the substitution of names and such. Does the case appear to create a broad exception to the wills acts formalities? Suppose it wasnt just a case of two people sitting at the table and signing the wrong document. What if they didnt have witnesses? Would this case cover that situation? No b/c they did all the statutory requirements besides singing the wrong thing. o The ct. tries to limit its language. As b/t this case and the previous one, which is the more common approach? The more common approach is not to probate the will. o Dissent found 17 cases where there had been two wills that got switched during the execution process. Out of those cases only 6 courts probated the will Canada and British Columbia. o Snide may be the majority approach.

Note 1 (p. 225) B/c everything passed to the husband, they didnt probate her will. Any property that would have passed to him was already in his control. If they had learned about it when the wife died, there would have no problem if the husband were competent. What if he doesnt have the competence to execute another will? Could you copy the signature of the will that he signed and superimpose it on the will he was meant to sign? There is an ethical problem. The lawyer shouldnt make a mental decision for the client. Also, the lawyer is trying to misrepresent something to the ct. They are trying to make it seem that the husband signed something that he really didnt.

HW for Friday: pp. 235 251

17 February 2006
We were talking about the problem raised by the Pavlinko case. Assume the wills got mixed up. Hellen has died and Vasil is now incompetent. What can you do as the atty involved in the mix-up? You could file an action of the ct. asking the ct. to reform the will relying on the mistake correction doctrine. Another thing that the authors suggest is to get a conservator appointed. In most jurisdictions, a conservator cant create a will; but maybe the conservator could create a trust that would accomplish what he wanted in the will. In re Will of Ranney What was the defect in the execution of the will? There was no attestation clause. o Here, the atty had apparently included a self-proving affidavit that was supposed to be separate from the will. But for some reason, the attestation clause wasnt included in the will. o So, the self-proving affidavit was incorrect as to the procedures of the will. Do the witnesses think that they have attested the will? The witnesses were under the impression that they attested to the will. In the Groffman case, when there was a failure to comply w/ the attestation clause, they denied probate. Did they deny probate here? No. The ct. said that there was substantial compliance. o As opposed to the cases that require strict compliance w/ the formalities, the ct. in this case adopted a substantial compliance doctrine. How do you decide whether to probate a will under substantial compliance? 58

o See p. 229 at the bottom. Professor Langbein has an article that the ct. quoted that explained how substantial compliance works. o If that is our inquiry here, does the document express the decedents testamentary intent? Yes o Does it sufficiently approximate Wills Act formality to enable the ct. to conclude that it serves the purposes of the Wills Act? Yes. The despositive language was drafted by an atty. What about the rituals function? There was enough ritual to convince the decedent that he was doing something impt. The witnesses are supposed to protect the testator and perform some evidentiary functions as well. Did they protect the testator here? Yes. Are there any evidentiary functions? Evidence that this wasnt a forgery? Evidence that there was no undue influence? There are evidentiary functions.

In re Estate of Hall A joint will is a will that represents the will of two people that they sign jointly. What was the potential prob w/ the execution formalities of the joint will? There were no attested witnesses. o They didnt intend that will to be the final version. That was supposed to be a draft. However, they wanted to know if it could serve as a final version until they can get one. The lawyer says that they can probably have it serve as their final will for now. Why does the lawyer think that it can temporarily serve as the final will? o There was a notary. o Maybe thinking that each of them could be a witness for the other In any event, the ct. doesnt think that the attestation requirements were met. The court did permit the probating of the will. The ct. relied on the Code as long as there is clear and convincing evidence that the testator wanted this to be his final will it would be okay. The UPC provision would be 2-503. o Is this the same thing as the substantial compliance doctrine or is there a difference b/t the two? There is not a major difference. They are two accomplish the same purpose. They are to permit probating of documents that are intended to be a persons will. Yet, in the notes after the case, people often distinguish b/t the two. Montana is substantial compliance. The UPC is a dispensing power doctrine. The author likes the dispensing power doctrine. In applying substantial compliance test, he thought that the courts were losing the focus of the document intent. He thinks that the real issue is Was this document intended to be his final will? Note 2 (p. 235) Dispensing power allows you to do away with witnesses if you can show that the person intended this to be his will. Should we get rid of the requirement to have witnesses all together? A good reason for keeping witnesses would be the ritual function. It is good thing to have. HOLOGRAPHIC WILLS A holographic will is when a testator writes it in his own handwriting. You dont need to have witnesses for a holographic will. GA does not permit a holographic will. 59

Why do you suppose that some states allow a holographic will? Some people may be on their death bed. In some situations, you may be able to want people to execute a will if they couldnt get to an atty. Some people cant afford to go to atty. It is a cheap alternative to execute a will. Are there any probs w/ a holographic will? You have to see if there is sufficient evidence of intent. You have to determine whether a potential document is really a will or it is just a letter. They may not dispose of all their property. It could be in artfully drafted. They may not know how to dispose of something in a proper manner. So, there may be more litigation. Note 3 (p. 235) Under substantial compliance, you need more formalities than this. If you have a holographic will, they didnt even try to find a witness. However, the authors wonder whether a holographic will would be allowed in under UPC 2-503 (dispensing power doctrine)? Could a document like this, handwritten, signed, intended by testator as a will, could you admit that under 2-503? Yes b/c you need to have clear and convincing evidence that it was intended by the testator to be a will. Does that mean that a jurisdiction that has a dispensing power permits holographic wills? Maybe The UPC does have a provision permitting holographic wills. UPC 2-502(b) The signature and material portions of the document must be in the testators handwriting. Are there other jurisdictions where their requirements for a holographic will differ from the UPC? There are three different kind of statutes Entirely in the handwriting of the testator Signature and material provisions have to be in the testators handwriting Material portions and extrinsic evidence Some jurisdictions require the date to be in the testators handwriting We have talked about the functions behind the wills formalities. On p. 237 238, they suggest that a holographic will satisfies the evidentiary function. If it is in the testators own handwriting, then that provides better evidence that the testator intended this to be his will. What about the ritual function? In general, it is not the same formality. It may depend on the circumstances and the particular document. What about the protective function? Is that satisfied by holographic wills? Typically it is the protection of the witnesses from undue influence of the testator. By having other people in the room it provides the testator from undue influence, fraud, and the like. Do holographic wills protect the testator? Maybe maybe not; it depends on the situation In re Kimmels Estate What is the document that is being offered for probate? It is a letter from the father. What subjects does he cover in the letter? Talks about how to pickle a pork, the weather, impt. papers that he has, Christmas, how he needs to get them over there; he says if anything happens ot him, he wants the money to go to Earl and George After he mails the letter, he died. He died the afternoon that he sent the letter. 60

The ct. wants to know if the letter had testamentary intent. Does he have testamentary intention? o The ct. looks at the actual letter. The ct. said that the letter had testamentary intent. Why does the ct. hold that there is testamentary intent? o He is clearly contemplating what he wants to happen to his property if he dies. o However, you could write about that in a letter w/o having it have a testamentary flair. Student thinks that the ct. got it wrong. He didnt intend this letter to be a testamentary document b/c he talks about how he is planning to do more things, like give the son some important personal papers. What about the language near the end of the letter that says keep this letter, lock it up, it may help you out. Is that evidence that he intended this letter to be his will? Yes. Was there anything here that would serve as the cautionary or ritual function that he was writing an impt letter? He was sick a few days earlier. He was anticipating a bad winter. He was thinking that he might not make it through the winter. What was the second issue after testamentary intent? It has to do with the signature requirement. He wrote your father. o On a letter of this character, the ct. held that writing father was intended to be his signature.

Note 1 (p. 239) He probably would have answered No. He knows what a will is and he probably meant this to be a letter. Note 2 (p. 239) Eaton v. Brown o What was the issue? The issue was whether or not she intended what was left in that letter to be a will. She did come back safe from the journey. Later she dies. Can we enter this will into probate b/c the condition that she would die on her journey didnt occur? The ct. admitted it to probate. o What would be the argument for doing that? If the language seems clearly conditioned on a particular event, why would they probate it anyway? When she was talking about not coming back from the journey, she meant what would happen if she died. o Do you think that testators always mean test by any cause? Would it change the desire about who they might want to get the property? NO o The ct. said that when she talked about dying on the journey, she was talking about dying. The journey was the immediate possible cause of her death. Would other cases w/ a similar problem/language go to probate? It might not fly if there is the substantial compliance doctrine. It doesnt follow along w/ the different functions. If you have to show clear and convincing evidence if this is under the dispensing power, there could be a problem. Eaton is a majority rule. This a position a lot of courts have taken. Footnote 22 (p. 240) A guy writes a note on a wall about what he wants to do with his belongings. They cut out the will and offer it for probate. Does the satisfy the requirements under the UPC? o There is a signature. o It is all in his handwriting. o So, it seems to satisfy the requirements. What does take care of my belongings mean? He could have been trying to make her an executor. 61

Can your only point of the will be to appoint an executor? o If it is going to pass by intestate succession, can you have an executor who distributes the property? See UPC 1-201(56)

Estate of Johnson When Mr. J decided to make his will, what did he do? He had a stationers form. You can go to an office supply store and gets the will form. With this form, he fills out the blanks in his own handwriting. He didnt go to a lawyer, but he did get a notary. Did his will satisfy AZ formalities? NO b/c he didnt have to witnesses. Did the ct. find that this satisfied the requirements of a holographic will? No. You have to look at the handwritten portions and be able to draw testamentary intent. From p. 243, does this look like testamentary intent? Yes. The ct. relied on the idea that the material portions of the will have to be in handwriting for it to be holographic. Why would you have that? You want to better prove his intent. Does it make sense to apply that requirement here have to determine testamentary intention from the handwritten portions? It seems like his intent is clear here. However, the ct. doesnt think so. What do you think about saying that you must be able to determine testamentary intention by only the handwritten portions? He had a form. The UPC was altered after this case. We now have 2-502(c). o It says that you can use extrinsic evidence to make the case for the testators intent. If that version were applied here, it seems like you could use all the printed words. What if AZ had the dispensing power test? Would this be an appropriate situation to use it? o It seems like you could. o Dispensing power doesnt require you just to look at the handwritten portions. What if you were in a substantial compliance doctrine? o That would be harder b/c you would have to go through all of the formalities. However, he did use a form here. Even though there are no witnesses, there is a notary.

HW for Tuesday: pp. 251 259

21 February 2006
In re Estate of Kuralt K bought a 20-acre piece in 1985. In 1987, he bought two other pieces that adjoined the property. What was the first document? In May 1989, he executed a holographic will which gave all the Montana land to Shannon. The document satisfied the requirements of a holographic will. Five years later (1994), he executed a formal will. The formal will didnt mention given the Montana property to Shannon or her kids. So, it is being argued that the formal will replaced the holographic one. It resulted in the invalidility of the 1989 holograph. It is possible to have multiple documents that qualify as wills and dispose of the property. So, to give Shannon some property, he made it look like she bought the land. THe issue is about the rest of the Montana parcels. Before they could do a second disguised sale, he became ill. He wrote a letter to Shannon saying that he will get a lawyer to write a will which gives the land to her. Shannon offers this letter to probate. 62

To decide whether this letter is probated, you have to look at the testamentary intent. The ct. decides that the property should go to Shannon b/c it had the intent. Looking at the language of the letter. Do you think they got the right answer? o Should they be asking themselves what he wanted to happened to the property OR should they be asking whether this document was intended to be his will? They should be looking at whether he wanted this document to be his will. So, the ct. did go w/ the testators intention; but intention is not enough to form a will. There has to be something more. It is obvious that he did not intend the letter to be his will. Note 3, p. 250. o Why do we have a requirement that testamentary intention must be found in a will? You are ignoring some of the safeguards if you dont follow the procedures/formalities. If you buy into the idea that the formalities serve an impt purpose, then you would think that this isnt a will. o It seems like he wanted her to have the property b/c he deeded previous property to her. It seems plausible that he wanted the property to go to her.

REVOCATION OF WILLS HYPO: Suppose I execute will A. In this will, I provide that my car is going to go to Kaitlyn; $1000 goes to Krisitina; residue goes to wife Beth. Later I decide I am not happy with it. At a party, I hold up the will and say I revoke thee. I revoke thee. Is the will revoked? No. You cannot orally revoke a will. How can you revoke a will? o Physical Act UPC 2-507(a)(2): burning, tearing, canceling, obliteration, etc. GA 53-4-44: If you destroy or obliterate a will w/ the intent to destroy it. o Add Subsequent Writing UPC 2-507(a)(1): Executing a subsequent will GA 53-4-42(b): When testator by writing or action expressly annuls a will GA 53-4-43: An express revocation may be effected by a subsequent will HYPO: Suppose instead of doing something to revoke Will A, I execute Will B. In Will B, everything goes to brother Bill. What would be the effect of the second will? o UPC 2-507(a)(1): Another way to revoke a will is to write another will that has an inconsistency. UPC 2-507(c): The presumption is that if it completely disposes of all my property, it is a rebuttable presumption that it was to replace the previous will. o GA 53-4-42(c): An implied revocation results form the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will. HYPO: Suppose the Will B said Car to Bill; $2000 to Kaitlyn; $2000 to Kristina. o Here, we are going to try and give effect to both wills to the extent possible. o UPC 2-507(d): Testator is presumed to have intended a subsequent will to supplement rather than replace if the subsequent doesnt make a complete disposition of the estate. To what extent are they inconsistent? The car is changed from Kaitlyn to Bill. So, Bill will get the car. We will partially revoke will A w/ respect to the disposition of the car. Beth will argue that Krisitna will get more than before. So, Kristing would get $1000. However, Kristina will argue that she gets $1k from Will A and $2k from Will B. What happens? It is up to the discretion of the court. 63

o GA 53-4-47: An implied revocation extends only as far as an inconstancy exists b/t the testamentary instruments. Any portion of a prior instrument that can stand consistently w/ the testamentary scheme in a subsequent instrument shall remain unrevoked. What do you call a supplement to a previous will? A codicil

Problem: Revocation by Inconsistency (p. 252) Part (a): He has expressly revoked the codicil. The common law rule is that the revocation of the codicil will not revoke the will that the codicil amended. Part (b): The common law rule is that revocation of a will will also revoke any codicil that is attached to that will. Harrison v. Bird The have the execution ceremony. The atty takes the will w/ him. There is also a duplicate original made. What would that mean? She had two documents. She signed both of them. Both of them were attested. o Why would a person do a duplicate will? They want to guard against the possibility that one would be lost. Who kept the duplicate original? Katherine Harrison (she is the beneficiary) Is it a good idea to have multiple wills? Like a photocopy? You can if there is no other means of establishing the contents of the will. o GA S. Ct.: The ct. criticized the idea of having multiple originals. GA law has a presumption that if a will is lost that it was revoked by the testator; but if you overcome that presumption, you can present a photocopy to prove its terms. How does she revoke her will? She calls an atty. He tore it up and sent it back to her w/ a letter saying that she was intestate. What the atty correct about that? No. She was not intestate. Even though she directed him to tear it up, she wasnt present. So, what was his effect of tearing up the will? Nothing. The torn up will is still a valid will admissible to probate. What was wrong w/ the way he did it? The rule in the state required if someone is to revoke a will for someone else, they have to do it at their direction and in their presence. What would happen under UPC 2-507? Would the atty tearing up the will in his office revoke the will under the UPC? Under the UPC, it says that it has to be by the testators direction and in the testators conscious presence. (Here, there is no conscious presence.) So, it would not be a revocation under the UPC. What would happen under GA 53-4-44? Does it require the destruction to take place in the presence of the testator? No. So, it looks like GA applies a different rule. You only need the testators direction. Does this will get admitted to probate? The ct. applies a presumption that b/c the pieces of the will are missing that means she must have destroyed it. What about the fact that there was a photocopy? It wasnt enough to get past the presumption. o The presumption in GA is 53-4-46(a). A presumption of intent to revoke arises if the original of a testators will cannot be found to probate. So, it is the same presumption as that applied in the Harrison case. If you overcome the presumption, you can introduce a copy of the original will. Thompson v. Royall 64

She wanted to destroy the will and the codicil. However, they retained them for future reference. The atty wrote on the will that it was null and void, and she signed it. Is the note that she signed sufficient as a writing to revoke a will? No. o What is the problem w/ the note that she signed? Why isnt this a subsequent writing? It was not executed in the manner in which a will is required to be executed no attestation. However, the heirs argue that there was a valid revocation of the will. o Why do they think that the will was revoked under the VA statute? One way to revoke a will is by cancellation. They said that she cancelled the will by note and the signing of the note. o However, this wasnt effective enough to cancel it. What did she need to do to cancel it? They would have to write the note over the words of the actual will for the writing to be a cancellation. UPC 2-507(a)(2): The will would have been validly cancelled under the UPC. It doesnt have to touch any of the words of the will. HYPO: Suppose that the words of cancellation werent on the will itself. The atty typed up another piece of paper that said that she cancelled the will. Will that work under the UPC? It is not a revocatory act on the will. It has to be on the will, even though it doesnt have to touch the will. o Is there another provision of the UPC on which you can rely to say this is a cancellation of the will? UPC 2-503 (Harmless Error). You could argue it under the dispensing power provision. They intended the writing to be a partial or complete revocation of the will. What about GA law? Would on the facts of the case would that be revoked under GA law? GA 53-443. An express revocation may be affected by a subsequent will or other written instrument. 43 basically expands on 42. So, the writing wont work here b/c there is no attestation. o It wont be revoked under 53-4-44 b/c it hasnt been destroyed or obliterated.

Payne v. Payne (1957): T was speaking w/ wife. T throws the will into the fireplace. The wife, a beneficiary under the will, pulls it out of the fireplace and saves it. After the testators death, the wife takes it to ct. to be probated. The ct. said that he tried to revoke it but he didnt succeed to revoke it. B/c none of the words were destroyed, he didnt complete the act of revocation. Problem 2 (p. 257) Is there any reason for the writing to be touching the will? The authors of the UPC couldnt find a good reason for that will. Problem 3 (p. 258) What if the note was written over the self-proving affidavit? Is that enough? NO. o Think about Ranney and substantial compliance. That case would point to that it is not enough to revoke b/c the affidavit is not the will. o Dickson: The ct. held that it was enough to revoke the will. Problem (p. 259) T has executed a will that has 4 residuary beneficiaries. When they find the will, one of the four names was crossed out in pencil. There is no direct evidence that the testator did it. o Part (a): UPC 2-507 It is permissible under the UPC to partially revoke the will by a physical act. Is there sufficient evidence that a revocation of one of the beneficiaries? See Byrnes Will (the marking was sufficient to show that the testators intent was sufficient to revoke the beneficiary) How do we know that the testator did it? 65

Some jurisdictions would apply a rule that if the testator had possession of the document then any markings on it were made by the testator. Should it matter whether the markings were made out of pencil or pen? Carter (GA Case): There was a revocation in pencil. Courts usually havent distinguished b/t pen and pencil markings. Does GA permit partial revocations of a will by physical marks?

HW for Thursday: p. 259 269

23 February 2006
Problem (p. 259) GA 53-4-44: Does GA provide for partial revocation of a will by physical act? NO o What should you do if you want to partially revoke your will in GA? Execute a codicil (it is executed w/ all of the formalities of a will) o This section does have provisions that might be relevant to this hypo? How might this statute apply if the T marked out one beneficiary? There is a presumption that you intended to revoke but it may be overcome by a preponderance of the evidence. Obliteration of any material portion of the will so by marking out one of the beneficiaries, it may be a material portion if it is, would create a presumption to revoke the entire will o What does 53-4-44 do when a will has been destroyed? You have to have an intent to revoke. If you have that intent, the entire will is revoked. Part (b): o What is the result in a state that does not permit partial revocation by physical act? You would probate the whole will and give effect to how it was originally written. o What if the T obliterated one of the names so effectively that you cant read it anymore? If you can find another copy of the will, that might work. T obliterated the name very effectively. Ct. gave effect to the rest of the will that they could read. Part (c): o Suppose that Ts will is a holographic will in a jurisdiction permitting holographic wills. What result? You can amend a holographic will after you have made it. You have made a new holograph that consists of the new writing as well as the old. LaCroix v. Senecal There were two beneficiaries in the original will the nephew and the friend. Later, she executes a codicil. Why? There are no substantive changes made. She simply adds the nephews real name in addition to his nickname that was in the original will. The codicil worked as a revocation of that portion of the original will. What was the problem with the codicil? Senecals husband was a witness to the codicil; there was a purging statute that applied to the spouse of the beneficiaries. Doctrine of Dependent Relative Revocation: If the testator purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth. 66

In this case, the T mistakenly believed that the gift to Senecal and the codicil were valid; but in fact, they werent. How is the doctrine applied in this case? Since she believed that it was valid, the part of the original will that was applied to remains valid. We treat her revocation as conditional. Since the codicil was ineffective, they revive the residuary clause from the original will.

Problem 1 (p. 262) Part (a): o Could you argue that her change to the document was a holographic codicil? No b/c she didnt execute it according to the formalities of a will. Also, the handwritten portions by themselves are meaningless. Part (b): o The original $1000 gift will be in effect. The cross out wouldnt be valid, so he gets the $1000 in the original will. Part (c): o $1000 would be given on the doctrine of dependent relative revocation (DDR). The evidence suggests that she wanted him to get $1500. However, with the choice being b/t him getting $1000 and $0, he will get $1000 (the amount in the original will). Part (d): o Since T intended to give a smaller amount, T might prefer to give nothing rather than the $1000. o Doctrine of dependent relative revocation is when you are trying to do the thing that comes closest to the testators intention. On these facts, it is hard to tell b/c the testator wanted to give the person less than $1000. So, if the choice is b/t giving the person $1000 or $0, the intent isnt clear what the testator would want him to have. Problem 2 (p. 262) It seems like we shouldnt revive it b/c the T didnt want the person to get anything. Now, assume that John is the father and Nancy is the daughter of John. Suppose John knew about the will and asked the testator to give the property to Nancy so that it didnt have to pass through Johns estate. Is this a good case for applying DDR? Yes b/c it is obvious that he still wanted the family to get the money. So, it is better for John to get it rather than no one receive the money. Problem 3 (pp. 262263) FLs rule against perpetuities was a wait-and-see approach. So, when the 2nd will was executed, you didnt know whether or not the rule against perpetuities would have applied. They could have applied DDR. o How might have that applied on these facts? They could have gone back to the first will. o If you apply the gifts from the first will, that is what the testator wanted. So, we would treat the second will as revoking the first will conditionally. When that will was declared invalid, the first will became valid again. Problem (p. 263) GA Case: Ct. refused to apply DDR to save a presumptively revoked will. When the ct. decided that the document was revoked, there was no evidence that the T contemplated a new will. Problem 2 (p. 263) What happened in Campbell v. French? T let $5k to a friend and residue to brother. Then he executed a codicil that said that he revoked the gift to the friend b/c he thought that she was dead. 67

o What happened? The ct. treated the revocation as conditional on the truth asserted (her death). When it was discovered that she wasnt dead, she can still get the money. She can receive her gift. DDR does apply. What if he said that he already gave them the money even though he really didnt? o DDR doesnt apply here. o How do distinguish this from Campbell? We have less certainty about whether he was really mistaken or not. In this case, it was relatively easy for him to find out whether or not he gave her the money. Here, the factual recitation is something that is peculiarly w/in the knowledge of the testator. What if there is no explanation given about the revoking of a gift? However, there is extrinsic evidence that can point to the reason why he revoked it. DDR wouldnt apply b/c the mistake is not recited on the fact of the will. If they havent told you in the document why they are acting a certain way, it is speculative why they are acting in that particular way. There is no definite reason.

Estate of Alburn When were the wills executed? Milwaukee (1955) AND Kankakee (1959) What were the terms of the M will? Olga, Doris, Lulu, and Viola were beneficiaries What were the terms of the K will? Olga, Doris, Lulu, Addie and Robert were beneficiaries. If she died w/o a will, who would get the property? Brothers, Sisters, Nieces, and Nephews (none, except for Robert, were mentioned in the will) When the K will was executed, the M will should have been revoked. Why does the K will result in revocation of the M will? She most likely recited in the K will that she revoked all other wills. T originally lives w/ Robert (brother). Where does she go after she leaves Roberts house? She goes to Wisconsin. After she moves to Wisconsin, she tears up the K will and gives them to her brother (he takes them to the dump and lets it fly in the will). How do they know what the K will says? There was a carbon copy of the will possessed by the lawyer. Does revoking the K will have the effect of reviving the M will? NO o So, now, she has two wills that have been revoked. Does her property pass by intestate succession? No. The ct. applies DDR. How do they apply DDR? What will do they give effect to? The K will o If you have revoked a document under a mistake as to law or fact, then that document might be revived. o The mistake here is that she thought that the M will would be reinstated if she revoked the K will. Why should we assume that the revocation of the K will was conditional on the revival of the M will? It is better to let her estate pass under the K will than letting it pass intestate to people that she didnt mention under either of the wills. So, the ct. assumes that she would rather have the K will rather than intestate succession. The ct. doesnt want to completely destroy the scheme that she came up with for distributing the assets. If we were apply UPC to this case, what provision deals w/ these situations? 2-509 deals when a revoked will is revived. o Subsection (a) would apply in this case. The subsequent will K wholly revoked the M will. The K will was revoked by a revocatory act (torn into pieces). The M will remain revoked unless it is revived. It is revived if it is evident from the circumstance that the testator intended the previous will to take effect as executed. 68

In this case, the M will would have been revived. This b/c there is evidence that she intended to revive it. What if we were deciding this case under the GA Probate Code? o We are stepping back to the point when she executes the K will. Would that revoke the M will? Yes under 53-4-42(b) and 53-4-43. o Would the revocation of the K will revive the M will under GA law? See 53-4-45. We have to see whether the first will was revoked in whole or partially. We also have to determine whether the second will was revoked or not. 53-4-45(b) would apply. With respect to revival of the M will under that provision, it will remain revoked until it is revived. It is revived if there is evidence that the testator wanted the M will to take effect. This is similar to the UPC provision.

Problem 1 (p. 268) How would the case be resolved if the K will didnt contain an express clause revoking all prior wills? o The UPC Section depends on whether the K will wholly revoked or partially revoked the M will. So, we have to look at 2-507 that talks about revocation by inconsistency. See 2507(b)9 and 2-507(c). If there was no express revocation clause under the K will, it would wholly the M will. This is b/c the testator intended the subsequent will to replace rather than supplement the previous will. It was a complete disposition of the estate (see subsection (c)). Since we know that the M will was wholly revoked by the K will, we now go to 2-509 to see which provision to apply. We apply 2-509(a). o How would this be resolved under GA law? See 53-4-42(c). This is the provision about revocation by inconsistency. When does a revocation by inconsistency happen under GA law? It occurs only when the subsequent will becomes effective. When does become a will become effective? See 534-2. A will shall take effect instantly upon the death of the testator. Therefore, when she dies, the M will shall take effect. This is b/c the M will was never effectively revoked (if there was no express revocation).

HW for Friday: pp. 269 285

24 February 2006
We had been talking about UPC 2-509. What is 2-509(b) about? When would that be the applicable statute under the UPC? We are talking about a two will situation. Will 2 only revokes Will 1 partly. That means that will two is codicil. Will 2 has to be revoked by a revocatory act meaning if could be revoked by cancellation (writing on it) or destroying it. If you have that circumstance, what effect does that have under the original will? The previous will is revived unless the testator doesnt intend for it to revive. So, if you destroy the codicil, it revives whatever portion of the first will that had been revoked. That is a default principle; it can be overcome w/ the testators intent. When will 2-509(c) be the applicable provision? Will 2 revokes Will 1. Then Will 3 revokes Will 2. Will 1 will remain revoked unless it is revived. So, you determine the effect of Will 3 on revival by looking at the terms. o Does it matter whether Will 2 partly or wholly revoked Will 1? No. It doesnt matter. 69

GA 53-4-45. The applicable provision depends on whether the will was revoked in whole or in part, how it was revoked, etc. Part (d) applies if the will was revoked in part by codicil and the codicil was revoked by an act. Part (e) is giving us another way in which a previous will can be revived. This is applied if revival under parts (a) (d) doesnt work. o Under (e), if the will is republished, then it is revived. See 53-4-50 for republication. The testator can execute another will reviving one that they want to have republished. Problem 2 (p. 269) There are three documents found in a safe deposit box. There is a will executed in 1995 that gives all property to A. There is a will executed in 1996 that gives all property to B. In 1999, there is a statement that he wants to revoke the 1996 will. Under UPC 2-509(c), who takes the property? o How do we know that part (c) is what we look to? 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 revised. 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. If we apply this to Ts will, who would get the property? H would get the property b/c it is passed intestate. If we were to analyze this problem under GA law, what would happen? See 53-4-45. o We would apply part (a). o Was the 1995 Will revoked by the 1996 will? Do we know from the facts whether the 1996 had an express revocation clause in it? No. Could it matter whether there was a clause or not? Yes b/c it will tell us how the 1995 Will was affected by the 1996 Will. What if the 1996 Will didnt have an express revocation clause in it? Would it revoke the 1995 Will? See 53-4-42(c). If there is no express revocation clause, the only arguable basis for revocation of the 1995 Will is inconsistency. An inconsistency revokes the previous will at the testators death (when the subsequent inconsistent will becomes effective). So, if we applying GA law and if there is no express revocation in the 1996 will, the 1995 will take affect b/c it was never revoked. By the time of the testators death, the 1996 will had already been revoked. Since the 1996 Will was revoked at the time of the testators death and there was no express revocation clause pertaining to the 1995 Will, only the 1995 Will is valid and thus effective. Therefore, A will get all the property. o What if the 1996 Will had an express revocation clause? See 53-4-35. It turns on whether the 1996 Will wholly revoked the 1995 Will or whether it amended or revoked the 1995 Will in part? The 1995 Will was wholly revoked. So, we only have to look at 45(a) and 45(b). Now the question is how was the subsequent will revoked? 53-4-45(a). If we apply it to these facts, H would get the property. It is not revived b/c it is not expressed in the 1999 will that T wants the 1995 Will revived. Problem 3 (p. 269) 70

In a state that has 2-509 and 2-503, is dependent relative revocation necessary? Do we still need that doctrine if we have these statutes? 2-509 requires an intent to revive. Under 2-503 only a mistake needs to be shown. There are circumstances where 2-509 focused you exclusive on the language of the document. o Could it be possible that DDR would find sufficient language for revival if it cannot be found under 2-509? o See p. 88 in supplement. Each court is free to apply its own doctrine. Note that DDR should less often be necessary under the revised provisions of the code. DDr is the law of 2nd best, i.e. its application does not produce the result the testator actually intended...When there is good evidence...would facilitate the effectuation of the result the testator actually intended. o So, it can be used, but it shouldnt be applied that often.

Problem 1 (p. 270) We are talking about revocation b/c of changes in family structure. What if we were applying the UPC? o UPC 2-804 will apply in this situation. Specifically 2-804(b)(1) is what we are going to apply here. However, it does allow you to draft around this provision. o What effect does 2-804(b)(1) have on the will? The disposition to the wife will be revoked under 2-804 upon divorce. o What about disposition to the step-son? It is a broad provision that cuts out gifts, not just to the divorced spouse, but also to relatives of the divorced spouse. So, the step-son cannot receive the property. What if we were applying the GA Code? 53-4-49 This applies when there is a will that has no provision made in contemplation of such event. So, you can draft you will to get out of Section 49. o Section 49 treats the spouse as if the former spouse predeceased the testator. o In this problem, it would go to the step-son. Would this statute deprive the step-son of his gift? No. It shall not apply w/ respect to the descendants of the former spouse who are not also descendents of the testator. So, the step-son can take under the GA statute. o 53-4-64 is GAs anti-lapse statute. When we pretend like the spouse predeceased the testator, we are not going to apply the anti-lapse statute. What happens if the testator gets married after executing a will? UPC 2-301 applies. The new spouse gets at the very least the intestate share. o Do they get the intestate share of the entire estate or some subset of the estate? They get a portion of the estate, if any, that neither is devised to a child of the testate who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor devised to a descendant of such a child. If it is not a child, it can go to descendant of such child. Whatever the testator has given the child is protected against 2-301. o You apply the intestacy rules to the remainder of the estate. o There are three exceptions. When would you not give the intestate share to the spouse? It appears form the will or other evidence that the will was made in contemplation of the testators marriage to the surviving spouse The will expresses the intention that it is to be effect notwithstanding any subsequent marriage; or The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testators statements or is reasonably inferred from the amount of the transfer or other evidence. GA 53-4-48 applies. 71

o This provision applies both to marriage and the adoption or birth of a new child. o Subsection (b) is going to give some content to this idea of whether the will was made in contemplation. It would revoke the will to the extent needed to provide the person his intestate share. What happens if a child is born or adopted after the execution of a will? UPC 2-302 applies. o What is the difference b/t (a)(1) and (a)(2)? If they had no living child when they executed the will, you apply (a)(1). If they had more than one child living at the time they executed the will, you apply (a)(2). o What happens under (a)(1)? You allow the child to take as if the testator died intestate. There is an exception to (a)(1). You do not give the child his intestate share if the other parent survives the testator and testator devised all of the estate to that other parent. o What happens under (a)(2)? They are going to be cut into a portion of what the living children already were devised under the will. So, they arent going to get an increased share of the estate. That part of the estate will be divided into more pieces. HYPO: T had two kids June and Fred. The will gave $240k to June and $120k to Fred. After the will is executed, T adopted Sibyl. What would Sibyl get? Sibyl can only take from the $360k already devised to the other children. What portion is she expected to get? Sibyl would get 1/3 of the property = $120k. How much does each of them lose? June would lose $80k and Fred would lose $40k. [Their gifts abate (are going to be decreased) them ratably (they are both going to lose the same proportion of those gifts.] So, June gets $160k and Fred gets $80k. GA 53-4-48 applies. o This provision applies both to marriage and the adoption or birth of a new child. o Subsection (b) is going to give some content to this idea of whether the will was made in contemplation. It would revoke the will to the extent needed to provide the person his intestate share.

HW for Tuesday: pp. 285 294

28 February 2006
GA Probate Code 53-4-48 If T marries, the Will will be partially revoked or revoked completely if it was make in contemplation of such event. The subsequent spouse will be entitled to receive whatever he or she would have received if the T died intestate. What if T had another child born or adopted another child? It would be pretty much the same effect. Subsection (b) gives us a special rule for how we apply it. o A class gift for children of T under subsection (b) is presumed to include after-born and afteradopted children. COMPONENTS BY A WILL 72

Integration of a Will All papers present at the time of execution of the will and intended to be part of the will are integrated into the will. How do we know whether or not something is integrated in the will? o The papers could be stapled or paper clipped together. o Testimony from the witness they could tell what was present at the execution and what wasnt o Language and logic of the document (you might be able to tell that two pages are part of a document b/c a paragraph may begin on one page and end on the next) If you are an atty, is there anything you can do to provide additional evidence for integration? The atty could have the T to initial or sign each page. o Is there any potential danger? If he forgets to sign a page, you may have an issue w/ the ct. about whether or not that page was intended to be included. Republication by Codicil A will is treated as if were executed when its most recent codicil was executed, whether or not he codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testators intent. HYPO: In 1990, B types a document intended to be his will. There is only one witness. In 1992, B executes a codicil. o We cant apply DRC b/c the will was never properly executed. So, it is not appropriate to apply the DRC to a document that never was completely executed. o You could argue that the codicil incorporates the 1990 will by reference. Thus, it will be incorporated by reference and given effect in that fashion. HYPO: In 1990, B executes a will. In that will, B says all real property I own in GA as of date of execution will go to my daughters. In 1992, B purchased additional land. In 1994, B made a codicil. o The codicil can republish the will so that his 1992 land purchase will be included under the codicil. Incorporation by Reference What is the difference b/t incorporation by reference and integration? Does a document have to be present at the execution of the will to be incorporated by reference? NO o The document does have to be present at the execution for it to be integrated. Could I use the doctrine of incorporation by reference to incorporate a secret gift I dont want anyone to know about? Yes o You could not do this by integration b/c the document has to be present at the execution. UPC 2-510: A writing in existence when a will is executed may be incorporate by reference if the language of the will manifests this intent and describes the writing sufficiently. o Could I incorporate by reference a set of oral instructions? No b/c the doctrine applies to a writing. o Can I incorporate by reference a document that I drafted after the will? No. It has to be in existence at the time of the execution of the will. How is UPC 2-513 different from 2-510? o UPC 2-513 allows a written statement or list that disposes of items of tangible personal property other than money to be allowed into the will. It has to be signed by the T. It has to describe the items and devisees w/ reasonable certainty. The writing doesnt have to be in existence at the execution of the will. You have to contemplate it in the terms of the will, but it doesnt have to be in existence when the will is executed. 73

o UPC 2-513 gives the T additional control. It is easy for the T to change. It allows the person to make decisions later on. o Is that provision a standard feature of the law of wills or is it an innovation under the UPC? This is an innovation under the UPC. Usually, the doctrine of incorporation by reference is applied (this means it has to be in existence at the time of the execution). Clark v. Greenhalge Will was executed in 1977. Executor was D. He was a cousin of the T and executor. The document is the Memo. It was drafted in 1972. She modified it in 1976. The memo contained a list of personal property to be disposed of. There was also a notebook referred to. The notebook also contained a list of personal property. The notebook was started in 1979. This case involves a dispute over a painting of a farm. T wanted the farm to go to P. P was a close friend. T wrote in her notebook that she wanted P to get the painting. o Who wrote it in the notebook? The nurse wrote it in the notebook at the Ts direction. How do we get into a dispute over the painting? D refused to give the painting to P. The painting was valued at $1800. Why was there such a fuss over the painting? The painting was later appraised at $35k. The executor told the IRS it was worth $1800, but it really was worth much more. What did the Ts will say about her personal property? It was the article fifth. D should distribute such of the tangible property to and among person as I may designate by a memo left by me. What is the status of the 1972 memo that was amended in 1976? D is bound by the dispositions in that memo. o It is not a problem b/c he argues that it was the memo referred to in the will. The doctrine of incorporation by reference caused this memo to be incorporated under the will. o Would the memo be incorporated by reference under UPC 2-510? It was a writing in existence when the will was executed. There was an intention manifested in the will to incorporate it by reference. Do you think that the language of the will describes sufficiently to permit is ID? Yes b/c the will refers to it as a memo, and it was entitled memo. What about the 1979 notebook? Can you rely on incorporation by reference to give effect to the 1979 notebook as incorporating it into the 1977 will? o It wasnt in existence at the time the will was executed. But the codicil was carried out in 1980. The ct. decides that this notebook does have binding testamentary effect. The ct. relies on the republication by codicil doctrine. It can be incorporated by reference b/c it was in existence at that point. What is the first argument that D gives for saying that the 1979 document isnt incorporated by reference? o D argued that it is not a memo b/c it is not entitled one. It is not a memo b/c it is not titled memo. The ct. said that it can be a memo w/o having the title. o D then argued that article 5th only allows for a single memo. We already have a memo, so we shouldnt allow this one. The ct. said that they are trying to give effect to the intent of the testator. So, it comes in. o D then argued that the notebook was known to him; and thus cant be incorporated. The testimony said otherwise. The ct. rejected that argument as well. HYPO: What if there was no 1980 codicil. Could the notebook still come in? No HYPO: Could 2-513 be used to give effect to the 1979 notebook? o It is a written statement or list to dispose of items of tangible property other than money. o Was it signed by the testator? It was not signed by the testator; but it was in her handwriting. 74

On p. 273, it says that the notebook had the title List to be Given Helen Nesmith. It also included the year. o Can you change your list after you sign it? Yes. The writing may be altered by the T after its preparation. o Does 2-513 require the testator sign it after she has made all the entries? No. o What about the fact that the nurse made an entry? Can that prevent you from relying on 2-513? It does say that she has to sign it; however, it doesnt say that all of the entries have to be made by her. HYPO: Suppose we couldnt satisfy 2-513. Could we rely on the dispensing power under 2-503? o Yes b/c there is clear and convincing evidence that she intended the notebook to be an addition or alteration of the will.

Johnson v. Johnson In this case, we are dealing w/ a sheet of paper. We are trying to figure out how to categorize it. It is a sheet of paper. It is a will that he typed. Then, at the bottom of this paper, there is a handwritten sentence. His signature and the date is at the bottom of the document. It was not executed as a will when he typed it. The dissent takes the view that this was intended to be one document. If you take that view, can it be probated? No. There are material provisions that are not in the handwriting of the document. If it is a typed will, it wasnt properly attested. The ct. allows it to probate. Why? They say that the handwritten part is a codicil and the typewritten part was the will. They said there is an unexecuted will and a properly executed codicil. Therefore, the codicil republished the will. What else could you argue besides republication by codicil? Incorporation by reference HYPO: You have two pieces of paper. A typed will and then a properly executed holographic will. Can the holographic will incorporate the information in the typed will? o What about the rule that the material provisions in a holograph will must be in the handwriting of the testator? It is incorporating another document. States that allow holographic wills do allow it to incorporate typed documents. What exactly did the handwritten portion say? My brother James gets $10 o It seems like the statement at the bottom shows that the atty meant for it to be one document instead of two. Note 2 (p. 284) Could a handwritten will incorporate typed material on the opposite side of the holographic will? Yes. It looks more like two separate documents. ACTS OF INDEPENDENT SIGNIFICANCE HYPO: Suppose T leaves a will that provides for all of my real property to A and all of personal property to B. At the time the will was executed in 2000, the testator owns real property worth $1 million and personal property worth $100k. In 2003, T sells a bunch of real property and invests the proceeds; so, he has $100k of real property and $1 million in personal property. Does he need to execute a new will? No. o UPC 2-512:


In our hypo, we are talking about the acts of him selling the property and invest it in personal property. There are reasons that people may do this apart from their testamentary scheme.

HYPO: What if Ts will said residue to a person to be named in a document that I will attach to this will before my death. Could you apply the doctrine of acts of independent significance to this? No. Why is this not an act or event of independent significance? It is only significant to the will. There is no reason to attach it to the will, unless he wanted to have effect w/ his will. Problem 1 (p. 286) Can the contents of a desk drawer or a safe deposit change? Yes Are placing items in a safe deposit box an act of independent significance if you have a will saying that a person will get the contents of the box? Yes. o What are reasons for putting things in a safe deposit box apart from testamentary scheme? It is a safe place. o Giving the contents of the safe deposit box are fine. What about a desk drawer? Is that the same as a safe deposit box or is it different? o This would allow more opportunity for fraud. A person could change the contents after Ts death. o Would it matter if it was a locked drawer? Yes. Would it be seen as an act of independent significance? There some intent to put it there and leave it there. However, you can change the contents of the draw for any reason.

HW for Thursday: pp. 286 307

2 March 2006
Problem 1 (p. 286) We have a safe deposit box filled w/ envelopes that are to go to designated people. The will says that they are supposed to give the envelopes to those people. Is that a valid disposition? Yes. o Could you argue incorporation by reference? Yes. But the envelope would have to be in the box at the time the will was written. o However, NY doesnt recognize incorporation by reference. Could you argue that this is an act of independent significance? There is independent significance by putting something in a safe deposit box. It is distinguishable. Problem 2 (p. 286) Incorporation by reference? No b/c the trust was created after she executed her will Acts of independent significance? Yes. The event of act of independent significance is Barneys will. o This is an event of independent significance. o It is independent of what? It didnt have anything to do w/ Saras disposition of her estate. His creation of a trust is independently significant of what Sara did. Problem 1 (p. 287) T is not able to take under the will b/c A breached the contract. Does it matter that T didnt do anything to revoke the will? Yes. 76

Could T decide to leave his estate to a contract breacher? Yes The ct. lets A take the property. Of course, the contract would not have been enforceable if T had revoked the will. Since T left the will in place, A can take.

Problem 2 (p. 287) Under UPC 2-514, is B entitled to half of As estate? Yes b/c it was evidenced by writing. There was a writing signed by the decedent that evidenced the terms of the contract. Question (p. 288) He doesnt have a claim. All he did was to promise to remember him in the will. The promise is probably too vague to hold it enforceable. What about a quantum meruit claim (claim based on services rendered A deserves it b/c A already did his part of the deal)? A quantum meruit claim is not a contract claim. What if he collected a salary as a valet? Then, he would not be able to recover. He was already paid for his services. UPC 2-514 What types of contracts does this provision apply to? o A contract to make a will or devise o A contract not to revoke a will or devise o A contract to die intestate How might go about providing evidence of the contract? o Provisions of a will stating material provision of the contract o Express reference in a will to a contract and extrinsic evidence proving the terms of the contract o A writing signed by the decedent evidencing the contract Does the entire contract need to be in writing? No. Extrinsic evidence could be oral Could you have a purely oral claim not to revoke a will? As long as there is some kind of written evidence of that contract GA 53-4-30 What types of contracts do we cover here? o A contract to make a will or devise o A contract not to revoke a will or devise o A contract to die intestate What is the evidentiary requirement to enforce such a requirement? o An express agreement in writing signed by the obligor This didnt come into effect until January 1, 1998. In cases based on oral contract w/ the decedent, the GA cts. have held that it has to be proved beyond a reasonable doubt. There are also under prior law quantum meriut cases. If a person provides services, they can sue the estate and get reasonable value for their services. o Are those quantum meriut cases still good law in view of this statute? In a quantum meriut theory, it does not fall under one of the categories. o Why is it not one of the categories? It is just a claim for payment or services rendered. The contract that you are claiming is a contract to pay me for services I have performed. o There are some jurisdictions that will let you proceed on a quantum meriut claim even though there is no writing and they wont enforce that. 77

Via v. Putnam It was a mutual will. The husband and wife gave the property to one another upon death and then to the kids when the surviving spouse died. A joint will is where there is one will signed by two people. GA 53-4-31: Defines joint wills and mutual wills What did Edgars will do? The scheme was to give everything to his wife if she survived. Then to the children. Was there a contract b/t the testators relating to their mutual wills? Yes. What was the evidence of the contract in this case? There was a provision that said that the survivor will not change the will. It said that they will not do anything to defeat the mutual scheme. How would UPC 2-514 apply here? o There was a contract presumably not to revoke a will or devise, the provisions of the will state the contract. Would we satisfy GAs law (53-4-30)? Yes. It was expressed and signed by the obligor. Is there a presumption that there is a contract when people sign mutual wills? o Under the UPC, there is no such presumption. o Under the GA Code 53-4-32, the execution does not create a presumption of a contract not to revoke the will. Also see 53-4-33. o Just b/c you have a mutual will doesnt mean that you have a contract. Did Edgar do anything to revoke the contract? When he remarried, he could have violated the contract. How could the remarriage be seen as a violation? If he remarries, then his new spouse is entitled to an elective share, which has the effect of defeating the disposition schedule in the will. What is the issue the ct. is resolving? o Should the children be put in a creditor status? They are arguing that they have creditor status under a third-party beneficiary contract. Third-party beneficiary contract: They can claim that they were the beneficiaries of the contract. The breach affected their position. Thus, they should be seen as creditors. See p. 294. What would there creditor status have on the estate? She would not get an elective share b/c they have prior to take over her. If they were deemed to be creditors, what would she be entitled to get? She could get the exempt property, life estate, and a family allowance. What did the ct. hold? The ct. held that the wife should prevail over the kids b/c they followed the Shimp case. In the case of 3rd party dont want to inhibit marriage. o The ct. held the minority rule. Are there cases going the other way? Yes. The majority rule is that the kids will prevail. Problem 2 (p. 294) Cruise? Buying an expensive bracelet? Is that a breach? You have to see if the gift was made in good faith. o At some point, inter vivos gifts to the new spouse can be treated as breach of the contract. Does the contract apply only to property owned at death and property inherited from her or does it include to property that he obtains after? All property is covered by the contract w/ his first wife. o The contract related to his will...what property is governed by a will? All the property of the estate. In Maloney, they said that everything was covered. 78

What about non-probate property? That would not be covered by the contract. o However, at some point, if he using too much of his asserts to transfer it to non-probate property, then there could be a problem.


Langbein, The Nonprobate Revolution What is a free market competitor of the probate system? It is an alternative to going through the probate ct. It is free market b/c you can pick who you want to deal w/, and it offers an alternative to the probate path. If they are in competition w/ the probate system who is winning probate transfers or non-probate transfers? Non-probate transfers What are the four main will substitutes? o Life Insurance o Pension Accounts o Revocable Inter Vivos Trust o Bank, Brokerage, and Mutual Fund Accounts They are similar to a will b/c you can pass on property to people that you name. How are they different from wills? o You dont have to comply w/ the wills act. What is an imperfect will substitute? Joint tenancy in real property o Why is it imperfect? They dont perfectly perform the function of a will b/c with, for example, a joint tenancy in land you have given a present legal interest to the other person and you cant do anything w/o the consent of the other person. A will is ambulatory, but a joint tenancy in land isnt. Why? Wills are ambulatory in the sense that they can change. You can alter the terms of your will. Trust Vocabulary Settlor: He is the person that owned the property and who creates the trust. Trustee: The person who holds legal title to the property in the trust. They manage the property. Beneficiary: The beneficiary ultimately benefits from the trust. The beneficiary has an equitable title. What are the responsibilities of the trustee? You have a fiduciary duty to the beneficiary. You have a responsibility to manage the assets wisely and in the best interest of the beneficiaries. The trustee is a person whom trust has been placed. Can the trustee use the property for his own benefit? No. You have to be loyal to the beneficiary. Can the trustee invest the property in lottery tickets? No. You have a duty of care and prudence. He has to treat the assets carefully. A deed of trust transfers title to the trustee...LOOK UP A declaration of trust is when the settlor declares himself as trustee for the benefit of himself during lifetime, w/ remainder to pass to others at this death. So, in declaration of trust the settlor is the trustee. 79

Can the trustee of the trust also be a beneficiary? Yes, but not the only beneficiary of the trust. If the trustee was the sole beneficiary, the rights would merge. To be a trustee, he has to owe duties to someone else. If there is no other beneficiary, no fiduciary duties can arise. Farkas v. Williams In this case, the items at issue were stock certificates. The decedent signed an application for the stocks. The stocks were in his name. It named him as the trustee for Williams. Did he sign any other documents? Yes. He signed a declaration of trusts as well. There is nothing to meet the attestion requirement her. Farkas was the settlor. Farkas was the trustee. The beneficiary is Williams. o If there is a beneficiary paid on the stock, who gets it? Farkas. Farkas does get some of the benefits. So, it is like Farkas is in every role. What rights has Farkas retained for himself under the declaration of trust? See p. 300 o Sell the trust and retain the proceeds o Change the beneficiary or revoke the trust If he revokes the trust, he can keeps the assets. Suppose Williams passed away leaving an heir, would Ws heir get the trust proceeds? NO. The trust would be revoked. The administrators of Farkas estate are arguing that the stock should be part of the estate. o The administrators argued that the provision was conditioned on surviving there was mere expectancy for Williams. They are arguing that it is more like a will. B/c it is more like a will and it wasnt executed as one, the stocks dont pass by the trust by estate. What are the two questions the ct. asks? o Did Williams have an interest at the execution of the trust? o Did Farkas retain such control over the subject matter of the trust as to render the trust as attempted testamentary dispositions? Did Farkas have too much control. Suppose Farkas bought the stock under his name, and then drafted the will bequesting the property to Williams. Williams would have mere expectancy. The ct. said that Farkas intended to give Williams a present interest in the property. There were restrictions as to what Farkas could do. By creating a trust and making Williams a beneficiary, Farkas as assumed certain obligations in caring for the trust shares. o F has a fiduciary duty to W. o If it were a will, he could do what he wants. What might be do w/ the stock that realistically could be viewed as fiduciary duty? o Give the stock away w/o any consideration o Sell it for far less than its value o Exchange it for worthless property o Put it up for his debt What if F did one of these things and Williams found out about it, what would happen? W would have a claim for breach of fiduciary duty. F could then immediately terminate the trust. So, as a practical matter, W really couldnt enforce a claim for breach of fiduciary duty. However, there is one way Williams could assert a claim Farkas does a breach and then dies, Williams could sue the estate. The ct. held that it was formal enough. F was aware that he was doing something of importance. 80

HW for Friday: pp. 308 322

3 March 2006
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7 March 2006
On p. 322, the authors begin a discussion of life insurance Whole Life Insurance: It is life insurance and a savings plan. There will come a point in which you will have a paid up life insurance policy, so you dont have to keep paying premiums. It is guaranteed for your whole life as long as you pay your premiums. Your beneficiaries will get a payment upon your death. This costs more. This gets sold more as well. Term Life Insurance: It only lasts for a term of years. The co. will only pay death benefits if you die during the term. What is the argument that most people only need term life? That is when you will need it the most. It is cheaper. For younger families, the time you really need to be worried about is when you need to be covered. Term life can cover you more at less cost. Wilhoit v. Peoples Life Sarahs husband was the insured. He died. The insurance went directly to Sarah. He could have set it up so that it went through his estate. How did he set it up that she would get paid upon his death? He just had to say that she was his beneficiary. This wasnt executed w/ the same formality as a will. o This was b/c the law in the state said that it was seen as an insurance contract. There was an exception to the wills contract; it didnt cover an insurance contract or a supplement thereto. o Why would you have this exception? Why would people not need the protections afforded by the wills act? People are more familiar w/ insurance. Does a transaction b/t an insured and the insurer provide sufficient protection? Yes b/c they are paying every month. It is more likely that that is what they intended to do. Does the insurer have any incentive to protect the insured and make sure it is following the insureds wishes? Yes b/c if they pay the proceeds to the wrong person, they may have to face lawsuits. The presence of the insurance co. that wants very much not to be sued and pay multiple people is enough to be similar to the wills act formalities. What does Sarah do? o She takes the proceeds. Then she gives it back to the insurance co. to hold in trust for her. What were the terms of the trust? o Earn interest at rate for 3.5% o She can withdraw whenever o There werent terms similar in her husbands contract. However, she could have left her money w/ the insurance co. and earned 3%. However, she took her money out, gave it back to the insurance co., and made a deal w/ them. Who are the other parties involved? o In the contract w/ the insurance co., she said for them to pay the proceeds to Robert Owens. Robert Owens predeceased her, so Thomas Owens took his estate. 81

o Robert Wilhoit is the legetee in her will. The will specifically said that this fund was supposed to go to him. If Mrs. W had already designated a beneficiary of these funds, why do you think she named someone different in the will? Since Robert died, that is what would stop it. So, she needs to come up w/ an alterative plan. How does the property pass? Does it pass pursuant to her will? Does it pass pursuant to the contract? It is passed according to her will. That is different though when Mr. W had the contract and it was paid to Mrs. W. In that case, the contract governed. However, in this case, the will governed. o If she had simply taken advantage of the option in the policy, then maybe that would be an agreement supplemental to an insurance co. and subject to statue of wills. However, here, she took the money in hand and negotiated a new contract w/ the co. Is there any policy basis for distinguishing b/t the two contracts? If Wilhoit died, what would happen?

Estate of Hillowitz The contract was in a partnership agreement. The partnership was an investment club. What did the agreement provide w/ respect to the death of one of the partners? The persons share of the partnership would go to the widow. The executors of the estate are challenging it. They think that it should go to the estate and not the widow. o What is the theory? It is an invalid attempt to make a testamentary disposition. He is trying to have a will w/o having going through the formalities of the will. o If it was seen as an invalid testamentary disposition, the estate and residuary beneficiaries would benefit. What does the ct. decide? Was this contract enforceable? Or was it invalid? The ct. held that the contract was enforceable. They suggested that it was similar to contracts that they would uphold, such as partners passing to other partners. That would be a joint and survivor arrangement. The ct. had to distinguish this case from McCarthy. o In McCarthy, it was a mortgage that provided that if any installments remained unpaid at the mortgagees death they should be held to A. The ct. held that it was invalid. o How does the ct. distinguish the two cases? There was a mere intention to make a testamentary disposition in McCarthy. o In this case, it seems like the husband was the member of the club. If he had gone to the partners and said that he wanted the property to go elsewhere, the partners probably would have changed it. It seems like he wanted his wife to get it; and thus a testamentary disposition. Payable on Death Contract: o Wilhoit wasnt going to give effect to it. In this case, the ct. held that it would give effect to it. o Can you have this provision in a contract that specifies who gets the property at death? Yes. Most jurisdictions follow the UPC. If we were deciding this case under the UPC, what provision would we look to? UPC 6-101(a) o There is a list of agreements that they will apply the payable on death contract to. There is a list of the types of contracts that you can have a payable on death provision. o It seems like the agreement in Wilhoit would fall under deposit agreement. Question 2 (p. 331) 82

This focuses on a lurking issue in Wilhoit. Robert Owens predeceased Wilhoit. If you had a will and the will named a beneficiary and that beneficiary predeceased the decedent, what would happen? The gift would lapse. Wills as a general propostion require survival of the beneficiary. If the person doesnt survive, it will fall into the residuary. However, the exception to that would be if there was an anti-lapse statute. What about w/ respect to contract law? The contract doesnt lapse. UPC has an anti-lapse statute for the payable on death context. See 2-706(b). o This tells us which beneficiaries are covered by the anti-lapse statute. The beneficiary has to be a grandparent, a descendant of a grandparent, or a stepchild of the decedent. If the person predeceases the decedent and is one of those people, then it would create a substitute gift. o Lets assume that we had to apply this statute to the contract in the Wilhoit case. Under 6-101, it is okay for Mrs. W to name Robert Owens as a beneficiary. Can we apply the anti-lapse statute under 2-706? A brother is a descendant of a grandparent. So, 2-706(b) would apply and create a substitute gift to Roberts descendants. So, Thomas might be entitled to a share under that provision. o Is that what Mrs. W intended to happen? Given the provision in the will, it seems like the UPC would be defeating her intent.

Cook v. Equitable Life Assurance Society We are dealing w/ the proceeds of a life insurance policy here. Cook named his first wife as his beneficiary. After that, they go divorced. He married Margaret and they had a son. Cook didnt make an attempt to change the beneficiary of the policy. He only tried to change it through a holographic will. His first wife ended up getting the proceeds. Why was his will ineffective to change the beneficiary under the policy? The contract w/ the insurance co. had a set of procedures that he had to follow if he wanted to change the beneficiary. What is the policy basis for upholding those contractual provisions? Why does the contract govern? The ct. prefers a bright-line rule. They want to prevent uncertainty. Suppose that is was possible for someone in a will to change the beneficiary of the life insurance policy. You are the company. The person in your records made a claim on the proceeds. What would you do? You would pay the person. o You dont want to have to wait until the will is probated. You dont people to be waiting forever to get their proceeds. o If you make people wait, you have defeated one of the reasons for life insurance immediate payment. Cook is the majority rule. When we looked at revocation of wills by change in family circumstances, we found that a divorce will result in a revocation of the spouses share. Does the same thing happen for non-probate gifts? No. It is easier to change a beneficiary than change a will. If in fact a divorce did have the effect of revocation, what would happen? It would make the process longer. Note 3. (pp. 332-333) Super will: It would annul the beneficiaries named in various non-probate instruments and name a new beneficiary. o They have this in WA state. Why would you allow that? You only have to change one document rather than going to every company individually. 83

Are there any arguments against a super will? o Someone could fraudulently write a super will. o The insurer wouldnt want to pay out until the probate is settled.

PENSION BENEFITS The Twentieth-Century Revolution in Family Wealth Transmission Why are pension benefits more impt? People are living longer. Someone can live for many years after they stop earning employment. What legal changes have made pension payments more impt? There are tax benefits by the government that have encouraged contribution to a pension plan. o Contributions to a pension plan are not taxed at all. It is like the govt is contributing to the plan by not taxing the dollars. o You are only taxed when you received the income. At that time, you are most likely in a lower tax bracket. o Also, there is tax deferral. Pension plans created a pressure toward annuitization. o An annuity is a payment that is paid ever year for the persons life. What does a traditional annuity do w/ respect to passing on property when you die? It is done. Once you die, it is gone. The emphasis on annunitazion has diminished. There is a shift from defined benefit plans to defined contribution plans. So, more employers are offering defined contribution plans and less defined benefit plans. o A defined benefit plan is when the employer promises to pay an annuity on retirement. The family doesnt get anything after the person dies. It will compute the amount that you receive as an annuity. o A defined contribution plan is an individual account for each employee. The employee and employer are both paying on the account. When you retire, you are entitled to that money as a lump sum. You will have a lump left over that will pass to the devisees. Note 2 (p. 336) If a person purchases an annuity and they exceed their live expectancy, do they still continue to get paid? Yes. What if the person takes out an annuity and then dies the next year? Oh well. They dont get anything else on a traditional annuity. However, companies are offering different type of annuities, such as a guaranteed number of years that it will be paid out or that it will be paid to both spouses until one person dies. Egelhoff v. Egelhoff David E had a pension plan. He participated in a co. pension plan. He named Donna, his wife, as the beneficiary. They were married at the time he named her. Since he named her, they divorced. Two months after the divorce, he dies. He had not done anything to change the beneficiary. The issue is whether the WA statute that revokes the wife as beneficiary one the spouse is divorced is preempted by ERISA. What is the language on ERISA on this? ERISA shall supersede any and all state laws insofar as they may not or herafter relate to any employee benefit plan. The ct. held that the law is preempted by ERISA. 84

Why is it preempted? The statute relates directly to the central issue of the benefit plan. What policy of ERISA does the ct. think would be undermined if we allow state law to rule? Boeing is a co. that has facilities in many states. One of the purposes of ERISA is for them to have a uniform pension plan in place. They dont have to worry about the laws in state to state. Breyer (dissent) thinks that when you interpret ERISA in this way, you give the ex-wife a windfall. How is she getting a windfall? She got her fair share when she divorced. She shouldnt get extra just b/c he wasnt able to change it. She is the beneficiary to the pension plan contrary to the decree of the divorce. o If we apply this statute in this manner, he is worried about the slayer statute. If we apply the reasoning of the ct., the slayer would still get the proceeds. However, the ct. says that they will deal with that when they get there. Also, the slayer statute is uniform in every state. o However, slayer statutes do differ from state to state. What do you think is going to happen here? o They arent going to give the benefit to the slayer. Could federal common law be a possibility here? YES. See p. 341.

HW for Thursday: Read pp. 342 360

9 March 2006
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HW for Friday: Read 360- 363 and the Schiavo (2/11/2000) Case on eReserve

10 March 2006
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HW for Tuesday: Read pp. 387 393; In Re Sharlene (840 NE2d 918); & Boston globe article, dated Feb 12, 2006

21 March 2006
Care and Protection of Sharlene Sharlene is a pseudonym. She was 11 years old. Ss mother was 16 when she was born. The biological father wasnt involved in her life. At age 4, she moved to her aunts house b/c she was sexually abused by the biological mothers boyfriend. The aunt legally adopted the child. The aunt adopted S as a single parent, even though she was married at a time. S was admitted to the hospital in 2005. She was physically abused. When she is admitted to the hospital, she was in a vegetative state. What life support measures was she put on? She was intubated, on a respiator, and a feeding tub. Was this a complete surprise that she was hospitalized as a result of abuse? No. There were 15 abuse reports. After each report, she is released back to her aunt. The found that the allegations were supported, etc. 85

What has happened w/ respect to her family members since she has been hospitalized? o The adoptive mother and the aunts mother were found dead. After S is admitted to the hospital, the department of social services kicked in? They filed a care and protection petition. When DSS has custody of S, what do they decide to do w/ respect to her treatment? They want to withdraw life support. They only waited 6 days after DSS was awarded custody. They have a hearing on the motion to withdraw life support. Two doctors testified at the hearing. They both agreed that there was no hope for recovery. One of them suggested removing the feeding tube and the ventilator. The other only wants to remove the ventilator. The doctors did know each other. They were peers in the community. They were the director and the associate director in the intensive care unit. After the hearing, what does the trial ct. do? They grant the motion to withdraw life support. The stepfather is challenging the withdrawal. His arguments are as follows: o I am a de facto parent; and thus, have a say in withdrawal of her life support. The ct. doesnt buy that argument. The definition of a de facto parent is on p. 6. What do you think is really driving this decision? At the very least, you knew what was going on, but you didnt do anything about it. Also, he said that he was going to plead the 5th. You can take his pleading of the 5th and draw inference against him b/c this isnt a criminal proceeding. What was the ct.s reading of the medical evidence? They believed both of the doctors no hope for recovery. The ct. calls the medical prognosis incontrovertible. The prognosis is that she wont be able to enjoy her life. It wont get better. The child is in a persistent vegetative state. o Did the doctors actually testify that she is in a persistent vegetative state? No. The doctors said that she is in an irreversible coma, but not a persistent vegetative state. What are the standards for deciding whether to remove life support? The trial ct. takes in substituted judgment and the best interest of the child. A substituted judgment is when the judge steps in the shoes of the child and thinks about what the child would want. A substituted judgment and the best interests of the child may not always be the same. See p. 7. Substituted judgment focuses on what that person would have done. How does this relate to the Schivao case? That was a substituted judgment case. What does the trial judge base the decision on? What conclusion does he reach to decide to remove life support? It seems like he relies more on the best interests of the child rather than substituted judgment. o See p. 8. The judge attributes the decision to the decision that S would have made. o There is nothing here to say that S would have wanted the life support removed. o The real reasoning is entirely best interest reasoning; but the ct. claims that it is a substituted judgment. The third issue is about whether the trial should be public. o There is a concurrence on this issue. The concurrence says that there is no social stigma that is going to be attached. At least when talking about a decision like this (withdrawal of life support), they think that it should be subject to public evaluation/scrutiny. This is different from the typical juvenile case. The public has san interest in observing the proceedings to make sure that the best interest of the child will actually be considered. You want the best interest of the child to be at the heart of the decision making. o What kind of problems does the concurrence see that public scrutiny might prevent? Judicial and Administrative Efficiency: State agencies have a limited budget. Public scrutiny is a way to ensure that these cases are decided on financial grounds. 86

After the ct. decision, what happens? S starts to breathe on her own. She starts breathing on her own the next day. She is also showing more signs of responsiveness; she could track a person w/ her eyes, she picked up a particular toy on command, etc. What did DSS do afterwards? They didnt implement the judges orders. They transferred her to another facility where she could receive therapy. Her biological mother can visit her once every two weeks. She has hired lawyers b/c she wants to have a role in the decision making process. One of the nurses told her that during therapy, S has been able to tap out a drum beat and can eat cream of wheat and eggs. HYPO: Suppose that the stepfather had not challenge the withdrawal of life support? o It is possible that the petition of the step-father made the proceedings more formal than they did otherwise. So, the judge may have been more careful in the process. o The only reason S remained on life support in Oct. was b/c of her stepfathers appeal. It delayed the process of them withdrawing the tubes before resolution of the appeal. What went wrong? How did we end up in a situation life this? (The ct. making decisions on inaccurate information) DSS blindly trusts the doctors opinions w/o questioning whether the medical opinions are right. There were lawyers involved in the case. One was a guardian ad litem and one was her lawyer for court proceedings. Both of her lawyers thought that it was best for them to remove life support from S. Is there anything that they might have done differently? o They could have gotten another physicians opinion from another hospital or even out-of-state. An independent doctor may have conducted his own tests and not worried about the opinions of the doctors in the area. This way he has no professional connections w/ any persons in the area. o The working relationship b/c the two medical experts could have affected what they said. Also, their personal beliefs could have affected their decisions. What about the timing? Was there anything that could be argued about the timing about the request to withdraw life support? It was only 8 days after she was admitted into the hospital. It doesnt seem like that is enough time to run the proper tests and truly observe her. At least w/ children, you need to wait a few months b/c they are resilient.

Courts all the time are making decisions based on factual evidence presented to them. How often do you think courts are drawing their legal decisions from facts that are wrong? Every piece of litigation that occurs, the judge is trying to figure out what happened. They arent there. They have to look at documents and listen to people to reconstruct what happened. Beck thinks that there is a fair amount of legal conclusions that are based on fiction. How long did this case occur after the Schiavo case? Schiavo passed away in 2005. So, the childs case only occurred about 6 months later. Is it possible that the Schiavo situation had an effect on this case? Yes. It could have caused the doctors to refine their treatment. They probably we also thinking, we dont want her to be on life support 15 years later like Mrs. Schiavo. ** Check out the website of Christian Faculty Forum ** He will send an email w/ the link.


We started this chapter on p. 387. We skipped subsection (a). 87

What happens when the beneficiary dies before the testator? It lapses. What do we call it when the beneficiary is already dead when the will is written/executed? Void Does it matter whether a gift has lapsed or is void? NO Common Law: If it lapses, it goes into the residuary of the estate. If a beneficiary of the residuary dies, then it goes to the testators heirs. If you had a gift to a class of people and one of the class member dies, the class members splits that share. What if you have a residuary clause that gave it to a class of people and one of those people died? You would apply a class gift rule. Estate of Russell Russell left two specific devises. She gave a gold piece and her diamonds to the P. Russell also in her will said that her friend (Quinn/D) and the dog will split the residuary. What does the P/niece want to do about the residuary disposition to the dog? She relies on the common law rule that if a gift of a residue is void or lapse, it goes to her by intestate succession. What does D want? He wants the money to go all to him so that he can take care of the dog. o He would say that the language was precatory (he was the residuary beneficiary but she asking him as a favor to take care of the dog). The ct. held that there were two named beneficiaries. Since the gift to the dog is void, the niece gets the dogs share. Do you think the ct. reached the right conclusion? The will stated what she wanted the niece to get and that is it. What evidence was there about her intent? She left a note saying that she didnt want the niece to get any of the estate except for the specific devises. We have been talking about lapsed gifts; but one thing that has an impact in this area is an anti-lapse statute? It substitutes other beneficiaries for the dead beneficiary if certain requirements are met. Typically, you are dealing w/ gifts to close relatives. UPC 2-603(b) Under the 1990 UPC, which beneficiaries are covered by the anti-lapse provision? Grandparent, descendant of a grandparent, or a stepchild or either the testator or the donor Under (b)(1), you have a rule that applies in the case of a gift to an individual that is w/in that category. If one of those people predeceases the testator, what happens under (b)(1)? You create a substitute gift in the descendants of the deceased beneficiary.

HW for Thursday: pp. 393 412

23 March 2006
UPC 2-603 Which beneficiaries are covered by the antilapse provision of the UPC 2-603? Grandparents, descendants of grandparents, or a stepchild 88

What does the UPC do under (b)(1)? You give a gift to them and do it by representation. You look to how closely the person is related to the testator and then divide it equally among the different classes. People equally related to the testator will share equally. See UPC 2-709(b). HYPO: Suppose you had a beneficiary, and he was one of the protected classes. He ends up surviving the testator by 48 hours. Would he be entitled to take? No. UPC 2-702 has the 120 hour survivor rule.

GA 53-4-64 What does part (a) do? It is an anti-lapse principle. How does this relate to the UPC? It defines the beneficiaries differently. In the GA statute, who is covered? Any descendant of a beneficiary is covered. It is descendants who are given the substitute gift. This is a lot broader than the UPC. The language says that you create the gift for the descendants if absolute and w/o remainder or limitation... What does this mean? If it was a gift by its nature required a life estate; or if it had some kind of qualification upon the gift, such as if X is still employed by my company; or a provision that specifies someone else to take if the beneficiary is not alive. What happens under the GA probate code if you decide that the gift is not absolute or contains a limitation and the person predeceases the testator? However, the limitation may tell you what to do if the person doesnt survive. It would lapse. So, 53-4-65 would tell us what to do. It would become part of the residuum. See 53-4-65(b). This tells what happens if the residuary lapses. GA changed the common law rule. They simply treat the residuary gift like a class gift. So, if a residuary beneficiary dies, his portion will go to the other residuary beneficiaries. o At common law, it would pass by intestacy regardless of whether the other residuary beneficiaries were living or not. o Example. Residue to A and B. A survives. B predeceases, leaving descendant C. What would happen to Bs share? Under 64(a), as long as the gift was absolute, the anti-lapse statute would apply, and it would go to C. 65(b) only applies where a gift to the residue has lapsed. You have to first go through 64(a) to determine whether the gift lapses or not. On p. 393, the authors ask a question. What would the average testator prefer the UPC or GA? The UPC would probably fit more people b/c if the beneficiary was a friend, you may not necessarily want it to go to that persons descendants. Why is it that you only substitute descendants or issue? Why not an heir or a spouse? The further distance away, the more likely the testator would it to go to his issue rather than the other persons. Allen v. Talley Who are the competing claimants to the estate? There are two surviving siblings out of 5 siblings. Those two claim that they get the entire estate. The competing claim is that her brothers surviving child claims that he should get his fathers share. He is relying upon the TX anti-lapse statute. What does the anti-lapse statute provide in this case? What do you do w/ the share of a beneficiary who doesnt survive? It goes to that persons descendants. The sister is arguing that the anti-lapse statute shouldnt apply b/c there are words of survivorship. It says to my living brothers and sisters. She is arguing that the testator only wanted the property to go to the siblings that were still alive after the testator died. It is fairly common for statutes to provide that you can draft around the statute. What does the ct. decide? The language does impose a requirement of survivorship. 89

Are there any other interpretations? It could mean living at the time the will was written. However, the ct. interprets it as meaning that the person must be living when the testator dies. Why should you read the will living to mean living at the time of death rather than living at the time of the execution of the will? The ct. focuses on the idea that the word living wouldnt serve any function in the will unless it is read to mean living at the time of her death. Is the word living pointless in her will unless it refers to living at the time of her death? It could be an explanation. If there were previously deceased siblings, there would be a stronger argument. The ct. also focuses on the phrase share and share alike. The ct. said that would mean nothing unless there was a requirement of survivorship. Is that compelling? It wouldnt serve a function unless there is survivorship.

Note 1 (p. 395) Part (a): Should you apply the anti-lapse statute and give As share to As son OR should it all go to C? As son would get a share. Part (b): Is that language clear enough to prevent you from applying the antilapse statute? Yes. It is clear enough to preclude the statute. Note 2 (p. 395 396) Look at UPC 2-603(b)(4). (b)(4) seays that if the will creates an alternative devise w/ respect to a devise for which a substitute gift is created, the substitute gift is superceded by the alternative devise only if an expressly designated devisee of the alternative devise is entitled to take under the will. o So you can designate an alternative devisee to take. Looking at UPC 2-603(b)(3). o Suppose you live my car to R if he survives me. R doesnt survive. What do you do under (b) (3)? The anti-lapse statute would be applied to that gift to R, assuming he is a correct beneficiary even though he didnt survive. o How does this relate to the law in the other jurisdictions? It is not a majority position. Most states hold that survivorship is required. GA 53-4-64(a). Beck thinks that they will treat the language as a limitation on the gift that makes it not an absolute gift. Thus, it would defeat application of the anti-lapse statute. Jackson v. Schultz Leonard was married to their mother but had not adopted the children. L purported to leave the house to his wife (the childrens mother). What is the language? See p. 398 o It goes to her and her heirs and assigns forever. What happened to the wife? She died before he did. The kids want to claim that they own the house. Could they claim under the anti-lapse statute? Could they claim a substitute devise? No b/c they are not lineal descendants of L. They are his step-children. What if you were applying the UPC? Would that work in favor of the children? No b/c the beneficiary is not a stepchild. The beneficiary here is the wife. She is not covered under the statute. What about under GA law? They would be covered. The anti-lapse statute applies to any beneficiary. So, the wife is an okay beneficiary. What would happen if the anti-lapse statute was given effect? It would escheat to the state. The D, third party, who would not like to have to buy the house, how would that person like to construe the language in the will? It deals w/ words of purchase and words of limitation. As the D would read it, 90

to her and her heirs and assigns forever, which are the words of purchase? To her is words of purchase. To her heirs and assigns forever are there to say that she gets a fee simple estate. What would you have to do to rule in favor of the step-children? You would have to read the and as an or. That is so both sets of words will be read as words of purchase.

Note 1 (p. 399) In that (Hofing v. Willis) case, the ct. said that you shouldnt rewrite the will. This is a more sensible construction of the meaning of the language. Which case do you think got it right? Jackson b/c you want to uphold the testators intent. How could you avoid that problem when drafting a will? You could be more specific. You have to cover the contingencies. You want to name the beneficiaries, contingent beneficiaries, etc. CLASS GIFTS There is a big different whether a particular bequest is a class gift or a gift to an individual. If a class member predeceases the testator, it will go to other class members. However, if it an individual person, then it will go to the residue of the estate or if the anti-lapse statute applies then to that persons beneficiary. Dawson v. Yucus The property was a 1/5 interest in her husbands farm. The testator became a owner of the interest through her husbands will. Her will gave interest to one nephew and interest to another issue. She gives it to those nephews b/c they are on her late husbands side of the family. The issue arises when one of the nephews predeceased the testator. The anti-lapse provision didnt apply b/c he was a nephew. If it is class gift, then the nephews share would go to the other. The other nephew already conveyed that share to the nephews children. If it is an individual gift, it would go to the residuary beneficiaries. How would you argue that this is a class gift? The have a common characteristic (they are both nephews). Her intent was that the property goes back to her husbands side of the family. The court holds that it is not a class gift. o Why? It talks about a gift to a class being uncertain at the time of the gift. The class can always increase or decease in size. In this case, each of their portions was certain and they were the only named persons. There were no generic descriptions of the class. Can that factor alone determine whether there is a class gift? NO o Why else shouldnt it be treated as a class gift? There is another portion of the will where she creates a survivorship gift. So, it is evident that she knows what she is doing. Also, there were other members of the class. In Re Moss This case has to do w/ a trust that holds some shares of newspaper stock. Who was the lifetime beneficiary of the trust? The settlors wife has as life interest. After she passes away, the remainder beneficiaries are the niece and children of his sister. What language do we have to construe? ...upon trust for the said EJ Fowler and the child or children of my sister Emily Walter... Who has predeceased the testator? EJ Fowler. So, we have to decide whether this is a class gift of not. 91

There is a class gift to the children of Emily. The question is how big is the class (1) EJ Fowler and then the class of children or (2) EJ Fowler and the children form a class. If we treat it as not being a class, then EJ Fowlers share would go to the residue. (It would only go to Fowlers children if there was an anti-lapse statute that applied. So, the gift would lapse and go to the residue of the estate.) If we did treat it as a class, the Fowlers interest would go to the children. Judge Lindley: He said that we should treated as a class gift. Thus, Fowler is a member of the class. o Is that outcome compelled by the case law in the jurisdiction? No b/c the case law in the jurisdiction is confusing. o So, why should we treat Fowler as part of the class? We want to uphold the intent of the testator. He thinks that you will be defeating the intention of the testator if you dont treat it as a class gift. We wouldnt want it to go to Kingsboro.

HW for Friday: pp. 412 415 (We will start w/ Romers opinion next class.)

24 March 2006
Get notes from beginning from Maria. I was called on. Wasserman v. Cohen The trust was created by Drapkin. It was an inter vivos trust. The trust functioned like an estate plan. She had a will. How did the documents interact? There was a residuary clause in the will. The residue of the estate went into the trust. It was a pour-over will. Earlier, we were talking about independent significance. Does this trust have independent significance? Yes. It was a revocable trust. What is the gift that we are dealing with? A specified apartment building At the time that she executed the trust, she owed the building. She owned it as the trustee of a different trust. She owed as the trustee of the ZPQ trust. The apartment building was never transferred into the new trust. After executing the trust, she sold the apartment building. She sold the building 6 months before her death for $575k. Wasserman wanted to get the money from the sale of the building. The money from the sale of the building went into the trust. W wants the trustee to pay her the proceeds from the sale of the building. The ct. decided that the gift was adeemed. That means that she doesnt get anything. Since the specific gift isnt in the estate anymore, she doesnt get the gift. The ct. applies the identity theory of admpetion. This is the traditional doctrine. o Identity Theory: If a specifically devised item is not in the testators estate, the gift is extinguished. There is a competing view. The intent theory of ademption is if the specifically devised item is not in the testators estate, the beneficiary may nonetheless be entitled to the cash value of the item depending on whether the beneficiary can show that this is what the testator would have wanted. This is a specific devise. It is specific b/c she is given a particular gift that is specified by name. The doctrine of ademption doesnt apply to a general devise. o What happens if the person doesnt have the money to cover the general gift? The executor may have to sell assets to get the money. The absence of cash will not make the devise ineffective. What if the will said that A will get $10k from the sale of Microsoft stock? What kind of gift is this? Demonstrative. Demonstrative gifts are not adeemed. You use the source specified; and then if you need to, you go to other assets to satisfy the gift. 92

What if you have evidence that the testator did not intend for the gift to be extinguished? What if W can show a letter from the testator that she wanted W to get the money from the building? It doesnt matter. Under the identity theory of ademption, actual intent of the testator doesnt matter. Estate of Dungan: The testator had some bonds. The bonds were called by the person. The testator bought new bonds to replace the old ones that were devised to a specific person. The testator even left a note saying that he wanted the new bonds to go the person. The ct. in applying the identity theory of ademption said that intent doesnt matter. The person will not get the bonds. The ct. decides to apply the traditional ademption doctrine to the trust. This is b/c the trust was part of the overall estate plan. The ct. talks about the virtues of the traditional identity theory of ademption. What does the ct. see as the virtues of the identity approach? Why stick to their pre-existing doctrine? o It has been around for 160 years. If they change, they will lose stability. o It is easy enough to draft around. The harsh results can be avoided by careful drafting. One of the thing ct.s point to is reliance. Most people draft wills based on that principle. If you are drafting a will, when would you rely on the identity theory of ademption? It could affect the content of a will in the sense that a lawyer would advise against specific devises b/c an item may not be available. Maybe lawyers would give this to clients as a way of doing estate planning after execution of the will. Footnote 24. The exceptions to the identity theory: o Walsh: It didnt operate as an ademption. Just b/c the conservator sold the shares doesnt mean that the person cant get the amount. o Bostwick: The stock is not adeemed. The conservator sold the stock. o In both of these cases, a conservator sold the devise. A conservator is more like a guardian. o Does that offer a rationale as to why the ct. wouldnt apply the ademption theory? Since it was the conservator that sold the property, that doesnt mean that testator wanted the property sold. There still a sense in which intention of the testator has helped shaped the doctrine. There has to be some kind of indication that the person wants it sold. o See pp. 409 410. Most courts have refused to apply the doctrine when a conservator acted in behalf of an incompetent or insane person. What if it was an agent acting on the power of atty? This is could be seen as different from the conservator case b/c the testator chose who the power of atty is. o See UPC 2-606(b). A durable power of atty and a conservator are treated as the same.

Problem 1 (p. 408) Second paragraph, the bank account hypo. This is a specific bequest. o Is this just a change in the investment? The change wasnt to cut out the beneficiary. It was just to change the assets. However, there are couple of cases in which the ct. has held that the gift is adeemed. UPC 2-606(a)(5) Problem 1 (p. 411) Does A gets the Rolls-Royce? It is a much more valuable piece of property than devised. What does it mean to be a replacement? o Similar use if they are serving the same function What if he bought two cars Honda and Rolls-Royce? What if he bought a motorcycle? o It seems like the person would get the Honda b/c that is closer in value to what the person devised. 93

o If there are two cars, how do you know which one is a replacement for the Ford? GA 53-4-66: GAs ademption rule The default rule is that if the testator gets rid of the gift, the person doesnt get the gift. GA codified the identity theory w/ exceptions found in GA 53-4-67. See 67(a). This subsection deals w/ replacement property. o How would we apply that to our Ford devise that gets sold and a Rolls-Royce is purchased? The statute assumes that the Rolls-Royce would become the gift. o Would this qualify as an exchange of property? Does exchange mean trade-in? No. o If it is exchanged for property of like character? Is the Rolls-Royce of like character? o What does character refer to? Character refers to the function it performs. An alternative reading is recreational, etc. Character could also refer to quality as well as function. How about the earlier hypo where you have the bank account changed to CDs? Section (a) would include it as something that could be passed on to the devisee. What if T devises Blackacre to A and sells it and buys Whiteacre with the proceeds, is A entitled to Whiteacre? Under UPC, what is the result? A would get Whiteacre. How would you decide whether land is a replacement? You could look at the size, value, attributes, location, etc. Under GA, what is the result? This broadens how you can compare the two properties. You could bring in considerations of function. Problem 2 (pp. 411 412) If we applying the common law, what would happen? She wouldnt get anything b/c they dont know where it is. They dont know whether they are even in existence. Under GA law, is she entitled to anything? o It is not possible to give the snuff bottles to Wendy b/c they arent there. o The question is whether we are going to compensate Wendy for the value of the snuff bottles. See 67(b). You could ask whether there is an insurance policy that could cover the absence of the snuff bottles. It is going to be hard to rely on 67(b) b/c we dont know when the bottle disappeared. Wendy would have to show that the bottles disappeared w/in the last 6 months. Under the UPC, is she entitled to anything? See 2-606(a)(6) o That provision would allow the devisee to gain monetary value that is equal to what the interest was. o If you have specifically devised property and it is not in the estate, the beneficiary under (a)(6) can still get money from the estate to substitute for the property. However, there are a few limitations. Some of the limitations are: date of disposition for the value (we dont know the value), and we need to know the testators intent. We dont know much on intent. The devisee has the burden of proof. o You get the money only to the extent that the devisee can show the required information. o Could Wendy should that ademption is inconsistent w/ the final distribution? It seems like there arent any. Stock Splits and the Problem of Increase 94

Old Fashioned Approach: Whether the bequest was specific or general; however, this doesnt take into account that a stock split is a change in formthe person still owns the same amount in the company Modern Approach: Absent a contrary showing of intent, a devisee of stock is entitled to additional shares received by the testator as a result of a stock split. Modern Approach: Stock dividends are treated the same as stock splits: the beneficiary gets them along w/ the other shares.

Satisfaction of General Pecuniary Bequests (Ademption by Satisfaction) Applies when testator makes a transfer to a devisee after executing the will. There is a rebuttable presumption that the gift is in the satisfaction of the gift made by the will. It applies to general pecuniary bequests but not specific bequests o When there is a specific bequest, the gift is adeemed by extinction. Satisfaction may also apply to residuary and demonstrative gifts. Satisfaction depends upon the intention of the testator Some states require the intention of a testator to adeem by satisfaction be in writing UPC 2-609: There is no presumption of satisfaction by a gift to a child. Exoneration of Liens Common Law: When a will makes a specific disposition of real or personal property that is subject to a mortgage to secure note on which the testator is personally liable, it is presumed, absent contrary language in the will, that the testator wanted the debt to be paid out of the residuary. UPC 2-607: A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts. Abatement: arises when the estate has insufficient assets to pay debts as well as all the devises; some of the devises must be abated/reduced UPC 3-902: If the testamentary plan would be defeated by usual order of abatement, if the shares of the distributees abate as may be necessary to give effect to the intention of the testator. Should make substantial devises in the form of shares of the residue

HW for Tuesday: pp. 415 423

28 March 2006
Get beginning of class notes from Maria. Computer totally shut off on me. Under UPC 2-606 (a)(6), it says that the devisee can get the monetary value of the ademeed gift. However, the residual claimants of the estate would oppose it b/c their share would be reduced if the person received the value of the gift. UPC 2-606(a)(3) doesnt apply b/c the ademption occurred before the testators death. If you have a technical defect that doesnt allow you to rely on (a)(1) (a)(5), the person may be able to rely on (a)(6). What is a condemnation award? If your property is condemned, you are given a certain amount of money for it. 95

The UPC provision for condemnation is UPC 2-606(a)(2). GA is 53-4-67(c) is the provision for condemnation. What is the relation b/t the two? In GA, the property has to have been taken w/in 6 months prior to the testators death. The UPC says that the specific devisee has the right o any amount that is unpaid. So, the GA provision is similar to the insurance provision. Are there any portions of 2-606 that do not have a partner in the GA Code? (a)(6) doesnt have a parallel in the GA code. Also, there is not provision that it similar to UPC (a)(1). The testator has some specifically devised obligation that is covered by mortgage, then the devisee may be able to get the benefit of the foreclosure. STOCK SPLITS AND THE PROBLEM OF INCREASE HYPO: Suppose that a testators will gives 10,000 shares of A stock to a devisee. The stock then goes through a 2-for-1 stock split. If a person owns 10,000 shares, then the person will end up with 20,000 shares. The will devises 10,000 shares of A stock to Mary. At the time of death b/c of the split, the testator owns 20,000 shares. The older approach would ask whether it was a specific or general bequest. If it is a specific bequest, she would get the extra shares. If it was a general gift, then she wouldnt get the shares. How would you decide whether the above devise was specific or general? You would have to look at the wording and the surrounding circumstances. Under the UPC 2-605(a)(1), what would happen? The beneficiary would get the additional shares. What about the more modern cases? The case law today focuses on substance rather than form. So, they are more willing to follow the market values of what it is worth after the stock split. If there is a stock split, then the person will get whatever results from the stock split. So, the devisee gets the extra shares. This is b/c they are equal in value. If there is a stock split, giving the extra shares, means that the person will have the same ownership in the company. What if A co. merges w/ B? What happened is those that owned A stock before, now own B stock. What would happen to the devise in the will? The person would get the stock. SATISFACTION Satisfaction applies when the testator makes a transfer to a devisee after executing the will. You are looking at the lifetime transfers from the testator to the beneficiary. We are deciding whether that lifetime gift applies to the devise in the will. This is similar to the doctrine of advancements. The doctrine of advancements applied under intestacy law. How is the advancements different from satisfaction? The terminology differs b/t the UPC and the GA Probate Code. See UPC 2-109. With advancements, it is when the person died w/o a will. Satisfaction occurs when the person has made a will. The term advancements applies to intestacy. The term satisfaction is applied when the person has created a will. See GA 53-1-10. (a) talks about satisfaction. It applies when there is a specific gift in a will. (b) talks about advancements you talking about a perspective heir or beneficiary. So, advancements is sometimes used when there is a will in GA law. The difference b/t advancements and satisfaction deal w/ the category of the gifts. 96

o You use the word advancement when talking about a demonstrative, general , or residuary testamentary gift. You use the word satisfaction when it is a specific testamentary gift. o GA treats the term advancement more broadly and the word satisfaction more narrowly than the UPC. o The terminology differs. Does that matter in terms of substance of the analysis? No. It seems like there is a similar standard for both of them. The terminology doesnt make a practical difference b/t the rules are the same. UPC 2-609 is the satisfaction provision. o What must be shown to conclude that a lifetime transfer of property was a satisfaction for a gift under the will? If the will tells you that the gift is satisfied, it is sufficient. Also, if the testator said in a contemporaneous writing that it was a satisfaction, then that suffices. Also, if the devisee acknowledges in writing that the gift is in satisfaction (there is no time frame for this). GA 53-1-10. o It is treated as a satisfaction if it is intended to be treated as one. o A satisfaction is proved it the will provides for the deduction of the lifetime transfer or if it is declared in a writing singed by the transferor w/in 30 days of making the transfer or acknowledged in writing signed by the recipient at any time. How is GA different from the UPC? The GA 30-day time period is more specific than the UPCs contemporaneous. In GA, the writing has to be signed. Signature was not specified in the UPC.

HYPO: Assume that O has a will. The will says I give my gold Rolex watch to Bob. Later on, O makes an inter vivos gift to Bob of a Rolex watch. When O dies, he doesnt have a gold Rolex watch left. Bob claims that he is entitled to the value of the gold Rolex watch from the estate. Has the gift of the gold Rolex watch been satisfied under the UPC? o Under the UPC, Bob can argue that there was no satisfaction of the gift b/c there was nothing in writing about the gift to Bob and there was nothing written in the will. Thus, the gift wasnt satisfied b/c there is no writing. o So, Bob will claim the value of the gift under 2-606(a)(6). o Is the residuary beneficiary going to be happy w/ that? No. What argument would he make that 2-606(a)(6) doesnt apply? He has already received the pecuniary wealth of the gift. The burden of the proof is on Bob. He has to show that ademption would be inconsistent w/ the manifestation of the plan of distribution. It seems like there is sufficient evidence to show that the gift has been adeemed b/c he already gave the watch to him o Under the UPC, the residuary beneficiary cant claim ademption by satisfaction b/c there was no writing. However, the residuary beneficiary can claim ademption by extinction b/c the gift isnt in the estate. What would happen under GA law? GA 53-1-10 o We cant say the gift is adeemed by satisfaction b/c of the writing requirement under (c). o However, GA law applies the identity theory. o Since the watch is not in the estate at death, the gift is adeemed by extinction. None of the exceptions apply. HYPO: Os will says gold Rolex to Bob. During his life, O gives the Rolex to Bob. Later on, he buys another gold Rolex. So, at the time of his death, O owns a gold Rolex watch. Under the UPC, how would we analyze that? o Is there a satisfaction of a gift under 2-609? No b/c we dont have the written evidence. 97

o Is Bob entitled to the watch in the estate at Os death? If arguing for Bob, you would argue that under 2-606(a), a specific devisee (Bob) has a right to a specifically devised property (gold Rolex) in the testators estate at the testators death. o Is you are the residuary beneficiarys counsel, how would you read the language so that it wouldnt apply to the gold Rolex? The specifically devised Rolex is the one that he got. The Rolex that he meant to devise is the one that he already gave Bob. When he wrote the will, he meant the watch that Bob already received. o What would Bob argue? There is a proposition that the will speaks at the time of death. So, when the will is talking about the gold Rolex, it is referring to the watch in ownership at the time O died. That is not an iron clad rule. GA doesnt apply the rule. The ct. will only pull it out if it thinks that it will effectuate the intent of the testator. o What if Bob convinces the ct., that the watch he has is not the one in the will? What would 2606(a)(5) do? That was just a gift and this Rolex is the one that he really wanted to give me. How would we analyze this under GA law? o It wouldnt be a satisfaction b/c there isnt a writing. o Could Bob claim entitlement to the watch in the estate at the time of death? Again, you have the issue of when does the will speak. You have the issue of what watch is the will speaking to. o If you get past that, can Bob rely on 53-4-67(a)? When he exchanges property for other property of like character, then the gift shall not fail Is there any reason why Bob cant claim this as a replacement? If we think of anything, let Beck know. It seems like it will always been seen as a replacement.

EXONERATION OF LIENS We are talking about a piece of property that has been devised; and that property is subject to a lien or a mortgage. The question is whether the devisee takes the property w/o the lien. If the debt gets paid off by the estate, then the person doesnt have to worry about the lien. Common Law: The debt would be paid out of the estate and then the property would pass to the devisee. The person receives the property free of all encumbrances. UPC 2-607: It reverses the common law, unless there is other direction. You take a specific devise w/ the mortgage even if there is direction in the will to pay all debts w/ the residue. ABATEMENT Abatement occurs when there arent enough assets in the estate to pay off all the debts and make all of the transfers provided for in the will. We have to decide who will lose their testamentary gifts in order to pay off the creditors. UPC 3-902(a): The default rule under the UPC is that you start by using the property not disposed of by the will; then the residuary devises; then the general devises (it is a dollar amount w/o telling you anything about where to get the money); and finally to the specific devises. 98

What about demonstrative devises? An example is $10 from a certain account. It tells you the amount and the source. Suppose you have a gift that would be treated as demonstrative under GA law, but there isnt enough there. What does the UPC do? You give up to the amount available in the estate. The amount that is actually covered by the source is treated as a specific devise to the extent there are funds to pay it; and it is treated as a general devise as to the amount that the funds are insufficient.

HW for Thursday: pp. 423 430

30 March 2006
We were talking about abatement at the end of last class. The UPC section is 3-902. What is the default rule under the UPC? The default rule under the UPC is that you start by using the property not disposed of by the will; then the residuary devises; then the general devises (it is a dollar amount w/o telling you anything about where to get the money); and finally to the specific devises. How did the UPC deal w/ a demonstrative devise? It treats the devise as two different gifts specific and general. o Suppose there was a gift of $10k from sale of stock. The sale only brought in $7k. The $7k would be the specific, and the $3k would be treated as the general devise. UPC 3-902(b). What does it tell us about the issue of abatement? If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the other of abatement in (a)... o So, you can come up w/ your own plan of abatement. o What might be a situation under which this provision you could override abatement under (a)? What kind of purpose might be defeated if you apply the default rule? If the testator wants to take care of a spouse/relative and also wants to donate to a charity...general legacies to a wife or a relative are to be preferred to legacies in the same class (see pp. 414 415 in book) The GA provision is 53-4-63. What is the order of abatement? Residue, then general devises, then demonstrative gifts, then specific gifts Can the testator under the GA statute change the order of abatement like in the UPC? Yes. Does the statute say anything about exoneration of liens? o Exoneration of liens is the question of when you have a piece of property that you want to devise, but it has a lien subject to it. Do you pay off the debt out of the estate and pass the property w/o the lien or do you pass the property subject to the debt? o Under the UPC, it says that the property is passed subject to the mortgage. This was a reversal to common law. o Is there anything in the GA statute that speaks to the exoneration of liens? See subsection (a). The debts of the testator shall be paid out of the residuum. Example. There was a GA case in which the person passed two cars that were subject to a debt. The ct. held that the debts should be paid out of the residue of the estate. This codified the common law. Problem. Suppose that T leaves a will. The will provides Blackacre ($10k) to A, $15k to B from Magellan acct. (which only contains $10k), $5 to C, and residue to D. At the time of death, the assets in the estate are Blackacre (worth $10k), the Magellan acct. (worth $10k), $15k cash. 99

If there were no debts to be paid, how would we distribute the estate? o You would start w/ Blackacre. That would be given to A. So, A is getting $10k. o B would get all of the Magellan acct. What about the fact that there is a shortfall? This is a demonstrative gift. B would get his $15k b/c this is a demonstrative gift. o C would get $5k. o D would get $5k. Now, lets assume that there are some debts. We need to come up w/ $17k to pay off creditors. Under the UPC, how would we come up w/ that $17 increment that we need to pay. o We look at UPC 2-902. So, we take $5k of the residue from D. There is a demonstrative devise to B and C. So, we take $5k from C and we take $5k from B (the general gift part). We would take $1k from B from the portion of the gift that is treated as specific. We will also take $1k from A. Does it matter that the gift to A was real property? Does that affect abatement? No. As a practical matter, how can you abate a gift of real property, like Blackacre? One option is that A could get Blackacre free and clear and contribute $1k. The 2nd option is that A could sell Blackacre and receive the proceeds after the debts have been paid. The 3rd option is borrowing $1k against Blackacre and passing it to A subject to a mortgage. What is the distribution under the UPC? $9k to A and $9k to B. o What about the GA Probate Code? How would we resolve this problem under GA? We would take $5k from the residue. Then we would take the $5k general gift from C. The other $7k would come from B. What is the distribution under GA Probate Code? $10k to A and $8k to B.

HYPO: We have Fred and Francis. Fred makes $30k per year; and Francis makes $70k per year. If we were in a common-law state (separate property state), who would own what? Each would own their own earnings. What if you were in a community property state? Each spouse would own of the community property ($50k). HYPO: Assume that before they got married, Francis bought a house w/ the title in her name. After the marriage, Fred inherited a car from his Aunt. Who would own the house and car? Each person would own their own. If you receive property as a gift or inheritance, it is considered separate property. Premartial property is also considered separate property. This doesnt matter whether we are in a community property or a separate property state. HYPO: Assume that they both die at the same time. They keep their earnings in separate accounts. When Francis dies, her will says, everything goes to her brother Bill. When Fred dies, he says that everything goes to Sue his sister. In a separate property jurisdiction, what would happen? Bill would receive the property that Francis own; and Sue would receive the property that Fred owned. Sue would get a car and $30k. Bill would get $70k and a house. 100

What if you were in a community property jurisdiction? Sue would get the car and $50k. Bill would get the house and $50k.

How do the two systems of property view the obligations of marriage? Community property is based on the idea that they are in a martial partnership; and that all decisions are made equally. o What if you are in a community property jurisdiction but only one person works? It is still split 50/50. Even though one is only working, both are contributing to the marriage and helping that one earn the income. Which system provides greater protection for the surviving spouse against disinheritance? o It could depend. Sometimes where you have a situation where both the wife and husband worked, the wife would do better off under community property rather than a separate property estate. HYPO: Assume we have H and W. H is working outside the home; W is not. They were married for a year. Before they married, H had $300k. After the marriage, H earns $30k per year. We are assuming that H left a will disinheriting W. If you are in a community property state, what would W get? She would get $15k. What if you were in a separate property state? W would get an elective/forced share. In most separate property jurisdictions, all but GA, she would get a force share of all the property. If we applied a 1/3 share, she would get $110k. This is b/c the elective share is applied to marital as well as premarital property. She gets 1/3 of the $330k. Under this hypo, she does much better under a separate property state. HYPO: Suppose that Hs premarital property is $30k, and now the martial property is worth $300k. In a community property state, W would get $150k b/c $300k is the martial property. In a separate property state, W would get $110k. SOCIAL SECURITY When someone has vested SS benefits and dies, what is the right of the surviving spouse? The spouse automatically gets it. Can the employee change it so that the benefits go to someone else? NO. The statute compels the property to go to the spouse. PENSION PLAN If you have a pension plan that is governed by ERISA, what does it require w/ protection for the surviving spouse? The spouse has to have survivorship right in the pension plant. Suppose the employee begins to take the pension and then dies, what would happen? It will be paid as a joint and survivor annuity to the spouse, unless he/she waivers. It means that they will get an annuity during their joint lives and the survivor is going to get payments after one of them passes away. Problem (p. 421) Egelhoff had a state statute that said that if there is a divorce, pension rights are cut off from the spouse. However, ERISA preempted that. So, the surviving former spouse is entitled to the benefits. 101

What if W had remarried afterwards and then passed away? Who would be entitled to the benefits? The spouse at the time of death. o This is a way that ERISA differs from community property principles. It could be that most of the pension benefits were earned during the first marriage. However, the remarriage vests the pension rights in the 2nd spouse. What would be the result if W had changes the death beneficiary to her sister S after the divorce? o W could change the death beneficiary of the pension plan subject to the divorce decrees.

The next kind of protection for surviving spouses is a HOMESTEAD EXEMPTION. That means that the spouse has the right to occupy the family home for the remainder of his/her life w/o worrying about creditors. However, homestead exemptions do not always apply like that. In some jurisdictions, the homestead applies to the entire house; however, in other jurisdictions, it applies only to a certain amount. In GA, the homestead exemption is $5k. What does the UPC say? See 2-402. It recommends a $15k homestead allowance. o What about creditors of the estate? What priority do they have in relation to the $15k? They have priority to claims after they take out the $15k. The homestead allowance has priority to creditors. PERSONAL PROPERTY SET-ASIDE This is the right of the surviving spouse to have set aside certain tangible personal property of the decedent up to a certain value. There is a certain amount that is protected against creditors. The UPC under 2-403 sets the value up to $10k. So, under the UPC, the decedent can only set aside $10k. This set-aside is ahead of claims by creditors to the estate. FAMILY ALLOWANCE It is an allowance that the estate provides to the spouse and minor children to maintain and support a certain standard of living. What is its relative priority? It is ahead of everything except the homestead allowance. So, it is ahead of the creditors. Family allowance is not chargeable against any benefit. This is an amount they get to in addition to anything else they get from the estate.

HW for Friday: pp. 430 438

31 March 2006
Get notes Absent b/c of interview w/ Winegarden

HW for Tuesday: pp. 438 - 455

4 April 2006
On Friday, for half of the class we will have a speaker. 102

In Re Estate of Cooper To whom did Mr. Cooper leave his property? His leaves some real estate to a former boyfriend and the remainder to his current boyfriend. o The current boyfriend wants to be recognized as a spouse of the testator. What does the ct. decide that surviving spouse means? The ct. said that the boyfriend is not a surviving spouse b/c they focus on the traditional understanding of a spouse and the definition that a spouse is a husband or wife. What is the constitutional issue that the boyfriend raises? He raises an issue under the equal protection clause. The ct. applies the rational basis test to EPC issue. The ct. said that there is a rational basis for how the state statute is written. o A rational basis test doesnt insist upon a perfect fit b/t the legislative means and ultimate view. o Baker v. Nelson: There was a homosexual couple in Minnesota that wanted a marriage license. The case was appealed up to the S. Ct. The S. Ct. dismissed it for want of a substantial federal question. This is deemed as an opinion on the merits. To uphold the statute, the ct. has to include that the definition of marriage is rationally related to a state interest. What are the state interests involved here that the state can limit marriage to opposite sex couples? o They talked about procreation. If the interest is one in providing a relationship for children to be raised, the statute shouldnt be limited to opposite couples. o Morality Is it sufficient that a majority of the state population believe that certain relationships should be treated as marriage while other should not? Lawrence: This invalided TXs law against sodomy. In that case, the ct. called into question whether a state can legislate on a certain issue based on a majority of the state population. That was a criminal statute. o What about the fact that marriage involves certain financial benefits? Some of the benefits include the elective share, end-of-life decisions, SSI, Medicare, pension benefits (ERISA), etc. Could you argue that marriage is a subsidized relationship by the govt.? Yes. Does that provide a rational basis for limiting the scope of marriage to opposite sex couples? Are there any states that permitted same sex couples to marry? Massachusetts Are there any states that have done something comparable w/o having marriage? VT has civil unions. In VT, their S. Ct. said that the legislature had to provide something equivalent to marriage for same sex couples. HI provides for reciprocal beneficiaries. CA has something as well. CT at one point last year was considering legislation. Any other developments in the law? Federal Defense of Marriage Act (no state has to recognize a marriage from another state) o A number of states have passed laws in the wake of the FDOMA in which they declined to give recognition of same sex marriages. o There have been 19 states that have amended their state constitutions to make the traditional definition of marriage a matter of constitutional issues. HYPO: Suppose a couple entered into a civil union in VT. o Would either be eligible for SSI benefits? NO The DOMA defined marriage for purposes of federal law as well. 103

HYPO: Suppose a couple entered into a civil union in VT. They move to GA. One of them dies. One claims to be a surviving spouse. Would GA recognize this union? No o Is this a marriage? No b/c VT doesnt even define it as one. It is a civil union. There is a state statute that passed under the authority of the DOMA...any marriage issued to persons of the same sex...shall be void in this state o GA Ct. of Appeals was presented this issue. It dealt w/ a couple that had a divorce decree. One of the members of the couple went to VT and had entered into a civil union. (Burns v. Burns, GA Case) The case held that a VT civil union is not equivalent to a marriage under GA law.

Article 4 of the Constitution is the Full Faith and Credit Clause. The clause states: Full faith and credit shall be given in each state of the public acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Does Congress have the ability to authorize states not to recognize marriages entered into in other states? You have the effect thereof. The DOMA purports to give states authority not to recognize same sex marriages of other states. o Does the FF&C Clause give congress the power to do what they did in the DOMA? Maybe Beck thinks that this will be a litigated issue. There could be a challenge that Congress went beyond its authority. What are some of the features that have to be present under the traditional understanding for a marriage to be contracted? Two persons One male and one female Adults or some sort of age requirement; consent to enter into the marriage relationship No incest (close relationships) Lifelong relationship Exclusivity HYPO: Suppose that a state varied other elements of the western tradition of marriage. In portions of the West, it was common to have polygamist relationships. Do the other states have to recognize marriages in those contexts? Would the Full Faith and Credit cause the other state to give effect to this marriage? Does the DOMA apply to this? This has arisen in the context when one state permits 1st cousins to marry, but not in the state they move to. Cts. have recognized a public policy exception. In some instances, a state is allowed not to give effect to marriages entered into in another state based on public policy. HYPO: In portions of the world, children are given in marriage sometimes. Suppose you have a young girl that was given in marriage. They leave there home and come to the US. When the young woman passes away, could the surviving spouse make an election? No. Full Faith and Credit is not going to apply to a marriage entered into another country. It still does say that the state has to give effect to the acts and records of the other state. Sullivan v. Burkin What powers did he retain over the trust? Income was payable to him during life, right to revoke the trust at anytime 104

He was the trustee when we was alive The issue is whether or not the trust is considered part of the estate. The wife wants to claim an elective share of the trust. They were no longer living together when he died; but they were still married at that point. The MA ct. holds that it was okay for the husband to use the trust to disinherit his wife. The ct. held that it was not part of the estate for purposes of the elective share. The ct. decided based on prior precedent in the jurisdiction. What about future cases? They overruled that precedent for the future cases. Why did they abandon the precedent prospectively? There have been considerable public policy changes since 1945. The interest in the property has been increased by divorce. A divorced spouse should not get more than a surviving one. So, the ct. thinks it is odd that she could get half if it b/c of divorce but not if they remained married. The assets of an inter vivos trust created during marriage for which he has a general power of appointment...will be included in the estate o General Power of Appt: He has control over the property. The spouse has the power to determine what will happen to the property. What if he has a power of revocation? That would be treated the same as a power of appointment. Could he or she use the property for his or her own benefit, either by revocation or some other means, it will be included in the estate. See pp. 445 445. Why do you suppose the ct. focuses on the powers retained by the decedent rather than the other ct. decisions? The other tests are difficult to apply. It is a lot easier to determine what powers the person retained over the trust assets and make the decisions based on that.

Bongards v. Millen They were asking for the application of the Sullivan decision in a new set of facts. What was different about the trust in the Bongards case? o Here, we have a surviving spouse wanting the assets of the trust to be put into the estate so that she can get a portion of it through the elective share. o In this case, the trust was created by her mother; but she had the power of appointment. The ct. held that this trust is not subject to the elective share. It is not part of the estate. Is there a statutory basis for the outcome (not part of the elective share)? The traditional term of estate would not include the assets of a trust created by a third party. o However, could you say the same for Sullivan? Sullivan was necessary to effectuate the statute. If they didnt decide Sullivan the way they did, people could put part of the estate in trust to keep their spouse from getting to it. In Sullivan, they are closing a loophole in the state. If they held in favor of allowing the trust, then they would be expanding the statute. Note. It would depend on what law the state would apply. You have to decide which states law will govern the elective share MA, where they resided, OR CT, which the trust was created Cumming: Cumming would have applied CT law law where the trust was created. Clark: Clark would have applied the law of where they are domiciles MA. UPC 2-202(d): It applies the law of where the person is domiciled. o UPC 2-703: It contains an exception. It is determined by the local law of the state selected in the governing instrument, unless the application of that law is contrary to the provision relating to the elective share. So, there is a limit to applying the law. 105

When we talked about the UPC elective share, we said that we get a percentage and apply it to the augmented decedents estate. The augmented estate takes into account the assets of both spouses at the time of death as well as certain assets that have transferred at certain points. You apply a percentage based on the percentage of the marriage. UPC 2-204: The value of the augmented estate includes the value of the decedents probate estate, reduce by funeral and administration expense, homestead allowances, family allowances, exempt property, and enforceable claims. UPC 2-205: This provision tries to capture all non-testamentary transfers to people other than the surviving spouse. This is non-probate transfers to those other than the surviving spouse. Subsection (1) includes all situations in which the person owns the property before death, but it passes outside of the probate after death, such as payable on death accounts, insurance proceeds, joint accounts, etc. What about revocable trusts? Is that included under 2-205(1)? Yes. It would be included in 2205(1)(i). Subsection (2) deals w/ property that is transferred during marriage. 2-205(i) includes transfers such as an irrevocable trust where the decedent gets the income from. 2-205(ii) includes trusts created during marriageif you have a say about what will happen to property in trust, then it is included in the augmented estate.

HW for Thursday: Read GA Probate Codes 53-3-1 to 53-3-10, eReserve Richards and Driscoll

6 April 2006
In the last class, we had begun talking about UPC and the augmented estate. We were in 2-205(1) and (2). 2-205(3). What is this provision about? It is a two-year look back period from the time of death. There are certain things that will be included. o 2-205(3)(iii). What id going to be included under the 2-year look back period? Any transfer of property made to or fore the benefit of a person other than the decedents surviving spouse. The transfer has to be more than $10k in order for it to be included in the augmented estate. 2-206: Non-probate transfers to the surviving spouse o 2-206(3). Anything that would have been included in the augmented estate in 2-205(1) or 2205(2) or 2-206 if given to a person other than the spouse will be included in the estate 2-207: In the augmented estate we are including the surviving spouses property and any transfers made by the surviving spouse that would be included in the augmented estate. 2-208: It gives us a limitation on what gets included in the augmented estate. o 2-208(a) excludes non-probate property that the decedent transferred to others if there is consideration. So, if the decedent sold the car, then the money for the car wont go into the estate. Calculating the Augmented Estate: o 2-204: $200k (various) o 2-205: $100k ( securities given to brother); $100k (gift to a relative, the gift was for $110k, but subtract out $10k) o 2-206(1): $50k for decedents half (there is a $100k home that they owned jointly) 106

o 2-207: $50k (the other half of the house owned by surviving spouse) o The augmented estate is $500k. Assume that H and W had been married for 8 years, not yet 9. Hs will leaves $10k to W and the rest of the estate to others. W decides she will elected against the will. What will she get? o UPC 2-202(a). She will get 24% of the augmented estate. .24(500k) = $120k o We look at 2-209 to determine how to satisfy her share. 2-209(a)(1). We look to things that we included in the estate under 2-206. We first look at the half of the house that was in the decedents name. That means that $50k will be applied against her elective share. We also look at property included in 2-204. So, the $10k in the will would be counted against her elect share as well. 2-209(a)(2). Under 2-207 we included the $50k share that she owned in the home. We take 48% of the 2-207 property. So, we have $24k. 2-209(b) tells you what you do if you still have some elective share that isnt satisfied by 2-209(a). We look at the property that was included in the augmented estate under 2-204 and 2-205. However, you do not include the property added under 2-205(1)(i) or (iii). So, we are looking at the $190k of property that didnt go to the spouse and the $100k of securities, but we are not looking at the gift given. It will be equitably apportioned amount the remainder of those in the estate. This would satisfy the rest of the elective share under (b). 2-209(c). If it is still not satisfied, then you can go after property left in the augmented estate, including gifts given 2 years ago, etc.

Problem 2 (p. 450) Is the wife able to reach into the trust? 2-205(2) only deals w/ property transferred before marriage. If the trust was created before marriage, then 2-205(2) wont apply. However, if he made the transfer after they were married, then it would be included in the estate. In Re Estate of Garbade The wife signed a prenup. It said that each of the parties waived the right to equitable distribution of the community property and elective share. However, there was a $100k insurance policy. Can you waive your right to an elective share? YES Why is she claiming that the prenup didnt effectively waive her right to the property? She said that she didnt fully understand the agreement. o Was that her own fault? What was her explanation? She said that it was her husband made her do it. She alleged fraud and duress. The ct. said that the wavier is valid. What about the fact that she didnt have an atty? She was advised to obtain independent counsel. What about the fact that she didnt read it? That was her own fault. She should have read. In re Grieff There was an unequal relationship b/t the two. Because of this, the burden of proof is shifted to the other party to show that the prenup didnt result from overreaching or fraud. Under the UPC, are agreements waiving your rights as a spuse enforceable? Yes. See UPC 2-213(b). o Under (b), what limits are there? When will an agreement waiving rights not be enforced? If the person is didnt execute voluntarily, then the agreement is invalid. The agreement is also invalid if the wavier was unconscionable and the person was ignorant. 107

o UPC 2-213(d). If you have a waiver that says that you are giving up all rights, what are you giving up? Homestead allowance, elective share, exempt property, family allowance, property that would pass intestate succession, property that would not have passed to you under a previous will YEARS SUPPORT 53-3-1(c). The surviving spouse and minor children are eligible for years support. 53-3-2. A surviving spouse cannot get years support if he remarries or dies before filing the petition. A minor childs right is barred by marriage or death by age 18. What if you had a child born out of wedlock and wants to make a claim for years support from the biological father, can they do that? Yes. The child would be an heir. If you can establish that you would be entitled to inherit, then you entitled to years support. 53-3-5. You file the years support petition in the probate court having jurisdiction over the decedents estate. You have 24 months from the date of death of the decedent to file the petition. In the petition, you have list all the property that you want as years support. 53-3-6. This gives notice to all interested persons. If you do not object to the petition, then the property will be granted. Notice allows interested parties to object. 53-3-7(a) tells us what happens if there is no objection. If no one objects, you get what you asked for. The ct. doesnt hold a hearing. 53-3-7(b) says what happens if someone objects. The ct. has a hearing and makes a decision. The standards of the court are in 53-3-7(c). It is the amount needed to maintain a standard of living that the person had prior to decedents death. Can you award years support if the estate is insolvent? Yes. Under 53-3-1(b), the claim for years support has priority over creditors of the estate. As the judge, you may be less inclined to be generous to the surviving spouse if the estate is insolvent. 53-3-10. We said that we file a years support in the county that has jurisdiction. Could the ct. award property located in another county as part of years support? YES. 53-3-8. Could the ct. divide the years support award among different people? YES o What might be a reason why the ct. would want to divide the years support award? The children could be from a different person stepmother and stepchildren, etc. 53-3-4. There are also some tax advantages for years support. What are the tax advantages that apply to a petition for years support in GA? For both insolvent and solvent estates, the taxes that are accrued are divested. So, any taxes or liens for past taxes against that real property are set aside. Also, the property taxes from the year of the decedents death or the year the petition was filed are set aside. So, you get exemption from one year of current taxes. o How could you use this provision to a clients advantage? If the decedent has some property with past due taxes on it, you should try to include that property as the property the person wants when asking for years support. Suppose that a petitioners principle asset was their home; and yet the home is subject to a mortgage upon which they are in default. Can you use the years support award to get out of the mortgage? No. o 53-3-1(b). Years support is considered a necessary expense of administration, except as specifically provided otherwise in this chapter. One debt that is not superceded by years support is a mortgage. So years support doesnt help relieve the person of the mortgage. Richards v. Wadsworth H applied for years support. The jury awarded H $40k of years support. However, the judge granted a jnov and said that H is entitled only to $1600. 108

The judge said that years support is a matter of status. You only have to prove that you are a surviving spouse. The ct. of appeals affirms the $1600 award. Why? o Part of the calculation of the years support is awarded based on dependency. H didnt need the money. He had a significant resources social security benefits, live in her home, joint-held properties, a trust, a Merrill Lynch account, etc. In setting an award for years support, the ct. can consider whatever criteria they deemed is impt. What would the H want to be taken into account? The nature of their relationship he said that he kept her happy, went to her church, etc. o The ct. said that those things are not taken into consideration when looking at years support. He is entitled to $1600 b/c that is the minimum. o NOW, there is no longer a statutory minimum for years support. o So, it seems like the years support is based more on dependency.

Driskell v. Crisler W wants years support of $200k. The decedents (Hs) daughter and son-in-law are petitioning the years support petition. The ct. awards her $193k. B/c H was institutionalized in his later years, she had to cut back on her standard of living. She wasnt able to get her dentures, fix her house, get eye surgery, get her medicine, couldnt dress as well, no hairdresser, no dry cleaners, etc. At one point, they had been pretty well off. Why did her standard of living decline so much? They have to pay for his nursing home. They had to sell off property to pay for his treatment. GA requires the ct. to consider what support is available to the surviving spouse. What dont you have to take into consideration when determining support available? You dont have to take into account the fact that her daughter had contributed money to her nor the government support. They got to the $193k by looking back at when they were living like their normal standard of living before his illness. The money went a lot to one-time expenses, getting the house fixed up, etc.

HW for Friday: Speaker for the 1st half of class (pp. 19 20); Read pp. 455 - 466

7 April 2006
Points from Langbeins Speech Theme Number 1 in the paper o Over the last century and half a tremendous change in the nature of wealth o In a commercial age, most wealth takes the form of promises Wealth today is overwhelmingly financial intermediate wealth (stocks, bonds, mutual funds, pension funds, insurance, etc.) That type of wealth displaced an older form of wealth (real estate), which was completely dominant until the 19th century. o What has happened in our time is a 3rd wave in the transformation of wealth. Most wealth takes the form of brain power human capital. B/c the nature of the game in life is advantaging your children w/ the type of wealth that is then going in the wealth is increasing knowledge. o How does this new form of wealth affect the wealth transfer process? Increasingly, wealth transfer is no longer from parents to children; but it is about the transfer of knowledge. It about the funding of education. 109

o The main wealth transfer has been schooling. The result has changed a timing in the transfer. Given the nature of training, it has to happen much earlier. You see that this causes a character of the wealth and the timing of the wealth. So, it becomes inter vivos rather than testamentary. Theme Number 2 in the paper o There is a further burst of saving. There is an intense round of further saving through 401ks, 403(b)s, IRAs, etc. (qualified plans). Define contribution plan is the majority of plans now. o There is a further 2nd round of saving followed by dissaving, which took the form of annuitization. Annuities are not unique to the pension world. An annuity pool is based on the proposition that we cannot predict when an individual will die; however, they can decide w/ great precision when the aggregate will die. So, the pool allows us to do something that we will not be able to do use capital w/o having it running out. o The old notion (WWII and later) of pensions, there was a program in which they save after the kids are out the house and then it will be paid out in an annuitized form. This means that the kids wont get anything. o Everyone but the US has a system of socialized healthcare. We need to get a better system. o A very impt change has occurred since the article was written. The article said that phase two of this process was annuitization w/ nothing being left for the kids. o However, over the last 20 years, we had the 401k revolution. 401k revolution is a movement to another type of pension plan. It is a tax-sheltered savings account. You and your employer puts money inthe contributions are taxdeferred, the accumulation is tax-deferred...once you turn 59.5 you can take the money out if you choose...once you hit in the 70s, you have to take something out, but it is very minimal. Thus, you can leave must of the money in there. Pension is alive in well in the state and local government. There is no competition and the union is going to negotiate. o There are really no more defined contribution plans in the private sector b/c of (1) inflation risk, (2) investment risk, and (3) longevity risks. The employer doesnt want to assume all of those benefits. So, people need to invest in the 401k. o Defined Contribution Plan: You can get at that money early (by paying a penalty), middle (lump sums during retirement), or late (leave most of it in there and transmit it to children, etc.). Unlike an annuity that wealth has a beneficiary. o With an annuity, you have nothing left when you die. It is built for a world w/o children. It has not support for children. So, it is better to have life insurance. All employers who offer defined benefit plans offer life insurance. The reason you can have a defined benefit system that is annuitized is b/c there was life insurance. Insurance is insurance against dying too soon. Annuity is insurance against living too long. There is a brand new world of beneficiary designations in pension wealth. A pension plan is a tax shelter. More and more, defined contribution accounts are tax-favored investment vehicles rather than pension plans. They are going to have beneficiary designations, so we will have beneficiaries in pension accounts. Nonprobate revolution: Most transmissible wealth which passes on death passes outside on probate in the form of beneficiary designations in life insurance policies, pensions (401ks, 403bs), joint accounts (payable-on-death, TO accounts, securities held by Merrill Lynch [they transfer the money when the person diesthis competes w/ the probate system], etc.) So probate is only used for real property; and real property is usually had in joint tenancy. In some of our states, as few as 20% of decedents estates are probated. Most people own a car. Every state has a transfer system in which you can go in and sign an affidavit that Joe died and here is his certificate that he died...the state is helping the person transfer title to the car 110

The process of change in the larger markets is still going on. It will be more evident in my life time. Learn ESTATE TAX Also ELDER LAW is a growing field People no longer die of infection like back in the day; as a result, people die of new things, cancers, strokes, and heart attacks (degenerative things). Cancer is a degeneration of cells. Strokes and heart attacks are degeneration of the circuitry system. So, people are dying more slowly in ways that can render you incapacitated, but alive. So, lawyers will be wrestling w/ capacity problems.

HYPO: Assume you have a couple that lived in OH for 40 years (separate property state). While living in OH, the husband work, but the wife didnt. They saved $500k. If they stay in OH, what is the protection for the wife? Elective share What if they retired to AZ? AZ is a community property state. Is there a risk that she runs as a result that they move to AZ? In terms of choice of law, which states law will look to to determine the character of the assets? OH law (the place they were earned) Which states law will govern the spouses rights upon death? AZ (domicile upon death) Why is that a potential problem for the wife? It is all separate property and there is no community for the spouse, then she could wind up disinherited. There is no elective share in place to protect her against it. Some states have dealt w/ this through a notion of quasi-community property. Quasi-community property is owned by the H or the W acquired while domiciled elsewhere, which would have been characterized as community property if the could had been domiciled in the community property state when the property was acquired. That quasi-property is treated as one-half belonged at to the surviving spouse. o In AZ, quasi-community property only applies for divorce, but not to the point of death. So, if he dies, the quasi-community property doesnt apply. Is there anything W could do to protect herself in the course of the move to AZ? o Widows election is something used in a community property jurisdiction, but it will work only if most of the property is community property. A widows election is on p. 457. It only works if there is a lot of community property. I will give you a life interest in my half if you give up the interest in your half. All property will be put in trust and the surviving spouse will get income for life. o Could they in the course of the move make a contract that says that the separate property is now community property? Some will allow that. o They could transfer their savings to a joint community trust. They could have a contract that would give her a claim against the estate. He has to take out a life insurance policy that makes her the beneficiary. HYPO: They acquire the property in a community property state, and then move to a separate one. A move from community to separate doesnt change the community rights. There is a tax advantage to community property. When the person dies, the entire property gets a stepped-up basis b/c it is community property. What is basis? What does it mean to have a stepped up basis? This deals w/ the capital gain in the property. In determining how much of the sale price is going to be taxed, we need to know the basis of the property. Suppose the house was sold for $300k. Not all of that $300k is subject to tax. The idea is that the basis is going to be the acquisition cost plus maybe some adjustments. So, if you bought the house for $200k and made some capital improvements for $25k. The basis is $225k. The capital gains is $75k. 111

What does it mean to say that there is a stepped-up basis? You get the benefit of the appreciation w/o having to pay taxes on it. W/ community property, when one of the community property dies, the community property gets an entirely new basis -- FMV at the time of death. How do you preserve that benefit when you move from a community property state to a separate property one? You can put it in a community property revocable trust. There could be a written agreement the two to keep it community property.

HW for Tuesday: pp. 466 484

11 April 2006
Chapter 8: We will skip pp. 504 508, pp. 511 516, pp. 528 - 533 Estate of Shannon He executed a will in 1974. He married Lila in 1986. He died in 1988. He didnt do anything after marriage to change his will. What is the issue in this case? He intentionally omitted everyone. The question is whether or not Lila is included in that omission. What does Lila want? There is a statute that protects a spouse under a premarital will. She wants to claim under that statute. She would receive of the community property, and share of the testators separate property. Who is opposing Lila? The testators daughter from a previous marriage What is the first argument that his daughter makes to prevent her step mother from claiming? o The failure to provide for Lila was intentional The will says I have intentionally omitted all other persons and relatives. The ct. holds that this isnt enough to prevent her from coming under the statute. Exclusionary clauses in wills which fail to indicate future marriage are insufficient. He would either have to mention her specifically or at least talk about the possibility of marriage for the exclusion to be intentional towards her. o Testator provided for the spouse outside of the will which was intended to be in lieu of a testamentary gift Lila was paid $2k from a widows fund. Lila was not in great need. She was wealthy on her own. This could explain why he didnt provide much for her. Does the ct. find that exception applicable? No. It did not show that he provided the trust fund benefits for Lila in lieu of sharing his estate. o She argued that they agreed for her to waive her rights to the estate. The daughter points to the fact that they kept their property separate. So, this could be seen as a waiver. Does the court find that this is enough? No. UPC 2-301 We looked at this when we were talking about revocation of wills. If there is a spouse and a premarital will, what does the surviving spouse get? An intestate share that is no less than the value of the share of the estate she would have received if the testate had died intestate as to that portion of the estate o It is the portion of the estate that is not left to children or descendents of children from a prior relationship. What are the applicable exceptions that would bar a claim by the post-execution spouse? 112

o If it appears from the will or there evidence that the will was made in contemplation of the marriage o The will expresses the intention that it is to be effective notwithstanding any subsequent marriage o Testator provided for the spouse by transfer outside of the will and the intent that the transfer be in lieu of testamentary provision What would happen if we applied these facts to the Shannon Case? o None of the exceptions apply o What would Lila get? She would be able to claim the portion of the estate not left to Beatrice (b/c she is a child of a previous marriage) Is there anything else that Lila could invoke under the UPC? Family allowance, homestead, personal property exemption, a forced share (UPC 2-202: they had been married for under 2 years, so she gets 3% of the augmented estate) o What about the fact that she is wealthier than he is? How would that affect the augmented share? She wont be able to claim any new assets. You take into account the assets of the surviving spouse when determining the augmented estate and in determining the elective share. So, if she does have more than he does, she wont get anything.

Problem 1 (p. 465) What is the policy underlying the UPCs decision to protect the children from a prior marriage? Those children may not have been taken care of otherwise. Does this work as a presumption of what the person would prefer? Problem 2 (p. 466) Note the differences. Why would the UPC treat those differently? The elective share is really set up under the UPC to prevent people from strategic behavior engaging in non-probate transfers to leave out a surviving spouse. However, when a person gets remarried and forgets to change their will, they probably didnt want to leave the new spouse to be able to take items that they had before marriage, esp. the non-probate ones. Why does the UPC deny the richer spouse an elective share; yet, if the richer spouse was left out in a premarital will, they can get something even though they are richer? We go back to the assumption that most people would want their new spouse provided for where they didnt get around to changing their will, even though the spouse may be richer, as long as the money doesnt go to the children from a previous marriage. RIGHTS OF ISSUE OMITTED FROM The WILL Are descendents of T protected from intentional disinheritance? Just in Louisiana. But authors suggest that it is dangerous invites will contests, and they can argue lack of capacity, undue influence, etc. There are these predomination statues and how are they different from elective share? o Force share statutes protect someone from intentional disinheritance, where as the other protects against unintentional disinheritance Azcunce v. Estate of Azcunce A created a will w/ a trust in May 1983. He filed a codicil in August 1983. Patricia was born in March 1984. If he died right after she was born, would she be able to take? Yes. There is nothing to show that he intended to leave her out. 113

If the father passed away right after her birth and she claimed under the statute, what would she receive? She would receive her intestate share. The ct. held that the statute didnt apply. Effectively, in terms of the language of the statute on p. 475, what would be the technical argument of why she cannot claim under the statute? Since the 2nd codicil republished the will, that made the will effective for 1983, which was before she was born. Do you think that the T intended to cut his 2 year old daughter out of the will? The guardian at litem of the other three children are forcing Patricias claim. o Did he have to do that? What is the argument that it is in the best interest of the other three children for her to have her share? You want them to share equally so that they wont be fighting over the money. The FL S. Ct. said that you dont have to view best interest as the children sharing in equal shares. Do you think the ct. got it right? It is a very strict reading of the statute. She doesnt fall under the will if we dont apply the doctrine of republication. After the case, they talk about a malpractice claim. The lawyers are being sued by Martha on the behalf of the children. They dont believe that the attys did a good job. What mistake did the attorney commit? He made a codicil that prevented his child from inheriting from his estate. Can Patricia bring a malpractice claim? No. There is no privity for him. o Why cant Patricia bring a 3rd party beneficiary suit? FL law doesnt allow it in this instance. o 3rd party beneficiaries can only bring a claim if the intent to include them is shown on the face of the will. So, if you leave something to a person and the gift violates the rule against perpetuities, the person can bring a claim. However, if the person is left out of the will, they cant bring a claim. Is there anyone who can sue for malpractice? The Ts estate o If the estate can bring a claim for malpractice, is it going to have to bring evidence that the T meant to include Patricia? Yes. o The estate malpractices claim is a bit different from Patricia. The estate can sue b/c they can argue that the atty didnt fulfill their wishes. Does the fact that the estate can sue for malpractice help Patricia? NO What damages could the estate get if it succeeded on the malpractice claim? They could get attys fees spend in drafting the will and attys fees spent in defending the litigation

Note 2 (p. 478) Why is the client not the whole family? The lawyer has the persons interest in mind not the whole family. The atty has an atty-client relationship w/ the person, not the entire family. Could Patricia sue the lawyer for tortious interference w/ her expectancy? Yes. Is it significant that tortious interference is an intentional tort? Yes. It would be more difficult for her to prove that it was intentional. What if the mother/executor sued for her share and settled for 75 cents on the dollar? What would that mean for Patricia? The mom as executor can settle the claim; however, the executor may be at risk if she wasnt acting in good faith. Then the other beneficiaries might have a claim against her in her personal capacity. What if she was omitted from her pertermitted share under UPC 2-302? She would get a portion of the trust that her sibilings are entitled to. So, she would get of the trust. 114

Problem 3 (p. 481) Suppose T devised $10k to A $5k to B. Then there is an afterborn child that is taking under UPC 2-302. What would C get and where would the money come from? C is entitled to a 1/3 share of the $15k that they get in total. The shares of the other children would abate ratably. So, A is going to contribute 2/3rds and B will contribute 1/3. So, each is going to lose 1/3 of what is devised to them. What about GA law? Are there any provisions of GA law that relate to provisions of children left out of a will? See 53-4-48(a). If no provision is made in contemplation of that event, there is a revocation of the will to the extent provided in the remainder of the Code section. Under (b), if it is a class gift, the child will become an added member of the class. Under (c), if you have one of these events and didnt contemplate that event, then that person gets and intestate share. What is the general rule about claims that a T made a mistake in executing a will? Do we generally permit people to challenge a will on the grounds of a mistake by a T? NO GA 53-4-58 provides an exception to this. o What sort of mistake can you allege? If the T left a child out of a will b/c they thought the child was dead, but it turned out that that wasnt the case. This is a revision. This section used to cover a mistake of conduct of a heir; however, that no longer applies. Now, it is just limited to children and it is limited to mistakes of believing the child was dead. o If a child mistaken to be dead makes a claim under the will, what will happen? You look to see if the child was alive at the time the will was made. If so, then the child would get an intestate share except for the portion left to the childs mother. If there are other children, the child would be entitled to what he would have received had the T included all omitted children w/ the other children. In re Estate of Laura ISSUE: Whether the Ts great-grandchildren were considered Are the omitted grandchildren entitled to take? No. When a testator names an heir that they want to disinherit, any issue of that heir are disinherited as well. UPC 2-302: Can a grandchild claim that he was left out under 2-302? No. UPC 2-302 only talks about omitted children. GA 53-4-58: Grandchildren cannot claim omission under this statute.

NO Class on THURSDAY HW for Friday: pp. 485 504, 508 511

14 April 2006
Trusts are a useful way of separating the benefits of property ownership from the burdens. Who are the people who expect to see involved in a trust arrangement? Settlor: the person who creates the trust. Why do they call them a settlor? They are they person who makes a settlement in the trust. Trustee: who manages the property Beneficiary: the person who benefits from the trust. Is it possible for one person to be in more than one role? Yes. What else do you need to have to have a trust to exist? An intentional act to create the trust, property (res), fiduciary relationship b/w two people. What about fiduciary duties? Can you have a trust without fiduciary duties? No. 115

Usually there will be a trust instrument involved, although it is not an absolute requirement in every case. Can you have a trust without a settlor? They dont spring into existence spontaneously if we are talking about an express trust. How do they create a testamentary trust? In your will. Inter vivos trust? Declaration trustsettlor declares his holds certain property in trust. Does a declaration of trust have to be in writing? No it can be oral, unless it is funded with real property. Why would a trust of real property have to be in writing? Statute of Frauds. You are transferring title to the property which has to be in writing. Deed of trusttransfers property to someone else. What about if someone other than the settlor is going to be the trustee, do you need to have a writing or could you have an oral trustee? Someone other than the settlor is going to perform the duties of the trustee. It is possible to have a trust created without a written document w/ someone else as trustee. There does have to be a delivery of the property. Unless the Statute of Frauds applies, then you dont have to have a written document. Can you have multiple trustees? Could you name three individuals? Yes. Can you refuse to be a trustee? Yes. Why? It is a legal burden. It subjects you to potential liability and responsibilities. Suppose you name someone as trustee and they say I dont want to do it. A court may appoint someone. Is there a time when the court wont appoint someone? Yes. If the trust powers are personal to the trustee. Do you suppose there are people that want a trust to come into existence only if a particular person served as trustee? Yes. The court would normally presume the settlor wants someone else appointed and the trust to continue. Active trust versus passive trust Active: the trustee has duties to perform Passive: the trustee doesnt have any duties to perform IF the trustee does not have any duties, the trust fails. Problem 1 page 491 Has a trust been established? Yes. Here where there was a delivery of the property and an intention to create the trust that was sufficient to bring the trust into existence. Is X liable for $100,000? Is it possible the trust come into existence and X not be the trustee? Yes. X could disclaim acting as a trustee, so the settlor would then be treated as holding the property in trust. Xs liability turns on whether or not he is the trustee. We said that you can decline the position of trustee. X says I turned it down. I didnt take the job. But he took the money. Taking possession of the money was enough of an affirmative act to indicate he was accepting the role of trustee. What if someone says nothing? You have mailed the property to someone and they dont say anything? Are they a trustee? The hornbook rule is that silence is not enough to make you a trustee. It requires some affirmative act on your part. Just doing nothing is not enough. Can A and B recover the $100,000 from D and E? Yes, if it was improperly distributed to them. In a trust relationship who owns the trust property? Trustee has legal title. Beneficiary has equitable title. Why do we distinguish b/w the two? In a trust relationshop the courts of law would recognize the trustee as the legal title holder, but in the courts of equity the beneficiaries were seen as the title holders.


Can the trustee and the beneficiary both be the same person? No, the legal and equitable titles would merge and there would not be a trust. Why? You cannot owe fiduciary duties to yourself. How would you sue yourself over the duties. Unless there is one person who owes legal duties to another person, the courts will not recognize the trust. Could you have the situation where A is the trustee and A and B are the beneficiaries? Yes. A owes fiduciary duties to B. Could you have a situation where you had two trustees A and B and only one beneficiary A? Yes. B would owe fiduciary duties to A. Could you have A and B as both trustees and beneficiaries? Yes. What if the trustee transfers the property to someone other than the beneficiary? What are the legal remedies? The beneficiary has a claim against the trustee. He can recover the trust property unless it has been sold to someone as bona fide purchasers. Suppose the trustee sells the trust property and acquires some other property with the proceeds. The beneficiary can reach the replacement property. Suppose the settlor finds out about a breach of trust by the trustee. A is the settlor, he creates a trust for the benefit of B, he names C as the trustee. B is out of the country. A finds out that C has misappropriated the trust property. Could A bring a claim against C for a breach of fiduciary duties? No. Why not? A has to relinquish the property control once he creates a trust. He does not have any ownership rights in the property. There are no duties owed to him. Could you set up a trust where settlor can enforce the rights? Yes, if he reserved some interest, where he is also a beneficiary. Why is an equitable life estate generally better than a legal life estate? The authors talk about why they believe this to be true. Why is a legal life estate not converted into a trust by statute? In England, they have gotten rid of legal life estate. In America, maybe someone didnt want to create a trust, they may not have wanted the flexibility of an equitable life estate by a trust. Why is the word trust in Antitrust? The trust is something that is not only used for estate planning it is also used for business purposes. Some of the monopolies and cartels were in trust form. Do you have to use the term trust to create a trust? No, you just have to manifest the intention. Jimenez v. Lee p is the daughter. She wants to compel her father to account for assets which she alleges were held by as trustee for her. There was a $500 gift and $1000 in US Savings Bonds. They named the judge as the one who controlled the property. The judge cashed them and purchased common stock. What was his explanation of where the other $500 went? It was used for the unusual needs of his children: vacation and expensive taste in clothing. Does Lee think he is a trustee? Lee would rather be a custodian and not a trustee. What would be the legal authority he would look to if he were a custodian? (footnote 10) He would have the power under the Uniform Gift to Minors Act to use the property as he sees fit for the children. Why would he like to be a custodian? It gives him more flexibility. It gives him more protection than he would have as a trustee. 117

What about what uses he can put the property to as a custodian? Support, maintenance, education, etc. The statute of limitations is no later than 2 years from the time the beneficiary reached 18. If it is a trustee arrangement, it remains a trust until he does something to repudiate the trust, so the statute of limitations would not start running until he repudiated the trust. The court decided: He was a trustee. What really got him in trouble is that he did not keep good records to demonstrate what the money was used for. Why do you think he wasnt more careful? He didnt expect his kids to question it. Note 1 page 501 They talk about precatory language. What is the issue they are dealing with? Precatory language: wish, hope or recommendation Sometimes people express a desire in their will, but it is not clear if they are simply asking their executor to comply with their wishes or if they are trying to create a legal obligation. The Hebrew Universities cases concern the differences b/w a gift and a trust. The first case concerned whether the promise to donate a personal library to the University could be a trust. The court said no. Was there some alternative ground they could get an enforceable claim on the library? The court found there was an inter vivos gift, so they could get a claim to the library. When should a failed gift be treated as a trust enforceable under trust principles? Suppose Beck writes a trust document and he appoints a trustee. He designates beneficiaries and he purports to transfer to the trustee whatever he will get under the will of his great Aunt. Has he created a trust? No. The expectancy is not a property interest, so it is insufficient to support the creation of a trust. Could he transfer a copyright into a trust as res? Yes, even though it is something intangible. What about a debt as trust res?Yes. The right to receive payments is a property interest. Is it possible to have a property interest and not be able to use it as a res for a trust? Yes. Are there ever property interests you cannot transfer? Yes. Pension benefits. K with someone and the K gave you certain benefits, but it was not assignable. Unthank v. Rippstein He will pay her $200 a month for 5 years, did he make good on it? NO. Did he intend for the payments to keep going after his death? No. Provided I live that longAfter writing this initially he changes it. He binds his estate to make the monthly payments, so he has expressed in writing that he wants his estate to continue making the payments. Rippstein is trying to see if she can enforce the promise. 1) She tries to probate it as a holographic codicil of the will. The court rejects this. 2) The promise created a trust for her benefit. Does the court accept this theory? No. What is the defect in the argument? There was not sufficient certainty in the language. They conclude he was just making a promise to make a gift. This is not enforceable at law without consideration. Trust res: how does this play into their analysis? The promise of a payment did not place any property in the trust. What does she think is the res of the trust? Everything he owned at that date. The court thinks this would be a problematic conclusion. First, there was no declaration of intent. He would be obligated to hold all the property subject to fiduciary duty, he couldnt use the property for his own benefit w/o breaching fiduciary duty.

HW for Tuesday: pp. 516 - 527, 533 543


18 April 2006
Note 2 (p. 511) Here they are talking about the distinction b/t a trust arrangement and a debt. o W/ a debt, there is an obligation to pay a sum of money. o W/ a trust, it involves a duty to deal w/ some specific property that has to be kept separate from the trustees own funds. What legal consequences might turn on the characterization? Lets assume that I gave you some money. You took the money and invested it in stock. I claim that it was a trust relationship; you claim that it was a debtor-creditor relationship. Why should it matter? o If it were a trust, I would have a duty of trust to the beneficiary. Assume you purchased stock and it increased in value. o If it is a debt, what are the consequences? I wouldnt owe you that increase, only what you gave to me. o If it is a trust, all of the increase plus principal would belong to the beneficiary. All of it would belong to the beneficiary. What about your creditors? o Your creditors cannot get to the money if it were a trust. o If it were a loan, the creditors could not get to it. Any other impt differences as to the legal consequences if it is a trust rather than a debt? o There is a difference w/ respect to the statute of limitations if I wanted to assert a claim against you. o If it is a debtor-creditor relationship, there is a short SOL, such as 2 or 4 years. o If it is a trust/fiduciary relationship, the fact that I have given you the money doesnt necessarily mean that the SOL is running. The existence of the relationship doesnt start the run of the SOL. Resulting Trusts (p. 511) What is the difference b/t a resulting/constructive trust and an express trust? o An express trust is clear who the settlor, beneficiary, and trustees are. It is a trust that is created by the person. o A resulting trust is an equitable reversionary interest that arises by operation of law. A constructive trust is a remedy in some situations. These trusts are more as remedies or operations of law. What is a purchase money resulting trust? See p. 511, Case 14. o What if I purchase a house in the name of my daughter? Is that a resulting trust? B/c it is your daughter, it might seem like a gift. If it is a natural object of my bounty, the ct. may felt that it is a gift. I would then be able to rebut that. Suppose I create a trust w/ lifetime beneficiaries. It also has a remainder interest. The remainder interest violates the rule against perpetuities. How would a resulting trust fix that? The future interest would fail. After the lifetime beneficiaries pass away, it may come back to me or my estate under a resulting trust and then pass through the estate. Suppose I created a trust and name lifetime beneficiaries, but didnt say what would happen after they die. What would happen? A resulting trust would result in my estate. Suppose that I create a trust. I name A as trustee, and B as beneficiary. When B finds out about the trust, B disclaims it. What happens? There is no trust b/c there is no beneficiary. So, the resulting trust would cause the money to go back in the settlors estate. 119

We will not be tested on the material from pp. 516 518. Can an unborn person be at trust beneficiary? Yes. How would the court go about enforcing the fiduciary obligation? It might be possible to get a guardian ad litem appointed. Clark v. Campbell The trustee is suppose to give the settlors his personal to his friends. Why would he not want to name his friends? He might want flexibility to change around who he wants to get the property. He may not have wanted to offend other people. Is this a valid trust? No. What is the problem w/ the trust? There werent ascertainable beneficiaries. Once we decide we cant identify the beneficiaries, the consequence is that there is no trust; and that property that was supposed to be in trust goes in the residuary of the estate. The case tells us that the requirement of ascertainable trust beneficiaries is not necessarily imposed for a charitable trust. o Suppose there was a trust to provide for research into the causes and cures of cancer. Why would there not be a requirement of an ascertainable beneficiary in that context? For policy reasons, we may want to allow a trust as such. How would the trustees fiduciary duties be enforced? The public officials can typically enforce the fiduciary obligations if it is a public charity. Suppose the trust said that the trustee can distribute the trust among the settlors siblings. Is there a problem? No. There is a more ascertainable class. The ct. talks about prior decisions (Goodale v. Mooney). o The guy set up a trust to go to his relatives. This is different from friends b/c it is easier to ascertain. o How does the ct. know which beneficiaries are able to come in and enforce the obligations? In that case, they looked for reference purposes to the states law of intestate succession. So relatives meant those who could inherit by intestate succession. One argument was that this isnt a trust. The argument was that it was a gift of property to individuals to desire to pass the property to his friends as a gift. o The ct. doesnt buy it. It is clear from the language of the document that he was trying to create fiduciary obligations by calling this a trust. Note 1 (p. 521) What would happen under the RST? They said that you should treat it as a power of appoint rather than a trust. A power of appt is a way to accomplish the same goal. A power of appointment is when you give a person the power to choose who they want the property to go to. There are no fiduciary duties. o SO, they may give the property to a person for life; and then that person can decide where the property is to go after their death. In re Searights Estate What is the bequest at issue in this case? Searight set up a trust for his dog. Can he treat this as a standard trust arrangement? No b/c we are missing a beneficiary. A dog cannot be the beneficiary b/c he has no legal standing to enforce the fiduciary duties. Can this be viewed as a charitable trust? 120

o Suppose that he left a trust for the care of dogs. That would be okay. That could go to the Humane Society or something. o However, that work on these facts b/c he names a specific animal to be cared for. Does the trust fail on the ground that there is no identifiable beneficiary that can enforce the fiduciary duties? No. They said that this was an honorary trust. What are some other circumstances in which there can be an honorary trust? o You could leave an honorary trust for the care of a grave, for maintenance of a building, etc. When you have an honorary trust for the care of a pet, how does the rule against perpetuities play into that? o This is a trust for as long as the dog lives. Why cant the dogs life be the life in being? We know that the remainder interest will vest or fail at the dogs death. But the court is concerned about the animals that live really long, like elephants and turtles. So, you have to use a persons life. o What time period does the rule against perpetuity impose? They go through this analysis. If you invest the money at 6% interest, it will last no longer than 5 years. That is w/in the period of time required by the rule against perpetuities. The ct. knows that the trust will not last 21 years. o Is that how are you are supposed to apply the rule against perpetuities? No. What wrong is it? It might not vest w/in that period of time. W/ the rule against perpetuities, you are looking for logical certainty. You are not looking at the probability that something would happen. There was a case, in which the ct. held that a 70 year old woman may have another child and that it would violate the rule. What about here? Could things turn out differently? Yes. She could get interest for 100 years. But the ct. alters the application of the rule.

Note 3(a) (p. 526) Suppose a honorary trust was funded w/ a lot more money than they needed. Would it be violated? The RST validates the use of an honorary trust. It is not capricious unless the value is unreasonably large. If you put in a lot more money than needed, it may be capricious. However, you have to look at the remedies. What if you set up a trust that instructs the trustee to throw the money in the ocean? What if you set up a trust that consists of land, and then you have to throw salt on the land to ruin it? Can you do that sort of thing? This would be deemed a capricious trust and not be validated. What about a trust for criminal fines? It would be unenforceable b/c it taking away the law is trying to create through its criminal and tort laws. On p. 527, it says that Trixies died before the ct. decision was rendered. So, we know that the trust didnt last 21 years. Under this trust, what happens if Trixie dies, what happens to the $1000. The named people living at time get the money. Footnote 17 (p. 525) It gives the girlfriend $60k as long as the dog lives.

HW for Thursday: pp. 543 569

20 April 2006

Exam Anything that has been assigned is fair game Things that we talk about in class are more likely to make it on the exam Will be multiple choice (bulk from application of the UPC and GA Probate law) o Approximately 60 questions Can bring: Books, notes, personal outline, GA code handout, supplement Bring pencils b/c it is a MC exam 3 hour exam Problem 1 (p. 539) They are focusing on the Wellesley home that belongs to Cappy which was transferred to his stepdaughter and husband. Would this property be included in the augmented estate (under the UPC)? o There are certain transfers during the marriage that get included in the augmented estate. Once is a situation in which you have a property and make an irrevocable transfer of the property, but retains a life estate. That is what happened here. There is another reason why it wouldnt be included as part of the augmented estate. It was not a gratuitous transfer. In return for the transfer, the step-daughter and her husband agreed to take over certain payments. If those payments were adequate consideration, then on that ground they would not be included in the augmented estate. Problem 2 (p. 539) The trustee is usually more favorable to the remaindermen rather than the life tenant. What would make the trustee want to conserve the assets for the remaindermen? o Think of it in terms of a possible lawsuit claiming that the trustee violated his fiduciary duty. o If a life tenant brings a suit saying that you should have paid me more money, and say the trustee loses that suit, what is the remedy going to be? You would have to pay him more from the trust fund. o Suppose that he paid a lot of the life tenant and then the remaindermen files suit and wins. What would happen then? The life tenant wouldnt be able to pay them back. So, the judgment may be against the trustee personally. Note 5 (p. 540) The atty represented all the people at the same time. Does that present a potential ethical problem? Yes b/c they have competing interests. Should we always take the view that there is a potential conflict of interest? No. But under these facts, there is a higher potential for conflict. o When Cappy got married to Margaret. You have a complex situation. At that point, the potential for diverging interests might have required separate representation. EXTENDED DISCRETION (p. 540) Doesnt that suggest that they dont want a court looking over the trustees shoulder? Lets presume that Margaret read the trust document before she signed it. It sounds like she really trusted Farr and doesnt want anyone else controlling the property. Why do you have to have the possibility of overview? Why is that necessary in a trust arrangement? The essence of a trust is a fiduciary relationship. Those fiduciary duties are legal duties, so you need to 122

have some legal mechanism in place to see if those duties are satisfied. If you really give absolute discretion to the trustee, it would be hard to get the ct. involved and say there is a legal duty. So, they permit ct. review even when they wanted to give a lot of discretion to the trustee. If the language is very broad for the trustee, what review would the court conduct? The ct. will require the trustee not to act in bad faith (adopt the mindset that the settlor of the trust wanted him to have), acting for the purposes for which the trust was designed to fulfill.

EXCULPATORY CLAUSES Is it ethical to include an exculpatory clause in a trust instrument that you are drafting knowing that you are going to be the trustee? It may be a problem, but the settlor has to sign off on it. Are there times when exculpatory clauses are deemed unenforceable? Yes b/c of the breadth. What about the Uniform Trust Code? It has to be communicated to the settlor and fair. o What things might a court consider to decide whether this is fair? Effect on the settlor, communication to settlor, o Could the sophistication of the settlor have an impact? Yes Sometimes a bank trust dept. has a standard form that you have to use. If there is an exculpatory clause in a standard document like that, does it change the analysis? Yes, but the answer is still the same. Under the UTC, the requirements for upholding the exculpatory clauses would be possible if the settlor had independent counsel. What cannot use an exculpatory clause to immunize yourself against? Bad faith, immunize the trustee from failure to use reasonable care RIGHTS OF CREDITORS OF A BENEFICIARY Suppose you have a discretionary trust and the creditors would like to get their debt paid out of the trust assets, can they do that? No. The standard take is that the money in the trust doesnt really belong to the beneficiary until the trustee exercises his discretion. Hamilton v. Drogo: There was a remedy for the creditor. The creditor can get an order blocking payments to the beneficiary as long as the creditor hasnt been paid. THe money doesnt get paid to the creditor, but the creditor can block payments. Question 1 (p. 545) This gives the creditor some additional leverage over the beneficiary and maybe help them cut a deal. Question 2 (p. 545) Can you get around that by writing the trust to go to people who are providing services to the beneficiary? o Say the beneficiary is living in an apt. Can you have a provision that says that the trustee can right checks for the rent? No. The general rule is that if you invoke the cutting off income procedure it cuts off all payments to the beneficiary and any payments made on behalf of the beneficiary. Can creditors of a beneficiary get to the assets in a trust for the beneficiarys support? No. People who are supplying something necessary can get paid; but other creditors would not. Problem 1 (p. 547) What about 60 of the RST? That tells us that someone like B should be able to attach distributions the trustee is required to make; but in a situation in which it is normally discretion, the fact that there is a 123

creditor around, the trustee can take it into consideration so if there is a creditor around, the trustee may not have to pay? What about the UTC? Treats discretionary and support trusts the same the creditor cannot compel the trustee to make a distribution w/ an exception for children or spouse of the beneficiary

Note 2 (p. 547) Protective Trust: Can set up a trust that has mandatory payments to beneficiary w/ a trigger feature that when the creditor comes in to seize the asset it becomes discretionary so that the creditor cant get to the assets Spendthrift Trust: Beneficiary cannot alienate her interest, nor can her creditors reach her interest in the trust o What if the creditor produces a doc signed by the beneficiary purporting to give her interest in the trust? That wouldnt work b/c the beneficiary cant alienate her interest. The law prevents a restraint on alienation. o If you were the creditor, what would the remedy be? Once it (the money) is in the hands of the beneficiary, it is no longer protected against creditors. Is that a satisfactory remedy for the creditor? No. How are you going to make sure that the beneficiary pays the money to you if they get the money at a time in place the creditor doesnt know about? It is an iffy remedy, but at least it is one. What if I set up a trust w/ half of a spendthrift provision? Beneficiary can assign her interest in the trust, but creditors cannot reach it o The general rule is that you cant split the baby that way. If the interest in the trust is assignable, it is reachable by creditors. Should spendthrift trusts be permitted? Is it a good idea to let people have sources of income that are going to come to them no matter what decisions they make? Scheffel v. Krueger Here the Ds grandmother created a spendthrift trust. What is supposed to pay out? Trustee pays all of net income; if the trustee decides that it is necessary for maintenance, support, and education the trustee can dip into the principle There was a tort suit brought against Kyle. What does the ct. decide about enforcing the judgment against the spendthrift trust? They cant do that. Is there anything that the mother can do to enforce the decision? She could come in and collect it from the money to be paid to the beneficiary. Shelley v. Shelley Who is the beneficiary of the trust? Grant Under what circumstances are distributions to be made from this spendthrift trust? Income paid to him he can get at the principle after age 30, but the trustee, along w/ family members, had discretion to see if he was capable of investing it - in cases of emergency, he could dip into the principle Issue: Where his children and ex-wife entitled to claim child support from the trust? o Grant was not meeting his child support and alimony obligations. Can the children of Grant reach the trust? Yes. It is good public policy to allow child support to come from the trust; otherwise the state would have to support them. What about alimony? Can that come from the spendthrift trust? No. 124

What about reaching the corpus of the trust? Can the wives get money from the principle? No. The distribution of that part of the trust is under the discretion of the trustee. What about Grants children? Can they make a claim against the corpus of the trust? Yes, but that is b/c they are technically beneficiaries of the trust. There was a clause in the trust that allows his children to take from the trust as well.

Note 1 (p. 553-554) What about the voluntary creditor? What is the rationale for saying they dont have a claim to the spendthrift trust? They were in the position to protect themselves when they extended the money to the beneficiary. That argument isnt available if you are a tort creditor. Is there a rationale for saying that child support claims and alimony can be enforced, but not tort claims? Note 3 (p. 554) England doesnt permit spendthrift trusts, but allow protective trusts. If you were a creditor, which would you prefer? It would work out about the same. If you are a creditor, once you make a claim on a protective trust, it functions the same as a spendthrift trust. o But w/ a protective trust, you could do the cutting off the income procedure. pp. 555 557 ** Notice these materials might be tested on the exam ** See p. 555: In GA, tort victims are able to assert against a spendthrift trust Self-Settled Asset Protection Trust In general, you cannot set up a spendthrift trust for yourself. Where can you set up a spendthrift trust for yourself? Caribbean, Alaska, DE Why would jurisdictions allow you to set up a spendthrift trust w/ yourself as a beneficiary? It is an example of race to the bottom. One potential problem is that sometimes the governance get into competition to see who can be the least stringent to entice people to come to their state Can a doctor use such as trust in lieu of malpractice coverage? Public policy you dont want it

HW for Friday: pp. pp. 569 588

21 April 2006
Federal Trade Commission v. Affordable Media LLC They were commercials for insomniacs. If you want to get lots of money, why would you pay it out to the investors? So that they can invest more. They will send a bigger check the next time. The FTC catches up w/ the Andersons. What happened to the money that they got at that point? They set up an offshore trust. The trustees were the Andersons and the AsiaCiti. AsiaCiti didnt have any presence in the US. How did the trust become important in this proceeding? o The Andersons did make an effort. However, there was a duress clause. o What was the duress that caused them to be removed as trustees? When they cant fulfill it, the ct. held them in contempt. They went to jail.


The Andersons said that they were not in contempt b/c they couldnt do what the ct. asked. However, the ct. didnt buy it. There was a high burden on the Andersons b/c they alleged impossibility. Plus, the Andersons were not acting in good faith. What powers did the trust protector had here that they could have invoked? As a trust protector, they could have replaced AsiaCiti as trustees. Also, they could have made changes in the trust. They also could have overruled AsiaCitis determination of duress. Since there was duress, they were dismissed as trustees. But, the ct. said that it was a self-imposed possibility. What if they really drafted the trust in a way that they really couldnt do anything about it? The 9th Circuit raises that possibility and says that it wouldnt make a difference. They would still be in jail.

Note 4 (p. 568) Can you help someone create a protective asset trust knowing that someone else is out there and wants to claim that money? No. That would fraud under a fraud-conveyance law. Does that mean that it is unethical for you to help as their atty? Rule 1.2(d) says that a lawyer shall not assist a client in conduct that the lawyer knows it is criminal or fraudulent. So, it is unethical. TRUSTS FOR The STATE-SUPPORTED This is like the stuff on taxation. We need to be exposed to it, but we are not going to be tested on pp. 569 572. In re Trust of Stuchell The trust remainder was going to go to the children. One of the children was handicapped; and they wanted to keep his funds in the trust. Suppose the settlor was alive, could it be changed? The settlor and the beneficiaries together can consent to change terms of the trust. Does the ct. allow modification of the trust? No. The settlor had in mind what he wanted to happen to it; and they only allow modification under certain circumstances. o Modification Allowance: Something unforeseen that might change the trust There is no change in the trust just b/c it may be adverse to certain beneficiaries Claflin Rule Operates when the settlor isnt around or hasnt been given consent cant do a modification or termination that would defeat the material purpose of the trust In Re Estate of Brown The income goes to the children. Could the trustee invade the principle for their benefit? Yes b/c it was to maintain their lifestyle. When Wilson and Rosemary pass away, the trust is to be distributed to their children. What is the ct. being asked to do in this case? They would like to have the trust be distributed among the children. All the beneficiaries are on board of terminating the trust at this point. Who is objecting? The trustee. The trustee makes an argument about how to characterize the trust. The trustee says that it a support trust. He also says that it is a spendthrift trust. o In that case, the trust cant be terminated b/c a material purpose of the settlor would remain unsatisfied.


Lets assume that it was a support trust. What material purpose of the settlor would be hindered by terminating the trust? If the trust is terminated, the money may not be around for the beneficiaries when they need it. o What if it were a spendthrift trust? You are trying to protect the beneficiary from creditors and their own providence. This could happen if the money was in the hands of the beneficiary. What if this were a discretionary trust? What purpose does a person have in setting up a discretionary trust that may be defeated if you terminate it? W/ a discretionary trust, you are placing confidence in the trustee evaluating whether there is a good purpose to give money to the trust. What kind of trust is this? o The ct. said that it wasnt a support trust b/c of the provisions telling the trustee what to do with the income of the trust. What was supposed to happen to the income? It could be used to support them. What would happen to the income if they didnt need the support? If the educational purposes have been satisfied, then you will pay the income to them whether or not they need the support. So, the payments were mandatory no regard to whether they needed it or not. o The ct. said that it wasnt a spendthrift trust b/c there was no clause in the trust that said that it couldnt be alienated or that creditors could get it. The ct. said that there was a material purpose of the trust, which had not been accomplished. So, the trust could not be terminated. The material purpose was that they would have income for life. Suppose the settlor and all beneficiaries were alive and they agreed to terminate. Would that work? Yes. o What if the trustee objects? It doesnt matter. The trustee doesnt have any standing to object. What if the beneficiaries and the trustee agree among themselves to terminate the trust? You have to look at the settlors intent. o But if the trustee and beneficiaries terminated the trust, could the settlor file an action against the trustee? No. Unless the settlor has retained some interest in the trust, the trustee doesnt owe any duties to the settlor, but to the beneficiaries. Thus, the settlor cant bring a suit against the trustee for breach of fiduciary duties only the beneficiaries can do that. RST 342: If the trustee transfers property to a beneficiary or to several beneficiaries, then the trust terminates even though the purposes of the trust havent been fulfilled. In the comments it deals w/ whether there is a liability on the part of the trustee No b/c the beneficiary consented to the termination of the trust. The same would apply if the trustee transferred the property to a 3rd party if the beneficiary consented. If you are advising a trustee and the beneficiaries come to him and say they want the money. What do you think? Is that an advisable course for the trustee to take? No. o What risk would the trustee be running? Not much the settlor cant sue him o Is there a risk of a suit by a beneficiary? If there were beneficiaries who werent adults yet, that could be a problem. The RST says that if the beneficiary asked for or consent for the termination there is no claim against the trustee. How reliable do you think that rule is? There are probably jurisdictions that wouldnt follow that. o Any other concerns that a trustee should have about going along w/ the idea to terminate the trust? If you are an institutional trustee and you want a reputation for integrity, you wouldnt want to terminate it.



Can the beneficiary of the trust change the trustee? No. But there are circumstances in which the ct. may remove the trustee. What if it is just that the beneficiaries dont like the trustee? Could they get the ct. to replace the trustee on those grounds? No. What if the argument is that you want the trustee replaced b/c they are bad financial managers? Would that be a ground on which the ct. would be willing to replace the trustee? The UTC says that that is a ground on which the ct. should be willing to replace the trustee.