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Wills & Trusts

Professor Tate
Exam will have choice of law issues on essay part.
***Choice of law rule for wills: if you execute a will and you own personal property, the law of the state of where
you are domiciled governs the validity and interpretation of the will with regards to the personal property.
If you own land in another jurisdiction, the law of the state of the jurisdiction of where the law is located
governs the validity and interpretation of the will.

I. Introductory Matters
 Emphasis on policy: Why the rules are the way they are.
 Look at Uniform codes so wills are applicable/enforceable in other states.
Intestacy: No will or will is ineffective.
Non-Probate Transfers: E.g., life insurance, joint-tenancy property, pension plans (stuff that doesn’t go
through the probate process). Most common type is property passing through a trust. Very important.
Tax policy: Estate tax is important for those with a lot of money.
Trust: Texas has not abolished the RAP. Saving clause to get around. Some states have abolished.

A. Policy Bases for Inheritance & Testamentary Freedom Casebook: 1-3, 10-38
Will-by testament, that is, by written or oral instructions properly witnessed and authenticated, according to
the pleasure of the deceased.
Hodel v. Irving, Supreme Court held that 5th Amendment curtailed the power of the government to limit the
right to convey property at death.
Shaw Family Archives v. CMG Worldwide—issue is that at time of death of Marilyn Monroe, law was not
yet enacted with respect to right of publicity and that right being transferable. B/c only property actually
owned by a testator at the time of her death can be devised by will, MMLLC and CMG cannot
demonstrate that they owned any such right. Postmortem publicity rights were not recognized (today
they are, especially in CA where Gov. Arnold passed special law).
Sample problem: T devises to A’s estate—A then devises all to X—A dies, A’s heir=Y; then T dies. Under
the residuary clause, A’s property would pass to Y as the heir and not to X, but Policy argument is that it is
not what either T nor A intended.
Why do we focus on what T and A want? B/c the goal is to give effect to the intent of the testator.
The reason for the rule is the idea that there is more of an incentive to work harder if you know that your
property and wealth will go to someone you choose at your death.
Why
1. Why inheritance? Why can some keep property after a person dies? Property that they did not earn with
their own labor.
a. Jefferson & Blackstone say that this right is not intrinsic. The right to pass property at death
was neither a natural right nor was it constitutionally protected. Imposed by humans. (“Civil Right”
View. Have to decide why this is a good thing.) Dead have no rights, rights belong to living, right to
inherit is not a natural right – only granted by positive law.
b. Locke says that it’s a natural right. Because children are taking over for their parents, that
children should have a natural right to inherit the property that belongs to their parents. If choose not to
inherit, then that goes against the law of nature. (“Natural Right” View)
c. Halbach says that kids are nicer to their parents if they know that they’ll get an inheritance.
Freedom of testation will encourage creativity, hard work, savings, initiative, and other things that
benefit others. (Incentive View)
d. Professor Langbein said that most of the wealth in the U.S. is not monetary, but educational and
cultural.

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e. Ascher inverts the traditional way of doing things. He says the default should be that everything
goes to the government with exceptions—dependents, e.g. The goal is equality of opportunity (level
playing field) and reducing the deficit. Difficult to enforce a death-tax return. People would spend
money on things that bring immediate pleasure rather than saving it for future generations; more inter
vivos gifts. (“Confiscatory” scheme—Tate says “horse hockey.”)

Freedom of Testation
 Promotes productive behavior; people work harder, save more
 Focus on will of the testator.

2. Dead Hand Problem

 The Decedent is trying to control the situation from the grave
 Restatement of Property §10.1: Look to the donor’s intent governs testator documents. If it was to
attach a condition, then give effect to that condition. PP exception: If it violates pub policy, then
court will not enforce it.
Shapira v. Union National Bank
Common Pleas Court of Mahoning County
315 N.E.2d 825 (1974)
Facts: Jewish father attempted to solve a problem in death that he could not while on earth. Tried to get his
sons to marry Jewish women. They didn’t, so the doctor’s money went to the State of Israel. Is it
appropriate for someone to use money to encourage people to do certain things. Tate says we need
to have clear rules about what violates PP; one thing to say that these are allowed and another to say
that they’re a good idea. Book makes clear that the father’s memory is not enhanced by this
experience.
Rule: A testator may validly impose a restraint on the religion of the spouse of a beneficiary as a condition
precedent to inheriting under the will.
Held: A partial restraint of marriage which imposes only reasonable restrictions is not void as violative of
public policy.
Is the Jewish father allowed to control his son from the grave?
If that was the issue that the court really focused upon, then it would not matter whether how many Jewish
women were available; it would only matter whether the father is allowed.
What about the many circumstances after the Jewish Father’s death?
What is Jewish? What if the bride is a Jew for Jesus? Court would have to make a religious decision.
What if the son had a sham Jewish marriage?
What about if the son cannot find a Jewish woman that will marry him?
What about the circumstances while the Jewish Father is alive?
The son brings home a fiancée that is changing to Judaism. Would the Jewish father allow this marriage?
We don’t know now, because he is dead, but maybe he would have allowed for this wedding and inheritance.

Real Life—What Do You Tell the Jewish Father?:

— Point out the Issue—May give clients examples of how their wishes may have dire consequences.
— Maybe a trust would be the best means—Not a will—Be an advisor and counselor (see the
consequences)
— Don’t make it sound in the will like trying to discourage or encourage something (remarriage or divorce),
but make it sound like you are concerned for their wellbeing.
— Conditions telling people that they get money if they get a divorce, or don’t remarry, court will not
enforce b/c don’t look favorably on things that disrupt family life. Better to say not discouraging
divorce, just want to have that person provided for in the event of divorce.
— Clients don’t always think through possible negative consequences after they die. May affect how
decedent is thought of after death.

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Incentive Trusts: the Beneficiary gets a certain amount of $ or property if they perform a certain condition
(go to college, have children, etc.). Tate wrote an article about incentive trusts.

Cognitive dissonance. Two groups of kids—one got reward for drawing. Others did not get the reward and
they continued to draw after they were rewarded because their joy came from drawing, not from a reward.

Racially restrictive covenants—Shelley v. Kramer did not apply because this was not prohibiting son from
marrying and was not applying to many in the population. Just saying that he was not going to get money.

Public Policy Rules and Constitutional Issues

 There are no constitutional problems with placing conditions on gifts since there is no state action or
legal effect until probated in court and the court is just giving effect to a T’s intentions. Probating a
will does not rise to the level of state action for violations of the 14th amendment, however, some
clauses may be void for public policy.
 Divorce: If a will promotes or encourages divorce – usually void since it’s against public policy.
Gifts conditioned on divorce are valid if the condition is to provide for the beneficiary in the event of
separation or divorce – but not if to incite divorce.
 Race: If will says you cannot marry someone of a certain race (esp. victims of discrimination) – may
be void as against public policy or unreasonable.
 Religion:
o If a will says you must or must not marry someone of a certain religion = enforceable (unless
there are very few members of that religion).
o If will says “must remain in good standing in the church of Disciples of Christ,” = almost
always upheld, unless it’s divisive of families – such as raising children in a faith different
than your own.
 Change of name: If a will requires a daughter-in-law not to use a hyphenated name = enforceable.
 Charitable restraints: upheld universally
 Personal habits restraint: normally upheld unless too vague
 Marriage: Total restrictions on marriage are prohibited as against public policy, but some partial
restraints are ok. May be able to restrict a second marriage because the motivation might be support.
Also may partially restrain marriage by conditioning gifts on the beneficiary marrying within a
particular class or faith. Gifts conditioned on a widow remaining single are valid if purpose is to
provide her in the event she remains single.

B. Ethical Considerations/Issues
Ethical considerations rules
 The Privity Rule: There is a duty of reasonable care between an attorney and an intended beneficiary
because there is foreseeable harm and because of the third party beneficiary doctrine. Simpson
o Claims can be brought in tort or k
o Attorney has continuing duty to correct errors made during drafting of the will (duty not
applicable to change of circumstance change/errors)
o Texas does not follow this rule
 Rule of law: Must disclose relevant information about beneficiaries/heirs to the parties involved,
need a waiver if there is a conflict of interest. A v. B
 Statute of Limitations: Statute of Limitations for will-drafting errors does not begin to run until
death of T – tolled until death

Common Law Texas

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 Attorney has a duty of reasonable care to  No privity b/w attorney and beneficiaries
the beneficiaries b/c foreseeable harm,  Attorney has no duty of reasonable care to the
despite no privity (this is an exception to beneficiaries
the privity rule)  Follows traditional rule of contract privity
 Contract Theory: 3rd party beneficiary
doctrine
 Tort Theory: foreseeable injured party

Texas Law on Ethical Considerations and the Privity Rule

 Texas follows the traditional rule of privity. (NO Duty of Reasonable Care to Beneficiary!)
 A lack of privity of contract b/w attorney and beneficiary prevents a malpractice claim by the
beneficiaries against the attorney.
 Attorney does NOT owe a duty of reasonable care to the beneficiaries.

Simpson v. Calivas
Supreme Court of New Hampshire
650 A.2d 318 (1994)
Facts: The attorney in the will stated that the father was leaving a life estate to the wife for the homestead.
But it is unsure what “homestead” meant, because there are multiple properties (patent ambiguity).
The son argues that the wife was only due the life estate on the home. The court ruled for the wife.
The son bought out the wife. The son brings malpractice suit against attorney. The attorney kept a
record of what the will should have stated. Court grants summary judgment on ground of collateral
estoppel, then dismissed lawsuit on the ground that the attorney did not owe a duty to the intended
beneficiaries.
Issue: Was there a duty to the intended beneficiaries? (Held against lower court; said that there was a duty
via a 3rd party beneficiary rule.) Then, whether doctrine of privity of K prevents collateral estoppel.
Held: Attorneys drafting wills owe a duty of reasonable care to the intended beneficiaries.
How should it have been done?- maybe a legal description of the land? Just the house and no property

Probate court’s determination is limited to expressed (not actual) intent. Looking at construed intent
as reflected in the will. Any finding that the probate court made as to the actual intent was irrelevant,
because this court is looking to the construed intent.

Exception to the privity requirement extends to beneficiaries: majority rule

Exception not extended to beneficiaries (includes Texas): minority rule (but see below)
Atty can be sued only if malpractice evident from the face of the document: Florida-Iowa rule
BUT IN TEXAS: Strict privity of K between attorney and testator. Limits who the attorney has to
deal with after D’s death. Executor can bring a suit. Even if it settled a cause of action.
RECENT TX SC CASE—Estate can sue on behalf of the decedent for malpractice.
Barcelo Case- held an atty who drafts a will/trust owes no professional duty to devisees or
beneficiaries
Policy: don’t want planner to focus on beneficiary liability over client wishes
Belt v. Oppenheimer Harrison and Tate Case- executor tried to sue atty for malpractice, said
estate planning mistake created huge tax bill, holding: executor can sue on behalf of the
deceased testator,
Smith v. O’Donnell- executor suing lawyer, malpractice advised funding trust with
community or separate property, damage is 12.9m settlement to children (kids sued executor
who passed the buck to the drafting atty’s), holding: this is like Belt, dissent- this is basically a
suit by the kids, not the executor

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Estate planning tips: father disinherited them, put a no contest clause, leave them something
to lose if they sue
UPC §2-806- can modify a will to achieve transferor’s tax objectives if not contrary to intention
Arguments for this Rule: Reduces burden on attorney; Reduces litigation. Tate doesn’t like TX rule.
A v. B (N.J. 1999)
 Conflict of interest: Husband and wife made will at same time, naming each other as beneficiaries. Hill
Wallack Law Firm is representing both husband and wife. Husband had bastard child that wife didn’t
know about.
 If wife dies, husband might leave the property (that once belonged to wife) to the son. Firm took on
another case that husband was involved in regarding a paternity suit. When firm realized its conflict, it
dropped the paternity suit and ordered husband to tell wife. Potential ways this could affect her estate.
 Uses the term “issue” which means non-marital children in New Jersey
 Court ruled that the firm could tell the wife about the bastard child. Do not want firm to be a party to
deception.
 LESSON: Firm should have told clients to disclose this information. ADTEC confidentiality waiver.
C. The Probate Process
Purpose of Probate
 Allows state to protect the rights and intention of decedent where he is “disabled” by death to enforce
his own rights
 Supports state goal of clearing any clouds on title
 Protects creditors in an impartial forum

Jurisdiction of Probate Courts

 Domiciliary: Jurisdiction of Probate Court in which decedent died
 Ancillary: Jurisdiction of Probate Court in which decedent owns real property

Role of probate court

 Subordinate to other courts
 Not a traditional court under Art. III of the Const. (judicial branch)
 Limited scope – cannot review evidence of “T’s true intention” – there is no collateral estoppel from a
decision by a PC b/c a District Court can admit more evidence (such as was the side issue decided in Simpson v.
Caliveras above)

Persons with right of possession to property

 Persons with letters testamentary

Probate Matters
 Die with will—Testate
 Die without a Will—Intestate
 Court proceeding required

Non-probate Matters
 Terms of Contract (“Payable upon death”)
 Trust
 Deed
 No court proceeding required

Probate vocabulary
Wills are revocable and ambulatory (see below)

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 Revocable: will can be revoked. No will is binding until death b/c T can always change or make
another one.
 Ambulatory: b/c of absolute revocability, the inclusion of someone in a will creates NO legally
vested interest until the death of T
 Devise: real prop is devised by T to devisee
 Bequeath: personal prop (i.e. “personalty”) is bequeathed by the T to the legatee
 Descend: In intestacy, prop passes from the decedent by descent to the descendants

There are only two types of personal representatives: both have fiduciary duties to the devisees/legatees
 Administrator/Administratrix: person appointed by court as a personal representative (see below for
order of eligibility)
 Executor/Executrix: person named in will as a personal representative—normally executor must post
bond, it’s a good idea to waive bond if you trust the person since it’s such a hassle
 Order of persons eligible to become a personal representative
 Person named will comes first, then surviving spouse, then devisees and legatees, the next of kin,
then creditors, then persons of good character in community.
 If beneficiaries think personal rep is doing a poor job, any interested person can demand an
“accounting.” Also can seek to have executor or administrator removed.
Different kinds of administration
 Must apply for letters of testamentary or letters of administration if you don’t have a will within 4
years.
 UPC: Formal v. informal probate
 Texas § 145 PC Independent v. court administered administration. (see below)
 Muniment of Title 89c
 Small Estate Affidavit 137
Independent Administration—Non-Supervised Administration
Texas law on probate procedure (Independent and Small Estate Procedure)
 In Texas, can have independent administration or court administered administration.
 Independent: (§ 145)
Texas Probate Code § 145. Independent Administration
(a) Independent administration of an estate may be created as provided in Subsections (b) through (e) of this
section.
(b) Any person capable of making a will may provide in his will that no other action shall be had in the
county court in relation to the settlement of his estate than the probating and recording of his will, and the
return of an inventory, appraisement, and list of claims of his estate.
(h) When an independent administration has been created, and the order appointing an independent executor
has been entered by the county court, and the inventory, appraisement, and list aforesaid has been filed
by the executor and approved by the county court, as long as the estate is represented by an independent
executor, further action of any nature shall not be had in the county court except where this Code
specifically and explicitly provides for some action in the county court.
o Only thing that court does is the probating of the will and the return of the inventory
appraisement and list of claims. IE will show up, give will, will is probated, get letters
testamentary, then will give list of the estate and claims, and says he’ll take care of it. That’s
it. Don’t have to report to court on a regular basis unless something’s going wrong.
o Beneficial – people do not try so hard to avoid probate—Not expensive
o Whoever writes a will may choose the independent administration option in Texas. Or, if the
will does not specify, all beneficiaries can apply for independent administration.
o Take advantage of Texas probate without court supervision
o If intestate, the heirs can agree that they want Independent Administration. Or, if not
mentioned in will, heirs can agree. Only can’t do this if will forbids it.

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o § 149a: If IE not doing a good job, any interested person can ask for an accounting. If IE
engaging in inappropriate behavior, then beneficiaries can have IE removed.
o Can make an affidavit in lieu of inventory §250
 But there must be no unpaid debts, and you have to send inventory to beneficiaries
 Protect family privacy
Texas Probate Code § 149A. Accounting
(a) Interested Person May Demand Accounting. At any time after the expiration of fifteen months from
the date that an independent administration was created and the order appointing an independent executor
was entered by the county court, any person interested in the estate MAY demand an accounting from the
independent executor. The independent executor shall thereupon furnish to the person or persons making
the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in
detail:
1. The property belonging to the estate which has come into his hands as executor.
2. The disposition that has been made of such property.
3. The debts that have been paid.
4. The debts and expenses, if any, still owing by the estate.
5. The property of the estate, if any, still remaining in his hands.
6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the
estate.
7. Such facts, if any, that show why the administration should not be closed and the estate distributed.
Any other interested person shall, upon demand, be entitled to a copy of any exhibit or accounting that has
been made by an independent executor in compliance with this section.

Texas Probate Code § 149C. Removal of Independent Executor

(a) The county court, as that term is defined by Section 3 of this code, on its own motion or on motion of any
interested person, after the independent executor has been cited by personal service to answer at a time
and place fixed in the notice, MAY remove an independent executor when:
(1)
extended by order of the court, an inventory of the property of the estate and list of claims that have
come to the independent executor’s knowledge;
(2)
embezzled, or that the independent executor is about to misapply or embezzle, all or any part of the
property committed to the independent executor’s care;
(3) the independent executor fails to make an accounting which is required by law to be made;
(4) the independent executor fails to timely file the affidavit or certificate required by Section 128A of
this code;
(5)
mismanagement in the performance of the independent executor’s duties; or
(6)
from any other cause becomes legally incapacitated from properly performing the independent
executor’s fiduciary duties.
(b) The order of removal shall state the cause of removal and shall direct by order the disposition of the assets
remaining in the name or under the control of the removed executor. The order of removal shall require that
letters issued to the removed executor shall be surrendered and that all letters shall be canceled of record. If
an independent executor is removed by the court under this section, the court may, on application, appoint a
successor independent executor as provided by § 154A of this code.
(c) An independent executor who defends an action for his removal in good faith, whether successful or not,
SHALL be allowed out of the estate his necessary expenses and disbursements, including reasonable
attorney’s fees, in the removal proceedings.
(d) Costs and expenses incurred by the party seeking removal incident to removal of an independent

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executor appointed without bond, including reasonable attorney’s fees and expenses, may be paid out of
the estate.

HYPO: If live and die in TX, would you provide in will for IA? Don’t have to. This is a big advantage
of TX probate. In other states, Probate is very costly and expensive and people go to great lengths to avoid
it. “The moral of the story is, don’t die in CT. Nice place to visit, but don’t die there.”

o Process: list claims of estate, avoids costs, delays and hassles of court supervision, all they
have to do is file the request, then there is no court supervision unless someone objects.
o Independent executor must: (1) give bond if not waived and (2) give notice to creditors.
 Must give notice to secured creditors within 60 days– cannot just publish in a
newspaper, must give direct notice in writing.
 For unsecured creditors – don’t have to give personal notice. If you do give unsecured
creditors personal notice – you can accelerate the process. They have four months from receiving notice to
present their claim – this expedites the process. (Order or payment for creditors – Prob. 320, 322)
 Duties: Pay off creditors, lock house (get keys), distribute property. File inventory.
 Give notice to creditors. For general creditors, just give a newspaper notice (legal
notices). But for secured creditors, have to write them a letter. Creditors have until the
estate is closed to file claims unless barred by SOL, but even after estate is closed, can
still give file claims until SOL. Give personal notice to UC, they only have FOUR
months to file the claim. If fail to file in that 4 months, they lose their claim. Difficult
choice if there’s a lot of debt.
 §§ 320, 322: Priority of payments: Funeral expenses, attys fees, federal government
claims outrank everything except funeral expenses and family allowance. Family
allowance is special for surviving spouse and children; gives them enough to survive on
for a year if they don’t have enough to survive on their own. Homestead also protected.
Texas is very generous in homestead provisions.

Texas Probate Code § 320. Order of Payment of Claims and Allowances

(a) Priority of Payments. Personal representatives, when they have funds in their hands belonging to the
estate, shall pay in the following order:
(1) Funeral expenses and expenses of last sickness in an amount not to exceed Fifteen Thousand Dollars
(>$1500.00).
(2) Allowances made to the surviving spouse and children, or to either.
(3) Expenses of administration and the expenses incurred in the preservation, safekeeping, and
management of the estate.
(4) Other claims against the estate in the order of their classification.

Texas Probate Code § 322. Classification of Claims Against Estates of Decedent

Claims against an estate of a decedent shall be classified and have priority of payment, as follows:
Class 1.Funeral expenses and expenses of last sickness for a reasonable amount to be approved by the
court, not to exceed a total of Fifteen Thousand Dollars, with any excess to be classified and paid as
other unsecured claims.
Class 2.Expenses of administration and expenses incurred in the preservation, safekeeping, and
management of the estate, including fees and expenses awarded under § 243 of this code, and unpaid
expenses of administration awarded in a guardianship of the decedent.
Class 3. Secured claims for money under § 306(a)(1), including tax liens, so far as the same can be paid out
of the proceeds of the property subject to such mortgage or other lien, and when more than one
mortgage, lien, or security interest shall exist upon the same property, they shall be paid in order of
their priority.

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Class 4. Claims for the principal amount of and accrued interest on delinquent child support and child
support arrearages that have been confirmed and reduced to money judgment, as determined under
Subchapter F, Chapter 157, Family Code.
Class 5. Claims for taxes, penalties, and interest due under Title 2, Tax Code; Chapter 8, Title 132,
Revised Statutes; § 81.111, Natural Resources Code; the Municipal Sales and Use Tax Act (Chapter
321, Tax Code); § 451.404, Transportation Code; or Subchapter I, Chapter 452, Transportation
Code.
Class 6. Claims for the cost of confinement established by the institutional division of the Texas Department
of Criminal Justice under § 501.017, Government Code.
Class 7. Claims for repayment of medical assistance payments made by the state under Chapter 32,
Human Resources Code, to or for the benefit of the decedent.
Class 8. All other claims.

***§ 93: Three years to bring up something to the court if there’s a contest. But if based on fraud,
misrepresentation, forgery, then have 2 years from time it’s discovered.*** (BAR EXAM)
Statute of limitations thing

Aaron Green problem pp.47-48

Do you probate?
§75- atty must deliver will to clerk of the ct.
No title to clear

Assets
1. Car- 15k- need to get a xfer of title to sell a car, is a provision in Transportation Code with just an
affidavit, form is not entirely clear that you can do it with/without a will
2. Furniture- 20k- possessor typically has title
3. Joint checking account w/ wife Martha- 3k- death certificate means joint tenancy
4. Mutual fund (joint tenancy)- 10k- jt
5. Life insurance policy w/ Martha as beneficiary- 50k
6. Pension plan naming Martha for survivor benefits
7. No real property
Liabilities
1. Utility bills- 80
2. Visa- 600
3. Dept. store- 250
4. Funeral- 8000
5. Cemetery lot- 600

If she probates will, she can do the notice to creditor thing, but probably not worth it

Is the legal duty created when letters testamentary are delivered?

Texas Probate Code § 93. Period for Contesting Probate

After a will has been admitted to probate, any interested person MAY institute suit in the proper court to
contest the validity thereof, within two years after such will shall have been admitted to probate, and not
afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery
or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided,
however, that incapacitated persons shall have two years after the removal of their disabilities within which
to institute such contest.

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 Court appointed/supervised: A drain on the estate; can be a bad situation. TX avoids it through the
option of independent administration.
 Texas Small Estate Procedure:
o TPBC §§ 137 & 138
o Can only be used when decedent died intestate (w/o a will) and no one has been appointed to
take the property
o Can only be used if entire estate’s assets are less than $50k (not. including exempt property
and homestead)
o Distributee (i.e. spouse or heir) can file a “small estate affidavit” for collection of small
estates

UPC Texas
 Formal probate  Independent administration
 Informal Probate  Court-administered administration
 Small estate procedure

Texas Probate Code § 137. Collection of Small Estates Upon Affidavit

(a) The distributees of the estate of a decedent who dies intestate shall be entitled thereto, to the extent that
the assets, exclusive of homestead and exempt property, exceed the known liabilities of said estate,
exclusive of liabilities secured by homestead and exempt property, without awaiting the appointment of a
personal representative when:
(1) No petition for the appointment of a personal representative is pending or has been granted; and
(2) Thirty days have elapsed since the death of the decedent; and
(3)
not exceed $50,000; and
(4)
disinterested witnesses, by all such distributees that have legal capacity, and, if the facts warrant, by the
natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is also
a distributee, which affidavit shall be examined by the judge of the court having jurisdiction and venue;
and
(5)
known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant
family history facts concerning heirship that show the distributees’ rights to receive the money or
property of the estate or to have such evidences of money, property, or other rights of the estate as are
found to exist transferred to them as heirs or assignees; and
(6)
and approves the affidavit; and
(7)
the person or persons owing money to the estate, having custody or possession of property of the
estate, or acting as registrar, fiduciary or transfer agent of or for evidences of interest, indebtedness,
property, or other right belonging to the estate.
(b) This section does not affect the disposition of property under the terms of a will or other testamentary
document nor, except as provided by Subsection (c) of this section, does it transfer title to real property.
(c) Title to a decedent’s homestead that is the only real property in a decedent’s estate may be transferred on
an affidavit that meets the requirements of this section. An affidavit that is used to transfer title to a
homestead under this section must be recorded in the deed records of a county in which the homestead is
located. A bona fide purchaser for value may rely on a recorded affidavit under this section. A bona fide
purchaser for value without actual or constructive notice of an heir who is not disclosed in a recorded
affidavit under this section acquires title to a homestead free of the interests of the undisclosed heir, but

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the bona fide purchaser remains subject to any claim a creditor of the decedent has by law. A purchaser
has constructive notice of an heir who is not disclosed in a recorded affidavit under this section if an
affidavit, judgment of heirship, or title transaction in the chain of title in the deed records identifies the
heir of the decedent who is not disclosed in the affidavit as an heir of the decedent. An heir who is not
disclosed in a recorded affidavit under this section may recover from an heir who receives consideration
from a purchaser in a transfer for value of title to a homestead passing under the affidavit.

Texas Probate Code § 138. Effect of Affidavit

The person making payment, delivery, transfer or issuance pursuant to the affidavit described in the preceding
Section shall be released to the same extent as if made to a personal representative of the decedent, and shall not
be required to see to the application thereof or to inquire into the truth of any statement in the affidavit, but the
distributees to whom payment, delivery, transfer, or issuance is made shall be answerable therefor to any person
having a prior right and be accountable to any personal representative thereafter appointed. In addition, the
person or persons who execute the affidavit shall be liable for any damage or loss to any person which arises
from any payment, delivery, transfer, or issuance made in reliance on such affidavit. If the person to whom
such affidavit is delivered refuses to pay, deliver, transfer, or issue the property as above provided, such
property may be recovered in an action brought for such purpose by or on behalf of the distributees entitled
thereto, upon proof of the facts required to be stated in the affidavit.
Class Hypothetical
Tate owes Blackacre in fee simple (no right of survivorship). Tate dies this morning at 12:01. At 12:02,
who owns Blackacre?
 Heirs (if intestate) or devisees (if will) own it under § 37 of Probate Code.
 “No amount of time shorter than the death of decendent and passing of title to heirs or devisees.”
 If personal property, then it’s bequest. If real property, it’s devised.
 Don’t know if Tate died with will or not.
 Lawyer has will. § 75, attorney has to deliver it to the Clerk of the Court.
 Married. Last paycheck at SMU. How does she get the money?
o Under § 160, wife can execute an affidavit that she’s the surviving spouse and no administration
is pending, take it to the finance office, and they’ll release the check to her.
 Has a lot of debts.
o Personal rep appointed to wind up Tate’s affairs. If there’s a will, then it’s delivered first, and
then PR is appointed.
o If has a will, then PR is “executor.” If intestate, then PR is “administrator.”
o Both serve same purpose: manage property, distribute it, and payoff the creditors.
o Once PR is appointed, that person has the right to possess Tate’s property even though TITLE
has vested in Heirs or Devisees, POSSESSION goes to the PR. In TX, say “executrix” or
“administratrix” which refer to FEMALE PRs.
 § 77: Gives order of people who are qualified to serve as PRs:
1. Person named in will
2. Surviving spouse
3. Devisees or legatees
4. Next of kin (related but not devisees necessarily)
5. Creditors
6. Any person of good character residing in the county.
 Any of these can waive their right to serve. If waive, passes to the next in line. If 2
people equally entitled to serve, the court chooses anyone who can do it better
(advantageously).

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 PR has to post bond. BUT standard clause in the will that “no bond must be furnished
by the executor.” Good idea to waive it so that they don’t have to get insurance or post
bond.
 § 78: Disqualified to serve as PRs
o Non-residents who failed to appoint a resident agent in the county
o Convicted felons
o Incapacitated people
o Etc.
 § 74: Have four years from person’s death to apply for letters testamentary.
o After 4 yrs, could still probate will, but can’t have an administration (get letters testamentary).
Unless it’s to get money owed by the estate (?).

HYPOTHETICAL—Probate not always necessary—Page 38-39

Aaron married to Martha and died with the following property:

 Furniture, tangibles $10,000
o Passes automatically
 Savings account in Aaron’s name 5,000
o If joint tenancy, then passes automatically to M
o Have to go to probate court to get this $:
 §137: “Small estate procedure.” Heirs can show up and fill out an affidavit that will be
sufficient to transfer bank acct without PR having to be appointed (**BAR Q**). Best
for M.
 §48: More difficult. Appoint atty ad litem. Best to avoid this.
 Joint checking w/ Martha 1,500
o Passes automatically
 Employer’s pension plan, naming Martha as beneficiary Life Annuity
o M sends death certificate to pension for it to pass
 Government bonds payable to Aaron or Martha 5,000
o Passes automatically—“On death of one, then to the other”
 Ordinary life insurance policy naming Martha as beneficiary 25,000
o Passes automatically (non-probative)
 Ford car 7,500
o In Texas Motor vehicles don’t need probate to pass title
And the following debts:
 Utility bills (3) $40
 Visa (2) 300
 Dept. store card (2) 125
 Exxon card (2) 35
 Funeral bill (1) 1,225
 Cemetery lot (1) 300
o M can pay these all off on her own b/c not worth it to hire a lawyer to go to probate court and
send notices to creditors than it would cost for her to pay these herself.
o No taxes on the estate b/c well below the federal exemption.

Problem #2
Aaron/Martha Green Problem continued…

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Not always necessary to probate a will when the estate is small and there are few debts. Surviving JT
doesn’t need anything from probate court to access funds/property. No title-registration certificate for
furniture, so it automatically vests in heirs/devisees. Property would already belong to Martha. Martha
would only go to the court if there’s something that she needs.
 Small-estate procedure: Heirs fill out affidavit saying that they’re the heirs and they are the owners of
the property. Take it to the bank; have bank transfer title.
 Unknown heirs: Court appoints attorney ad litem to determine unknown heirs. More complicated than SEP,
and have to pay AAL.

Problem #3
 § 89(a): “Excluding debts secured by liens on real estate”
 § 89(c): Can have will admitted to probate as a muniment only. Use will as proof by the court who the
real estate goes to.
o When you probate a will, always get a muniment of title.

D. Formalism in the Law of Succession: The Slayer Rule Casebook: 126-31

The Slayer Rule- Tendency toward formalism
o Rule of Law/Mahoney Rule for voluntary killing: If there is a voluntary killing, then the slayer
(normally a spouse) holds a constructive trust of the assets for the other heirs/next of kin. This way the
money will pass to the innocent people (the next of kin/heirs). The slayer is not allowed to profit from
his or her wrong doing, but the innocent should not be punished.
o Involuntary killing: If there was an involuntary killing/manslaughter (i.e. slayer was insane), then slayer
would still get the assets. There is a distinction b/w voluntary and involuntary.
o Tenant in common: If the slayer was a tenant in common, then she would already have a vested interest
and would take the assets (not as a constructive trustee). Joint tenancy would require divestiture of a
genuine vested prop rt.
o Most states have slayer statutes to keep courts from jumping though hoops to keep murderer from
inheriting under intestate succession
o Suicide: If spouses leaves her separate property all to her parents in her will before she commits suicide,
they should still get that property – it’s not the job of the PC to ascertain intent.
o Non-Conviction: The court looks at the matter under the PREPONDERANCE OF THE EVIDENCE
STANDARD. An acquittal or dismissal are not dispositive.
o Need a separate proceeding in Texas b/c Const. says that no corruption of blood for crime
o Standard in criminal case is high b/c protect the accused. Different issue with a will.
o If still alive at the division of the estate, that’s a different animal
 Estate of Covert- murder-suicide, shouldn’t punish decedents, goes to decedents
 I guess a question of timing
 Take away distributions to others if it will wind up with the slayer
o Formalism- pretending they are following intestacy statute when they are diverting around it, making
new stuff. Look to the form and the statute in probate.

In re Estate of Mahoney
Supreme Court of Vermont, 1966
220 A.2d 475
Facts: The wife was convicted of manslaughter in the death of her husband. The probate court decreed that
the decedent’s estate was to go to his parents, because a widow convicted in the death of her husband
cannot inherit his estate. Decedent appealed the probate court’s decision.
Held: A conviction of voluntary manslaughter disables the party from taking under the decedent’s will or through
intestate succession.

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In order to be consistent with the law of heirship the court finds that the title passes to the spouse, but the
slayer is only the trustee of a constructive trust because the legal title (slayer) holder cannot in good
conscience retain any beneficial interest
TRUST: Legal device whereby property is managed by a trustee on behalf of beneficiaries. Normally a trust
is voluntary; but here, it’s involuntary (imposed on Charlotte against her wishes.)

 “Constructive” is a transparent lie not to violate something, and what the court doesn’t want to violate
is the testacy statute.
 If she and husband had been tenants in common, where each held an interest in property, but the death
of one caused that portion to go to the heirs/devisees. She would take only half, not all.
 Case remanded, proceedings stayed. Would have to give property to Howard’s parents b/c if gave to
C’s parents, chance that they’d give it back to her while she’s still alive.
 UPC: Treat as though they disclaimed; does not require a criminal conviction. §2-803 Why? Don’t
need a separate proceeding. Court determines under a preponderance of the evidence standard (lower
b/c determining under a civil statute, not a criminal one.
 Slayer treated as having disclaimed the estate (refuse to take your share of the inheritance).
o UPC: Someone who disclaims and estate is treated has having pre-deceased the decedent.
o If criminal conviction, that’s conclusive evidence under the UPC; but can still apply statue if
shown that person committed the wrongful act by a preponderance of the evidence.
o Standard in criminal case is high b/c protect the accused. Different issue with a will.
o TX: Beneficiary under life insurance policy who slays the named person will not take; will go
to other beneficiary or to heir. Applies constructive trust doctrine that’s in Mahoney.

UPC TEXAS
 Disclaimer rule: Treats a slayer as a person  Rule of Mahoney is law in Texas, insurance
who disclaimed the property or has predeceased policies §41d (no statute, but still in caselaw in
the victim. Texas for probate)
 Does not consider the slayer as holding a  If there is a voluntary killing, then the slayer
constructive trust. (normally a spouse) holds a constructive trust of the
assets for the other heirs/next of kin.
II. Intestate Succession

A. Statues of Descent & Distribution

1. The Basic Scheme pp 59-65, 73-83; Exhibit 2A

Rules of Intestacy (Default Law)
 Applies when someone opts for a different scheme of distribution
 Most common/clearest case: Don’t have a will; but can also happen when there’s a will if the will only
disposes of a portion of your property, then can have partial intestacy. Lawyer’s deal with this with a
“residuary clause” (E.g., “I leave the remainder of my estate to my brother.”).
 Can also come up when the will is invalid. Not executed in compliance with the will act formalities. If
no valid will, then go to intestacy rules as if there was no will at all.
 May have partial intestate if you do not specify what happens to part of your property (lawyers
normally avoid this partial intestate problem by saying “I leave the rest of my estate to X”)
 Some people believe that if a person does not write a will it should go straight to the state. A “bill of
confiscation” would create a lot of revenue for the states OR would force people to write a will.)
 We have these rules because of assumption that if there would have been a will, it would have left the
wealth to people with closest relationship.

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 Separate Property States and the UPC on Intestacy In most separate property states, the spouse
gets nothing under intestacy, but the UPC is more generous to SP individuals – see below box.
 Community Property States and the UPC on Intestacy UPC § 2-102A gives all of decedent’s
interest in community property to the surviving spouse. This is in addition to regular intestacy rules.
This means that first the community property is removed from consideration – then UPC § 2-102A
intestacy rules are applied to the remaining separate property.
 Jurisdiction/Situs:
o Personal Property: law of state where decedent was domiciled at death governs disposition of
personal property
o Real Property: law of state where the decedent’s real property was located governs
disposition of it
 Under UPC 2-103, any share in separate property not passing to surviving spouse under UPC § 2-102
goes to:
o 1st—Descendants by representation  get whole thing
o 2nd—If none, then to parents equally or to the surviving parent  get whole thing
o 3rd—If none, to descendants of decedent’s parents by representation (siblings, nieces,
nephews) 
o 4th—Half to parental grandparents, half to maternal grandparents or to descendents thereof (or
entire to one side if only side existing)  inc. aunts, uncles, first cousins
o STOP— Furthest you go under UPC is the grandparents. Great-grandparents do not take and
second cousins do not since they are not descendents of the grandparents of decedent. 
Then escheats to state.
 Policy Issues:
o Why have the rules giving inheritance to people that didn’t even necessarily expect it because
there was no will? Why doesn’t the State take it and do good?
 The decedent owned the property and has the freedom of property.
o Need to take care of children and spouse
o But what about distant relatives? Why should they receive a windfall?
Texas law on intestacy
 See CHART ON NEXT PAGE if there is a surviving spouse.
 Half-siblings get less
 Land must go to a relative – it never escheats to the state
 TPBC does not make distinctions based on separate property for intestacy, existence of additional
children affects the kids’ share – but not the spouse’s share.
 Laughing heirs: Texas does NOT draw the line at grandparents, like the UPC; there are infinite # of
descendents
 TPBC makes no distinction to what marriage the children are from, as long as they are children of the
decedent.
 Under TPC § 38(a), if the decedent left no surviving spouse, the decedent’s property passes as
described below (Note – This distribution order also applies to the one-half interest in the decedent’s
land that does not pass to the surviving spouse under TPC § 38(b)(2)).
1. Children and their descendants.
2. If none, to father and mother in equal shares. (if BOTH parents alive, siblings do not take)
 If one parent is deceased, still divide and pass ½ to brothers and sisters, and their
descendants.
 If no siblings or descendants of siblings, then surviving parent takes all.
3. If no surviving father or mother, then to siblings and to their descendants. (nieces and
nephews)

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 Note – The process stops here with respect to the ½ interest in the decedent’s land that
does not pass automatically to the surviving spouse under TPC § 38(b)(2). If the
decedent has no surviving parent, sibling, niece, or nephew, then the property goes to
the surviving spouse.
4. If no parents, brothers, sisters, or their descendants, then divide into halves – 1/2 to maternal
grandparents, 1/2 to paternal grandparents.
 If only one paternal (or maternal) grandparent is living, divide share and give half to
grandparent and half to descendents of deceased grandparent.
 If no descendents, surviving grandparent takes whole share.
 If no surviving ANY grandparent, then entirety to descendants of grandparents, and so
on w/o end.
Problems p. 64-65
Elective Share concept: If someone dies leaving a will in most states and survived by a spouse, the spouse
is entitled to a share in the estate; even if decedent left everything to his brother, the wife might be able to
elect to take against the will (some percentage of the value of the estate). Under the UPC, there’s a sliding
scale for this. The percentage depends on how long the marriage lasted. If it lasted for 1 year, then 3%, then
increases until it reaches 50%. TX (Community Property State) does not have an elective share b/c surviving
spouse is presumably taken care of by the CP rules.
Good chance that if older, then one has a child from a prior marriage.

UPC § 2-102 Texas TPBC § 38

 UPC does NOT distinguish b/w real
and personal property! Most people prefer
UPC over TX method.
These BELOW apply to the remaining separate
property ONLY (All the CP goes to the spouse as long
as ALL the kids are from both these spouses. If kid of
the decedent is not a child of surviving spouse, then CP
is split w/ spouse getting ½ of CP & decedent’s ½ share
passing to ALL kids of decedent.)

No children, but surviving parent of decedent:
spouse takes first $300k + ¾ balance, parent
gets rest UPC §2-102(2)
No children, but surviving parent of decedent Spouse
gets ALL personal estate + ½ land, if BOTH parents
survived, parents split other ½ land, siblings get 0. If
only one parent survives and there are siblings: siblings
get ¼ land (no matter # of siblings, split this), & parent
gets ¼ land (if no descendants) TPBC §38(b)(2)

Siblings and spouse survive: Spouse gets Siblings and spouse survive: Spouse gets all personal
everything if decedent dies intestate (and no estate + ½ land and siblings get ½ if decedent dies
descendents) and siblings get 0 if kids are from intestate (if there are no descendants) – Texas “keeps
same parents. UPC §2-102(1) land in the family”

Parent, spouse, and siblings survives: spouse
gets the first $300k + ¾ of any remaining
balance of the estate, parents gets the balance,
siblings gets 0 (if there are no descendents)
UPC §2-102(2)
One parent, spouse, and siblings survives: Spouse gets
ALL personal estate + ½ land, siblings get ¼ land (no
matter how many siblings, they split this), & parent
gets ¼ land (if there are no descendants) TPBC §38(b)
(2) Note: If BOTH parents survived, parents split the
½ land, siblings get 0.

No children, no parent of decedent: spouse gets No children, no parent of decedent: spouse shares w/
everything per UPC 2-102(1)(i) living siblings of decent. Spouses gets ALL personal
prop + ½ land. Siblings (no matter how many) get ½

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Same children, parent, spouse, and siblings
survives: spouse gets everything and kids get
nothing since the kids are all their kids §2-
102(1)(ii)
Surviving spouse had another child outside this
marriage (and decedent did not): spouse gets first
$150 + ½ balance, gets less (outside child gets
nothing) §2-102(3)
land.
Same children, parent, spouse, and siblings survives: if
there are descendants, surviving spouse always gets 1/3
of personal estate and 1/3 life estate in land, kids split
the rest (2/3 of personal, 2/3 of land) & have remainder
in the 1/3 life estate in land. E.g., if 2 kids, spouse gets
1/3 personal estate and life estate in 1/3 land; kids get
2/3 personal estate (1/3 each) and get 2/3 of land
absolutely (1/3 each) and remainder in 1/3 their parent
has (1/6 remainder each). Parent & sibling get 0 here.

Decedent had another child, outside of this
marriage: spouse gets the first $100k + ½
balance of estate, the remaining kids (inc. the
one who is not spouse’s child, but the
decedent’s kid) split remaining estate evenly
§2-102(4)
Decedent was the only descendant of his
grandparents and everyone else dies: estate will
escheat to the estate, the furthest you go under
the UPC is the grandparents and the
descendants (great grandparents take nothing)
Half-blood v. full-blood siblings: UPC does not
distinguish b/w half-bloods and full-bloods
(half-siblings)
Cousins: first cousins are descendants of
grandparents, so they can take; however a first
cousin twice removed is a descendent of a
great-grandparent instead and may not take
UPC § 2-103, See table of consanguinity on p.
79.
Surviving spouse had another child outside this
marriage: same as above, outside child doesn’t change
situation (outside child gets 0)
Decedent had another child, outside of this marriage:
spouse gets 1/3 life estate in the land and 1/3 personal
estate; kids split remaining estate evenly (split personal
& real estate evenly) + remainder
Decedent was the only descendant of his grandparents
and everyone else dies: it will not go to the state
normally – keep looking for additional relatives until
you find someone (infinite # of family members can
inherit  “laughing heirs”
Half-blood v. full-blood siblings: half-blood sibling
(step-sibling) gets ½ as much as full-blood sibling, but
if all are half-siblings then they have whole portions
TPBC §41(b)
Cousins: cousins may take, infinite number of
descendants in TX, doesn’t matter if related through
grandparents or great-grandparents

Texas Probate Code § 38. Persons Who Take Upon Intestacy

(a) Intestate Leaving No Husband or Wife. Where any person, having title to any estate, real, personal or
mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred,
male and female, in the following course:
1. To his children and their descendants.
2. If there be no children nor their descendants, then to his father and mother, in equal portions. But
if only the father or mother survive the intestate, then his estate shall be divided into two equal
portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and
sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall
be inherited by the surviving father or mother.
3. If there be neither father nor mother, then the whole of such estate shall pass to the brothers and
sisters of the intestate, and to their descendants.
4. If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one

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of which shall go to the paternal and the other to the maternal kindred, in the following course: To the
grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be
divided into two equal parts, one of which shall go to such survivor, and the other shall go to the
descendant or descendants of such deceased grandfather or grandmother. If there be no such
descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If
there be no surviving grandfather or grandmother, then the whole of such estate shall go to their
descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their
descendants.
(b) Intestate Leaving Husband or Wife. Where any person having title to any estate, real, personal or mixed,
other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or
wife, such estate of such intestate shall descend and pass as follows:
1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall
take one-third of the personal estate, and the balance of such personal estate shall go to the child or
children of the deceased and their descendants. The surviving husband or wife shall also be entitled
to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of
the intestate and their descendants.
2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall
be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any
person, and the other half shall pass and be inherited according to the rules of descent and distribution;
provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or
sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate
of such intestate.

Uniform Probate Code § 2-102. Share of Spouse.

 The intestate share of a decedent's surviving spouse is:
(1) the entire intestate estate if:
(i)  no descendant or parent of the decedent survives the decedent; or
(ii)
is no other descendant of the surviving spouse who survives the decedent;
(2) 
decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) 
descendants are also descendants of the surviving spouse and the surviving spouse has one or more
surviving descendants who are not descendants of the decedent;
(4) 
surviving descendants are not descendants of the surviving spouse.

Texas Probate Code § 39. No Distinction Because of Property's Source

There shall be no distinction in regulating the descent and distribution of the estate of a person dying
intestate between property which may have been derived by gift, devise or descent from the father, and that
which may have been derived by gift, devise or descent from the mother; and all the estate to which such
intestate may have had title at the time of death shall descend and vest in the heirs of such person in the same
manner as if he had been the original purchaser thereof.

Texas Probate Code § 41. Matters Affecting and Not Affecting the Right to Inherit
(b) Heirs of Whole and Half Blood. In situations where the inheritance passes to the collateral kindred of
the intestate, if part of such collateral be of the whole blood, and the other part be of the half blood only,
of the intestate, each of those of half blood shall inherit only half so much as each of those of the whole
blood; but if all be of the half blood, they shall have whole portions.

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Texas Property Code § 71.001. Escheat

(a) If an individual dies intestate and without heirs, the real and personal property of that individual is
subject to escheat.
(b) "Escheat" means the vesting of title to property in the state in an escheat proceeding under Subchapter B.

Texas Property Code § 71.003. Presumption of Intestacy—7 YEARS

An individual is presumed to have died intestate if, on or before the seventh anniversary of the date of the
individual's death, the individual's will has not been recorded or probated in the county where the individual's
property is located.
Table of Consanguinity p. 93

4. Great-Great
Grandparents

3. Great 5. Great-Grand
Grandparents Uncles/Aunts

4. Great 6. 1st Cousins Twice

2. Grandparents
Uncles/Aunts Removed

5. 1st Cousins Once 7. 2nd Cousins Once

1. Parents 3. Uncles/Aunts
Removed Removed

PERSON 8. 3rd Cousins

2. Brothers/Sisters 4. 1st Cousins 6. 2nd Cousins
DECEASED

5. 1st Cousins Once 7. 2nd Cousins 9. 3rd Cousins Once

1. Children 3. Nephews/Nieces
Removed Once Removed Removed

4. Grand 6. 1st Cousins 8. 2nd Cousins 10. 3rd Cousins Twice

2. Grand Children
Nephews/Nieces Twice Removed Twice Removed Removed

3. Great-Grand 5. Great-Grand 7. 1st Cousins 9. 2nd Cousins 11. 3rd Cousins Thrice
Children Nephews/Nieces Thrice Removed Thrice Removed Removed

Per Stirpes – Three basic systems for distributing an intestate’s estate p. 87 exercises, 90, 92-93, 97
o If one branch is completely dead, ignore it

 English Per Stirpes (EPS): 12 states follow—STRICT PER STIRPES

o Divide at level of decedent’s children – whether or not those children are dead or alive; others
take by representation – split at each level of children. Children take according to their parents’
share.

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o Vertical equality-each line of descent treated equally

o Example—Ann has 2 kids, Bob & Cat. Both children are dead. Bob has 1 surviving kid,
Dan. Cat has two surviving kids, Eric & Fay. Under the EPS system, A’s property is divided
into 2 shares at the level of Ann’s children. Dan takes Bob’s ½ by representation and Eric & Fay
split C’s ½ by representation (so they get ¼ each).
Ann

Bob Cat

Dan(1/2) Eric (1/4) Fay (1/4)

o Example—Ann has 2 kids, Bob & Cat. Bob dies before Ann, leaving child, Dan. Cat dies before
Ann, leaving 2 kids, Eric & Fay. Eric dies before Ann, leaving 2 kids, George & Harry. Under EPS,
Dan gets ½, Fay gets ¼, George & Harry each get an 1/8.
Ann
Bob Cat
Dan (1/2) Eric Fay (¼)
Harry (1/8)
George (1/8)

 Modern Per Stirpes (MPS) TEXAS follows:

o Divide at the first level of living children/descendants (start dividing at first generation where
someone is alive) – split at that level, descendants of dead will inherit the portion of their parents.
o Looks to see whether any children survived decedent. If any children did survive decedent,
then the distribution is identical to that under EPS. If no children survive the decedent, then the
estate is divided equally at the first generation in which there are living—Texas has this system
and the original UPC adopted this one; this is the majority of states’ approach
o Each line of descent treated equally beginning at first generation with a living taker
o Example—Ann has 3 kids, Bob, Cat, & Dan. Bob & Cat are dead. Bob has 1 surviving kid,
Danny. Cat has two surviving kids, Eric & Fay. Under MPS system, Ann’s estate is divided equally
into thirds between Dan, Cat (E 1/6 & F 1/6), & D. (each get 1/3)

Ann

Bob (1/3) Cat (1/3) Dan (1/3)

Danny (1/3) Eric (1/6) Fay (1/6)

o Example—Ann has 2 kids, Bob & Cat. Bob dies before Ann, leaving child, Dan. Cat dies before
Ann, leaving 2 kids, Eric & Fay. Eric dies before Ann, leaving 2 kids, George & Harry. Under MPS,
Dan gets 1/3, George & Harry each get 1/6, Fay gets 1/3.
Ann
Bob Cat
Dan (1/3) Eric Fay (1/3)
Harry (1/6)
George (1/6)

 Per Capita At Each Generation (PCAEG):

o Divide initially at the first living generation level, then take the remaining parts and divide
those equally at that generation, all generations get the same, similar to modern per stirpes—
Equally Near, equally dear!
o 1990 UPC has now adopted this one (11 states)
o Horizontal equality- each taker at each generation treated equally
o Example—Ann dies intestate. Ann has 3 kids – Bob, Cat, & Dan. Only Dan is alive. Bob
had 1 kid, Eric. Cat had 2 kids, Fay & Greg Dan gets 1/3. E, F, & G divide up 2/3.

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Ann

Bob Cat Dan (1/3)

Eric (2/9) Greg (2/9) Fay (2/9)

o Example—Ann has 2 kids, Bob & Cat. Bob dies before Ann, leaving child, Dan. Cat dies
before Ann, leaving 2 kids, Eric & Fay. Eric dies before Ann, leaving 2 kids, George & Harry.
Under PCAEG, Dan gets 1/3, G & H get 1/6 each, F gets 1/3 (same as MPS would be in this
instance.)
Ann
Bob Cat
Dan (1/3) Eric Fay (3)
Harry (1/6)
George (1/6)

A lot of wills keep the English per stirpes, why?

1. Following previous wills, boilerplate forms
Half-blood problems p. 97
1. TEXAS: half-bloods get ½ of what they would get (unless they are all half-blood)
a. In practice: how do you determine?
i. 1 half, 1 whole- 1/3 to 2/3,
b. Policy: likely to have inherited from father, want twice as much to go to claim on both
parents property
i. Doesn’t make any difference where the property came from
ii.
Texas Probate Code § 43. Determination of Per Capita and Per Stirpes Distribution—MODERN PER
STIRPES
When the intestate's children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the
deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take
per capita, namely: by persons; and, when a part of them being dead and a part living, the descendants of
those dead shall have right to distribution upon intestacy, such descendants shall inherit only such portion of
said property as the parent through whom they inherit would be entitled to if alive.
Special Intestacy Issues
Putative spouse
o Defined as one who is not a legal spouse but who proceeded under good faith belief that they
are married.
o Most states & UPC give putative spouse intestacy rights that are akin to spouses for intestate
succession
o But, if bigamous marriage, second wife may not get anything. Her marriage may not be
valid.
o Not married, but promised to take care of her – claim under contract, but not under intestacy.
Pending divorce (separated spouses still married!)
o UPC says until divorce is finalized, the spouses are still legal spouses and still inherit
under intestacy.
Unmarried cohabiters
o If common law marriage (depending on law in the state), will be considered spouses with
normal spouse rights. (Texas is one of twelve states that recognize CL marriage)
o If not married by CL marriage, different approaches:
1. ALI suggests treating all people who cohabit and have a common child for two
years as having same legal rights of married people. If no child, then three years is
required.

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2. Formal: if not married – no rights. Clear & simple. Preserves expectations.

3. Constructive trust: court may create a constructive trust in favor of the
cohabiter
4. Contract: enforce the parties’ expectations as determined by:
a. Express written k of sharing in assets at death: some states require this
to enforce expectations, otherwise cohabiter will have no rights whatsoever
b. Implied k: some states will imply a k and will hear evidence to
determine the parties’ expectations
c. Meretricious k: if primary purpose of cohabitation was sex states will
not enforce these kx of cohabitation
Same-Sex Relationships
 Ross v. Goldstein (Ct. of App. Houston) 203 S.W.3d 508 (2006).
1. Same-sex relationship that is “marriage-like,” impose a constructive marriage
2. Problem: in Texas it doesn’t recognize same-sex marriages or anything like it
a. In Texas constitution
b. Family law provision
3. Holding: legislature has already addressed this, can’t create common-law, can get around this
contractually
4. Answers: he could write him in the will (if competent)
5. UPC also doesn’t address
6. Counter-arg: it would probably be the average testator would want to go to their pseudo-spouse
(policy goes against this)
Problems—Page 76-77
1. A has two children, B & C. B dies leaving 1 child, D. C dies with 2 children, E & F. E dies with 2
children G & H.
TX: Follow modern per stirpes. D = 1/3; F = 1/3; [G = 1/6; H = 1/6]
1990 UPC: D = 1/3; F = 1/3; [G = 1/6; H = 1/6]
English: D=1/2; F=1/4, [G=1/8; H=1/8]
Per Capita: D = 1/3; F = 1/3; G = 1/6; H = 1/6 (same as modern per stirpes)
What if B marries S? Does S have any expectancy?
S cannot inherit from A, her mother-in-law.

2. A has three children, B, C, & Z. B dies leaving 1 child, D. C dies with 2 children, E & F. E dies
with 2 children G & H. F is still alive and has one child, I.
Does not change anything.
I = gets nothing b/c parent, F, is still alive (don’t take on the death of your parent’s ancestor); Z = line
died out, so gets nothing

Problems—Page 82
1. Mom and Dad had three kids; Sue, Sidney, Bob; Bob had two kids: Fred and Ted. (Sidney dies
and is survived by his mother, sister, and two nephews)
UPC:§ 2-103(2)—Mom inherits everything, despite fact that sister and nephew survived.
TPC: § 38(a)(2)—Mom gets ½ of estate; § 43: Sue gets ¼; Ted and Fred each get 1/8.

2. Sidney survived by a 1st cousin on mother’s side and 2 1st cousins on father’s side.
UPC: Estate divided into two moieties; one goes to father’s side, other half goes to mother’s side.
TPC: §38(a)(4)—SAME AS UPC; ½ to paternal kindred; ½ to maternal kindred.
3. Descendent is survived by A (First Cousin of Descendent’s Mother) and B (Granddaughter of
Descendents First Cousin).
A is a First Cousin Once Removed. B is First Cousin Twice Removed.

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UPC: B would get everything. UPC does not allow inheritance beyond the Grandparents, so
A could not receive any inheritance.
TPC:
4. Mom had 2 husbands. Had 1 child with husband 1 (Alice); 2 children with husband 2 (Betty and
Carol; Carol dies; how would her estate be distributed?);
UPC: Alice and Betty get half (doesn’t treat half-siblings differently from whole siblings)
TPC:
2. Community Property 417-19, 455-58; Ex. 2B, 2C
2 jurisdictions on exam: community property or UPC provisions for

Constitution of the State of Texas

Art. XVI, § 15. Separate and community property of husband and wife
All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired
afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed
more clearly defining the rights of the spouses, in relation to separate and community property; provided
that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by
written instrument from time to time partition between themselves all or part of their property, then existing
or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in
any property for the community interest of the other spouse or future spouse in other community property
then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and
constitute a part of the separate property and estate of such spouse or future spouse; spouses also may from
time to time, by written instrument, agree between themselves that the income or property from all or part of
the separate property then owned or which thereafter might be acquired by only one of them, shall be the
separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to
include all the income or property which might arise from that gift of property; spouses may agree in writing
that all or part of their community property becomes the property of the surviving spouse on the death of a
spouse; and spouses may agree in writing that all or part of the separate property owned by either or both of
them shall be the spouses' community property.
Art. XVI, § 52. Descent and distribution of homestead; restrictions on partition
On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other
real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall
not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so
long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the
minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction,
to use and occupy the same.
Texas Family Code
§ 3.001. Separate Property
A spouse's separate property consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of
earning capacity during marriage.
§ 3.002. Community Property
Community property consists of the property, other than separate property, acquired by either spouse during
marriage.
§ 3.003. Presumption of Community Property
(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community
property.
(b) The degree of proof necessary to establish that property is separate property is clear and convincing
evidence.

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Other Texas Rules: (1) income from separate property is community property (can be changed), (2) can
make gifts of separate property, or ½ of community property, then it is a separate property for other spouse
§ 4.102. Partition or Exchange of Community Property
At any time, the spouses may partition or exchange between themselves all or part of their community
property, then existing or to be acquired, as the spouses may desire. Property or a property interest
transferred to a spouse by a partition or exchange agreement becomes that spouse's separate property. The
partition or exchange of property may also provide that future earnings and income arising from the
transferred property shall be the separate property of the owning spouse.
§ 4.202. Agreement to Convert to Community Property
At any time, spouses may agree that all or part of the separate property owned by either or both spouses is
converted to community property.
§ 4.203. Formalities of Agreement
(a) An agreement to convert separate property to community property:
(1) must be in writing and:
(A) be signed by the spouses;
(B) identify the property being converted; and
(C) specify that the property is being converted to the spouses' community property; and
(2) is enforceable without consideration.
(b) The mere transfer of a spouse's separate property to the name of the other spouse or to the name of both
spouses is not sufficient to convert the property to community property under this subchapter.
Texas Probate Code
§ 45. Community Estate
(a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased
spouse passes to the surviving spouse if:
(1) no child or other descendant of the deceased spouse survives the deceased spouse; or
(2)
the surviving spouse.
(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased
spouse survives the deceased spouse and the child or descendant is not a child or descendant of the
surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-
half passes to the children or descendants of the deceased spouse. The descendants shall inherit only
such portion of said property to which they would be entitled under Section 43 of this code. In every
case, the community estate passes charged with the debts against it.
RULE: Because Husband & Wife are in a partnership, whatever each spouse earns is Community
Property of the Husband & Wife. But property acquired because marriage or acquired during
marriage by gift, devise, or dissent, is the Separate Property of the spouse who acquired it.
 Ambiguity: Presume that it’s CP. Can overcome with clear & convincing evidence.
 Community property: any property that is not separate (if doubt something is separate, assume it is
community)
o UPC § 2-102A gives all of decedent’s interest in community property to the surviving spouse. This
is in addition to regular intestacy rules. This means that first the community property is removed
from consideration – then UPC § 2-102A intestacy rules are applied to the remaining separate
property.
o In Texas, income from spouse’s separate property IS community property. (not true with all
CP states)
o Commingling: follow the “community out first rule” – if there is a commingled bank account,
presume the community funds were taken out first.
o Rationale behind community property: when parties are spouses, they are acquiring prop during their
marriage and then that prop is shared
 Separate property:
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o property acquired before the marriage, on agreement of the parties or property acquired by
gift, devise, or descent; $ recovered from personal injuries for pain and suffering (unless it’s for loss
of wages or earning capacity or medical bills during the marriage)
o Inceptions of title rule: The character of the asset is determined when the asset is acquired.
If get title before the marriage, then it’s separate property. If CP funds later spent, doesn’t matter; but
if acquire title after marriage, then presumptively CP. (applies to life insurance!)
o In most separate property states, the spouse gets nothing under intestacy (UPC is more
generous to SP individuals).
 Changing character of property: Spouses can agree to change the character of property – can
partition/convert property either way to community or to separate (after you are married).
 Gifts by spouse: Spouse may make reasonable gifts to other people as long as fraud is not
occurring. (If gift is to a non-relative this will lean toward fraud. The greater the size of a gift is another
factor that leans toward fraud.)
Debt is community debt.
You can change separate property into community property or vice versa in Texas. The property has to be
specific property. Persons about to marry can change property they already have and will have.

Texas law on community property

 Rule of law: After the separate property is disbursed according to § 38 above, then the community
property must be divvied out. If all the surviving children of the decedent are also children of the
surviving spouse (or if there are no children), the surviving spouse gets the entire community
property estate. If the decedent does have children outside of this marriage, then the surviving spouse
gets ½, and the children (no matter how many there are) split the other ½ evenly.
 Income from separate property is considered CP (since it is income made during the marriage); e.g.,
dividends, interest
o But if spouses don’t like that and want the property to retain its quality, can partition so that it
remains separate (can do in the prenup). Can even partition all income.
o Can’t change something into CP before marriage, but can do it after (or before to happen at a certain
time?)
 As of 2000 (change since the printing of this book), you can convert SP into CP (TX Const. Amend.)
Such as agreement must: (1) be in writing, (2) be signed by the parties, (3) agreement must be made
during marriage
o People about to get married can change community property into separate property by
voluntary agreement, but they can’t change separate property into community property. I.e.,
they may want to agree that income from each other’s SP shall remain separate property
instead of the income from SP being consider CP.
 Spouses can agree to change separate property into community property once they get
married (but not before) by written agreement, etc.
o Can partition community property before you get married and can agree that income from
separate property will retain its separate status. This applies to future community property.
TX: Inception of Title Rule—Quality of the asset is determine WHEN it is acquired. If acquired b/4 marriage,
then SP. After, then presumed CP (unless spent SP $ to acquire it). If take out a loan using SP as DP and using
C credit for rest, then presumption that CP.
o Life Insurance: If initial premium b/4 marriage, then SP, even if later use CP funds to pay for
additional premiums.
 CE has equitable claim for reimbursement (would be share of CP paid to premiums)
 Check would be paid to beneficiary, community estate must then go to court
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 TX: ER only for actual amt of the premiums (no upside, no additional proceeds that
exceed what was paid out). Arguably, CE should get some of the upside, but SE took
out earlier, so should be entitled to the upside as well.
 CP used to pay down secured debt on an SP asset, no claim for ER, but for contribution (complicated
formula).
 CP treated differently under TX intestacy laws; if no surviving descendants or all of decedent’s
descendants are descendants of surviving spouse, then SS gets all property. B/C burdensome for SS to
have to get guardianship of children and report to court if she wants to sell the asset; better to own
outright; presume that she will take care of her own children.
o No similar rule for SP. B/C TX preference for keeping some prop with the family; presumed to
have been inherited from his parents, so keep w/his fam, not with SS who might remarry, give
to someone else.
MAIN REASON FOR DIFERENCE IN RULE BETWEEN LIFE INSURANCE AND HOME EQUITY—To
calculate what a life insurance policy would have costs had he waited until marriage is difficult to calculate,
whereas price of home can be more easily calculated

Exercise 3:
If purchased by part SP part CP, keep the ratio to expand with the value,
So 50k SP on a 200k CP house, then it’s worth 400k = SP 100k, 300k CP,

3. Simultaneous Death Casebook: 67-68 (top); Exh. 3 (TPBC §§ 41(a), 47)

 Rule of Law under the Uniform Simultaneous Death Act: If no sufficient evidence of who died first
and the two died together, assume the beneficiary pre-deceased the donor. Thus, neither inherits from the
other.
o Also, if two JTs or two people hold a tenancy by the entirety or community property and they die
simultaneously, ½ property is distributed as if the first one survived, and ½ property is distributed
as if the other one survived.
o Courts had a hard time defining what constitutes “sufficient evidence” for purpose of the order of
the deaths
o This problem comes up in wills, intestacy, trusts, insurance policies, & other non-probate
transfers (normally people draft their wills so that the other does not take if they die in a common
disaster)
 Life Insurance: when the insured and the beneficiary die simultaneously, the proceeds are distributed as
if the insured survived the beneficiary (estate goes to heirs of insured or a contingent beneficiary)
 UPC (minority): §2-104—120 hour rule—a will beneficiary that fails to survive a beneficiary by 120
hours is treated as if she predeceased the testator, absent a specific clause in will to the contrary
o Important: unless the will makes a contrary provision. “…if he survives me.” kicks the 120 hr.
rule out of play and any evidence of survival means survival.
Texas law on simultaneous death
Rule of law: If two people die simultaneously or within 120 hours of each other, the court will
distribute H’s ½ share as if he survived and distribute W’s ½ share as if she had survived
o If W and H die more than 120 hours apart (even if stemming from the same car accident),
then the usual intestacy rules apply as if the one who died second already inherited from the
one who died first.
Simultaneous death vs. Survival by 120 hours. Purpose: don’t want to hold up the proceedings and give
property to someone who can take it. Legislature decided on this number. If drafting a will, don’t want to
make this survivorship period too long (Tate suggests 30 days, not 90 days) b/c want some finality and not a
lot of waiting around.
Texas Probate Code § 47. Requirement of Survival by 120 Hours

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(a) Survival of Heirs. A person who fails to survive the decedent by 120 hours is deemed to have
predeceased the decedent for purposes of homestead allowance, exempt property, and intestate
succession, and the decedent's heirs are determined accordingly, except as otherwise provided in this
section. If the time of death of the decedent or of the person who would otherwise be an heir, or the
times of death of both, cannot be determined, and it cannot be established that the person who would
otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to
survive for the required period. This subsection does not apply where its application would result in the
escheat of an intestate estate.
(b) Disposal of Community Property. When a husband and wife have died, leaving community property, and
neither the husband nor wife survived the other by 120 hours, one-half of all community property shall be
distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife
had survived. The provisions of this subsection apply to proceeds of life or accident insurance which are
community property and become payable to the estate of either the husband or the wife, as well as to other
kinds of community property.
(c) Survival of Devisees or Beneficiaries. A devisee who does not survive the testator by 120 hours is
treated as if he predeceased the testator, unless the will of the decedent contains some language dealing
explicitly with simultaneous death or deaths in a common disaster, or requiring that the devisee survive
the testator or survive the testator for a stated period in order to take under the will. If property is so
disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon his
surviving another person, the beneficiary shall be deemed not to have survived unless he or she survives
the person by 120 hours. However, if any interest in property is given alternatively to one of two or more
beneficiaries, with the right of each to take being dependent upon his surviving the other or others, and
all shall die within a period of less than 120 hours, the property shall be divided into as many equal
portions as there are beneficiaries, and those portions shall be distributed respectively to those who
would have taken in the event that each beneficiary had survived.
(d) Joint Owners. If any real or personal property, including community property with a right of
survivorship, shall be so owned that one of two joint owners is entitled to the whole on the death of the
other, and neither survives the other by 120 hours, these assets shall be distributed one-half as if one joint
owner had survived and the other one-half as if the other joint owner had survived. If there are more than
two joint owners and all have died within a period of less than 120 hours, these assets shall be divided
into as many equal portions as there are joint owners and these portions shall be distributed respectively
to those who would have taken in the event that each joint owner survived.
(e) Insured and Beneficiary. When the insured and a beneficiary in a policy of life or accident insurance
have died within a period of less than 120 hours, the insured shall be deemed to have survived the
beneficiary for the purpose of determining the rights under the policy of the beneficiary or beneficiaries
as such. The provisions of this subsection shall not prevent the application of subsection (b) above to the
proceeds of life or accident insurance which are community property.
(f) Instruments Providing Different Disposition. When provision has been made in the case of wills, living
trusts, deeds, or contracts of insurance, or any other situation, for disposition of property different from
the provisions of this Section, this Section shall not apply.
Default survival period for wills, etc.
Why have these? to reflect typical decedent, who would
4. Opting Out: Negative Wills & Disinheritance p. 77-78
How it happens: T doesn’t want a particular person/persons taking under the will, yet doesn’t devise all of
his property.

Negative disinheritance
 Express provision in a will saying your property may not go to someone in particular, i.e. disinheriting a
child.

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 In most states you cannot do this, must devise all of your property to other people, i.e. your child, even if
you disinherited him, will inherit unless you devise all your prop. out. If there is partial intestacy, the
child will take.
 If your state does not allow, you may otherwise disinherit your kids by leaving all your property to your
spouse.
 UPC allows negative disinheritance. Barred child is treated as if he disclaimed his intestate share, which
means he is treated as having predeceased the decedent.

Texas and UPC Both Allow Disinheritance

 Negative disinheritance is allowed. T may expressly disinherit someone.

Texas Probate Code § 58. Interests Which May Pass Under a Will
(b) A person who makes a last will and testament may:
(1) disinherit an heir; and
(2) direct the disposition of property or an interest passing under the will or by intestacy.

Issues with Disinheritance—STATE WHY DISINHERITING AND WHAT TO DO WITH

PROPERTY
 Tate says not a good idea to disinherit one person without saying what you want to have happen to the
rest of your property; children not guaranteed anything in all states but LA. (LA can’t disinherit kids)

 A disinherited child might claim that the will is invalid. Juries sympathetic to children who have been
disinherited from their parent’s will.
 If jury thinks they’re unfairly disinherited, could strike down the will. Opens door to will contest and
person will assert that you were delusional/of unsound mind. Could suggest that you weren’t of sound
mind; and don’t want part of your estate to pass by intestacy anyway; want to devise to someone.
 If you DO disinherit, you don’t want to put language in there WHY you’re disinheriting (put it in a
separate document that will not be probated).
 Opens up to will contests
 If you disinherit a brother, his kids are still able to take
 Disinherited people are treated as predeceased

B. Succession Problems Regarding Children

Meaning/Ambiguities of “Children” pp. 83-94, 99-113; Exh. 4 (TPBC §§ 3(b) & (jj), 40, 42(a)-(b))
Texas Family Code § 162.507. Effect of Adoption
(a) The adopted adult is the son or daughter of the adoptive parents for all purposes.
(b) The adopted adult is entitled to inherit from and through the adopted adult's adoptive parents as though
the adopted adult were the biological child of the adoptive parents.
(c) The adopted adult may not inherit from or through the adult's biological parent. A biological parent may not
inherit from or through an adopted adult.
Texas Probate Code § 3. Definitions and Use of Terms
Except as otherwise provided by Chapter XIII of this Code, when used in this Code, unless otherwise
apparent from the context:
(b) "Child" includes an adopted child, whether adopted by any existing or former statutory procedure or by
acts of estoppel, but, unless expressly so stated herein, does not include a child who has no presumed
father.
(j) "Next of kin" includes an adopted child or his or her descendents and the adoptive parent of the adopted
child.

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Adoption
 UPC: §§ 2-113 & 2-114: Cannot inherit from adoptive parents.
 TX: Can inherit from natural and adoptive parents in any case (exception: adult adoption).
o Adopted children have the same rights to inherit from and through adoptive parents as
biological children, but there are variations as to whether they can also inherit from their
biological parents.
o Adopted children are part of a class gift unless intent to exclude them individually is in will.
 CL & Adoption: no recognition of adoption at CL, adoption law is completely
statutory
 UPC Rule about Adoption: once a child is adopted, he or she can only inherit from
their adoptive parents and any rights related to the natural parents are severed. Exception: may also
inherit from step-parent who adopts their step-child as their own b/c don’t want to prevent stepparents
from adopting their step-children and treating them as their own. UPC § 2-114
 Adult adoption: most states treat child and adult adoption the same
 UPC 2-705: if the adoptive parent is not the decedent, then the adopted person is not
considered an heir of the decedent by adoption unless the adopted person lived (either
before or after adoption) with the adoptive parent as a minor.
 The whole point of adult adoption cannot be to create an heir under a will.
 Can adopt your spouse – but that doesn’t mean they will be considered an heir in order
to get their parent-in-law’s estate.
 Sometimes gay men will adopt their gay lover to ensure that their estate will go to
them and not other heirs (who may challenge him leaving everything to his gay lover
in his will)

Texas Law on Adoption

 TPBC § 40 adopted children have same rights as other children
 Can inherit from biological AND adoptive parents. Doesn’t matter if step-parent or not, can always
inherit from both.
 Texas normally does not recognize adult adoption if it involves adoption of a spouse or lover.
(adopting adult children would probably be okay)

Texas Probate Code § 40. Inheritance by and From an Adopted Child

For purposes of inheritance under the laws of descent and distribution, an adopted child shall be regarded as
the child of the parent or parents by adoption, such adopted child and its descendants inheriting from and
through the parent or parents by adoption and their kin the same as if such child were the natural child of such
parent or parents by adoption, and such parent or parents by adoption and their kin inheriting from and
through such adopted child the same as if such child were the natural child of such parent or parents by
adoption. The natural parent or parents of such child and their kin shall not inherit from or through said child,
but, except as provided by § 162.507(c), Family Code, the child shall inherit from and through its natural
parent or parents. Nothing herein shall prevent any parent by adoption from disposing of his property by will
according to law. The presence of this Section specifically relating to the rights of adopted children shall in
no way diminish the rights of such children, under the laws of descent and distribution or otherwise, which
they acquire by virtue of their inclusion in the definition of "child" which is contained in this Code.

Family Code section quoted deals with adopted adults.

Class Hypothetical
The Mays and the Twigs both have daughters. Prior to leaving the hospital the children are mixed up.
Kimberly goes home with the Twigs, but is actually the Mays biological child. Kimberly eventually

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leaves the Twigs and lives with the Mays. Does Kimberly have a right to the Twigs estate and to the
Mays?
 The courts would probably find that there has been a constructive adoption. There was not an actual
adoption, but for the sake of equity, the court will probably find that a constructive adoption occurred.
Kimberly has a moral claim on the Mays, but it will be difficult to show an equitable adoption.
 In Texas, it does not matter whether there is an equitable adoption, because all Kimberly has to show is
that Mrs. May is her mother.
 The Mays have not openly treated their daughter as there own, so the Mays could not inherit from
Kimberly’s estate, so any estate would go to the State.
 In Texas, the law pertaining to adoption is the voluntary giving up of a child.

Hypothetical—Page 92
After T’s death, son (A) has wife and natural son (B); W remarries H and H later adopts B.
 If strict rule that children cannot inherit from or through natural parent. T would have INTENDED B to
inherit from him (make INTENT argument on the exam!!).
 In TX would have inherited from both natural and adoptive parent.

Hall v. Vallandingham
Court of Special Appeals of Maryland, 1988
75 Md. App. 187, 540 A.2d 1162
Facts: Earl Vallandingham died, survived by his wife, Elizabeth, and their four children. Elizabeth marries
Jim Killgore. Killgore adopted all four children. Earl’s brother, William, died childless, unmarried,
and intestate. His sole heirs were his surviving brothers, and his nieces and nephews. Earl’s children
believed they were entitled to distribution of the estate.
Result: An adopted child has no right to inherit from the estate of a natural parent who dies intestate, it
follows that the same child may not inherit through the natural parent by way of representation.
Held: An adopted child is no longer considered a child of either natural parent and loses on adoption all
rights of inheritance from his natural parents.
 Reasoning: Adopted children shouldn’t have superior rights to bio children of adoptive parents or from
bio parents.
 UPC vs. TPC on this:
o UPC 2-118, 2-119: Can adopt from natural parent if adopted by a step-parent. This cuts off the
other bio-parent. But does not allow adopted kid to inherit when a stranger or non-biological
parent adopts.
 In no case can the Bio Parents inherit from/through the adopted child. The brother would
not have been able to inherit from these kids if one had died intestate. Not fair, says Tate.
Can see why would want to cut off bio parents (why should they benefit if they chose to
cut off their kid?), but the parents’ relatives aren’t the one that put the kid up for adoption.
 Best interest of the child is not the policy in this class. We want to give affect to the
actual intent of the decedent.
o TPC §40: Allows adopted kid to inherit from both sets of parents—natural and adopted. Usually
no question that the kid can inherit from adoptive parents. But issue is usually can they inherit
from biological parents.
o In Texas: if a child is given up at birth (closed adoption) court puts something in order
terminating inheritance rights by bio-parents
o Texas: adult adoptions do not allow intestacy passing down, can only inherit from bio step-
parents (TFC §162.507) (drafting wills can solve this problem *need to nail down terminology of
heirs, etc.)
 Counter-arg: if in a will, it’s the intent of the testator

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Bio parents brought kid into world; so the child should have some moral claim on their property. Problem:
Children can be disinherited by biological parents. Not clear that there’s a moral claim on this property. If
looking at intent of decedent, not clear that the typical bio parent would want a child that they put up for adoption
to inherit from/through them.

What about domestic partnership (same sex) has envitro fert., other woman adopts the child
UPC: Not an adoption by spouse, so it’s not covered, baby loses right of inheritance from the genetic
mother, solutions: move to same-sex marriage state, or draft a will
Texas: not a problem because bio-parent can still inherit down

Minary (π) v. Citizens Fidelity Bank & Trust Co. (∆)

Court of Appeals of Kentucky, 1967
419 S.W.2d 340
Facts: Amelia Minary placed property in trust for eventual distribution “to [her] then-surviving heirs,”
which is her three sons. One of Amelia’s sons adopted his own wife, but the Bank refused to
distribute the trust property to the wife of Amelia’s heir.
Held: One who adopts a spouse or other adult cannot thereby make the adoptee an heir to an estate created
by an existing testamentary instrument executed by an ancestor of the adopter.
 In this case, policy basis of wanting to give effect to the settlor’s intent that Amelia meant for this to go
to descendants, not spouses of her descendants. Not clear what her intent would have been.
 “Stranger to the adoption Rule”: Can inherit from but not through an adoptive parent.
o Rule changed in 1953, now can inherit through adoptive parents.
 Should you be able to adopt your spouse? Seems incestuous.
 Amelia’s trust created in 1932. The trust will be interpreted by the laws in force at the time the last
beneficiary dies.
 Rule: Look to intent of donor.
 Lawyer who drafted the will did not anticipate the law changing.
 Provision of TX Fam. Code says that an adopted adult cannot inherit from that person’s biological
parents. No exception for adult adopted by a stepparent. Can lead to a bizarre adult.
 Fixing the will
o Change heirs at law to surviving descendants definition system, surviving descendants,
descendants shall include “natural heirs, and children adopted as minors, this definition
excludes any heirs adopted as adults”
 UPC 2-705(f)(2)- adoptee not considered

Children Born after Death of their father or outside of marriage.

 Posthumous child: child is conceived before, but born after her father’s death
 Uniform Parentage Act (UPA) Rule: Child born to a decedent’s wife w/in 300 days after a man’s
death is presumed to be his child and will inherit intestate or will be treated favorably under a will
 CL rule: Treated as if they were in being from time of conception (to help child inherit). If birth is
280 days (~10 months) or more after the claimed conception, cannot inherit from either parent, but
the burden moves to the newborn child to rebut the presumption (300 days in TX).
 Frozen embryos: this presumption rule does not apply to frozen embryos unless they are born w/in
300 days after the death
 UPA on posthumous conception: A posthumously conceived child (from frozen embryos or frozen
sperm) will not inherit under intestacy unless the decedent consents.
 RST on posthumous conception: more relaxed than UPA, posthumously conceived children will be
considered children for intestacy if they are from the same genetic material

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Texas: posthumous lineal descendants can inherit, §41(a) , not posthumous collateral relatives
Lineal descendant, kid of wife
Collateral relative, brother’s kid

Texas Probate Code § 41. Matters Affecting and Not Affecting the Right to Inherit
(a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal
descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the
death of the intestate.

Texas Probate Code § 42. Inheritance Rights of Children

(a) Maternal Inheritance. For the purpose of inheritance, a child is the child of his biological or adopted
mother, so that he and his issue shall inherit from his mother and from his maternal kindred, both
descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue.
(b) Paternal Inheritance. (1) For the purpose of inheritance, a child is the child of his biological father if the
child is born under circumstances described by § 160.201, Family Code, is adjudicated to be the child of the
father by court decree as provided by Chapter 160, Family Code, was adopted by his father, or if the father
executed an acknowledgment of paternity as provided by Subchapter D, Chapter 160, Family Code, or a like
statement properly executed in another jurisdiction, so that he and his issue shall inherit from his father and
from his paternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit
from him and his issue. A person claiming to be a biological child of the decedent, who is not otherwise
presumed to be a child of the decedent, or claiming inheritance through a biological child of the decedent,
who is not otherwise presumed to be a child of the decedent, may petition the probate court for a
determination of right of inheritance. If the court finds by clear and convincing evidence that the purported
father was the biological father of the child, the child is treated as any other child of the decedent for the
purpose of inheritance and he and his issue may inherit from his paternal kindred, both descendants,
ascendants, and collaterals in all degrees, and they may inherit from him and his issue. This section does not
permit inheritance by a purported father of a child, whether recognized or not, if the purported father's
parental rights have been terminated.

 Since 2007 Texas courts have the power to exhume a body to determine paternity.
 Posthumous lineal descendants can inherit, but does not treat collateral relatives as being in existence at
conception. (Opposite of CL rule). A posthumous child of a T will be included in a T’s will since he is a lineal
descendent.
o Reasoning for Rule: Don’t want administration to go on forever, so don’t want people
coming “out of the woodwork” saying that they’re entitled to inherit. Not as hard with lineal
descendants.
o Exception: this rule does not apply to collateral kin who are unborn at the time of T’s death.
i.e. a pregnant sister-in-law’s future baby will not inherit as his nephew from T’s will even if
she was pregnant at the time he was alive
 Under TX Uniform Parentage Act/TPBC § 42, a child is a child of his biological father if:
o Kid is adjudicated to be the child of the father by a crt decree
o Child was adopted by father
o Father executed an acknowledgement of paternity OR
o Man is presumed to be the father of a child (can be rebutted) if:
 He is married to the mother of the child and child is born during the marriage
 He is married to the mother of the child and child is born before the 301st day after
the date the marriage is terminated  follows 300-day rule unlike CL 280 day rule.
 He is married to the mother before the birth of he child

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 He is married to the mother of the child after the birth of the child and voluntarily
asserted his paternity of the child.
 A posthumously conceived child (from frozen embryos or frozen sperm) will not inherit under
intestacy unless they consent in writing – not just testimony about oral conversations. (TX Fam
Code)
 If you’re born of a woman, allowed to inherit if she dies intestate regardless of whether she was
married. If man married the mother after the child’s birth, had to voluntarily assert that he was the
father, promised in writing to support the child as his own or resided in the child’s household for first
two years of the child’s life and represented to others that he was the father, then child can inherit
from that person. If claim to be someone’s child, can sue during his life to prove this. After death,
can petition the probate court. Burden of proof is clear & convincing evidence.

Non Marital vs. Marital Children

 CL presumption: H of a mother is the child’s father for purposes of intestacy. No need to prove
paternity.
o Old rule: do not view evidence to the contrary, irrebuttable
o Modern rule: presumption can be rebutted by CCE, but, in most states, this presumption can
be rebutted only in an action by the child, mother, or person claiming to be the biological
father, NOT by the H himself
 Non-marital children: kids born of non-married parents, law used to be strict, but now more
forgiving.
o Total prohibitions on “bastards’” inheritance are unconst.

HYPOS
1: H dies intestate; 6 mos. later, child born to his widow, W. No question that it’s his child. If he had
Separate Property, what happens?
 Child is a lineal descendant, so will get H’s SP.
2: Hank and his brother, Frank, died together in accident. Six months later, Frank, Jr. born to F’s
widow. H had no spouse or descendants. Can Frank, Jr. inherit from Hank’s estate?
 Cannot inherit from uncle’s estate, just his father’s estate. A post death born child can inherit from a
parent (lineal descendent), but a collateral descendent (niece/nephew) cannot inherit unless born before
the death.

Woodward v. Commissioner of Social Security

Supreme Judicial Court of Massachusetts, 2002
435 Mass. 536, 760 N.E.2d 257
Facts: Woodward sought survivor benefits for herself and her children, who were conceived using her
deceased husband’s previously preserved semen.
Held: A child resulting from posthumous reproduction may enjoy the inheritance rights of “issue” under the
intestacy statute where there is a genetic relationship between the child and the decedent and the
decedent consented to posthumous conception and to the support of any resulting child.
“Issue” means all genetic descendants and both marital and non-marital descendents.

 Rule of Law: Prospective donor must clearly and unequivocally consent to (1) posthumous
reproduction AND (2) to the support of any resulting child. (Better if this is put in writing.)Burden
rests on surviving spouse or parent or the child’s other legal rep to prove the deceased parent consented
to both the reproduction and the support.
 Ct HOLDING: Says sometimes a child conceived posthumously can inherit. Balance state interests:
o Best interest of child: In best interest of the children to receive money from his estate; what
about children not conceived later? Potential conflict—two sets of kids. Court says that all
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children have by virtue of being children of their parents is the right to inherit something from
their parents’ estate. One argument: Not natural right, granted by the state (in the US, parents
can disinherit, so no inherent right.)
o State’s interest of orderly administration of estates: Administrative goals of the intestacy
statute are interfered with b/c
o Parent’s reproductive rights: Father might have had sperm frozen for reasons other than to
have children after his death. Maybe he only wanted to have kids during his lifetime if he
survived an operation; might not have wanted children to be born that he couldn’t have been
there to take care of them. Decedent should be able to control this.
 TX Fam. Code follows parentage act that says that father had to have consented in writing to the
posthumous conception of children.
o CA probate code says that the writing has to be witnessed. Also says that child has to be
conceived w/in 2 years of father’s death.
o Rest. of Property doesn’t require consent; says child has to be born w/in reasonable time in
circumstances indicating that the father would have approved, then the child can inherit from
the father even if no written consent.
Wilson ex rel. C.M.W. v. Estate of Williams (99 S.W.3d 640 (Tex. App. Waco 20003)
Assumption of husband’s paternity rebuttable
clear and convincing evidence to rebut
no statute of limitations
evidence in this case
didn’t have sexual relations with H during conception
did have sexual relations with Derrick
Texas probate code does not require biological link

This seems to follow testator’s intent, Ross v. Goldstein does not, policy-wise

2. Advancements to Children before Death of Parent pp. 114-16; Exh. 5

Texas Probate Code § 44. Advancements
(a) If a decedent dies intestate as to all or a portion of the decedent's estate, property the decedent gave
during the decedent's lifetime to a person who, on the date of the decedent's death, is the decedent's heir,
or property received by a decedent's heir under a nontestamentary transfer under Chapter XI of this code
is an advancement against the heir's intestate share only if:
(1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the
gift or nontestamentary transfer is an advancement; or
(2) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that
the gift or nontestamentary transfer is to be taken into account in computing the division and distribution
of the decedent's intestate estate.
(b) For purposes of Subsection (a) of this section, property that is advanced is valued at the time the heir
came into possession or enjoyment of the property or at the time of the decedent's death, whichever
occurs first.
(c) If the recipient of the property fails to survive the decedent, the property is not taken into account in
computing the division and distribution of the decedent's intestate estate, unless the decedent's
contemporaneous writing provides otherwise.

UPC § 2-109. Advancements.

(a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent gave
during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an
advancement against the heir's intestate share only if (i) the decedent declared in a contemporaneous

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writing or the heir acknowledged in writing that the gift is an advancement or (ii) the decedent's
contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be
taken into account in computing the division and distribution of the decedent's intestate estate.
(b) For purposes of subsection (a), property advanced is valued as of the time the heir came into possession
or enjoyment  of the property or as of the time of the decedent's death, whichever first occurs.
(c) If the recipient of the property fails to survive the decedent, the property is not taken into account in
computing the division and distribution of the decedent's intestate estate, unless the decedent's
contemporaneous writing provides otherwise.

Lifetime gifts, if advancements, are taken into account when distributing the estate of someone who dies
intestate. The amt is put into “hodge pot” with the rest of the estate. Divide that by the number of heirs, then
subtract the amt of the investment with the amt given to each heir.

 CL presumption: a child that received a lifetime gift before their parents’ death (an “advancement”) has
to prove it was not an advancement in order to keep the gift, child has the burden of proving it was an
absolute gift and not intended to count against their share of the estate (goal is equality and fairness)
Under CL, there’s an assumption that a large sum of cash is an advancement.
o Runs contrary to intent of decedent, usually. Often decedent gives money during life to poorer
children, so this is problematic when they take little or nothing under the will.
o Exceptions: disabled child, cultural norms like weddings, undergrad tuition are all considered
regular gifts or special circumstances and not advancements (grad school may be considered an
advancement)
 UPC: Unless put in writing by D that this was intended as an advancement, then it is not. Presumes that
life gifts are not advancements.
 TPC (44): Same as UPC. Unless in writing that it’s a transfer, then not an advancement. (1993) Before
that, TX followed CL. This new one appears to be retroactive, even though not explicit in the statute.
 Both statutes are the same.
 When gift recipient dies before D, then the advancement is ignored. Unless D said, “This is an
advancement and it is binding on all subsequent heirs.” (A had two children, D & E, and two siblings, B
& C. A’s father gave him an advancement, and then A died. When father dies, the advancement is not
taken into account.)
 Look at original value of what it was THEN (not now).
o §44(b) valued at date heir came into possession, or death of individual, whichever comes first.
o Change of value attributable to investment decisions made by grantee
 If adv is greater than what they would have gotten, it’s OK—don’t have to pay that money back.

Common Law UPC Texas

Pre-death gift presumed
to be an advancement.
 Tuition may be
considered an
advancement if it is for
grad school =
extraordinary gift
Pre-death gift is not an
advancement, unless
declared so in writing. §2-
109 p. 115
Same as Texas.
Pre-death gift is not an
advancement, unless declared
so in writing.
 SSame as UPC.

Hypothetical
Kids: A, B, C—50K to A during life; $250K estate
 $100K to B & C, $50K to A (All get same amount if you take into account the lifetime gifts that were
made.)

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Hypotheticals—Page 115
1. O has 2 kids, A & B. A owns a successful business. B is a single parent struggling to make ends
meet. O gives B gifts during O’s lifetime. O’s lifetime transfers to B are deemed to be advancements,
then B gets less than A when O dies.
Probably not what O wanted.
CL Doctrine of Advancements may run counter to intent here.
2. O has 2 kids to his first marriage and 6 kids from second marriage. Before death, gives land to
children by the first marriage. Are these advancements?
Maybe that belonged to their mother; so they should get the land and it should not have gone to children of
second wife; he would not have wanted it to be an advancement.
3. O has 3 kids; one daughter lives with O until O dies (A). Before O’s death, he deeds the farm to A,
says it’s not an advancement, but a gift for extraordinary services.
Policy: Want to encourage children to care for parents during their lives, so incentive argument.
4. O gave son B $20K. B needs $ to care for family. Same as 1.
5. O’s daughter C, goes to Yale Med, O pays tuition ($130K); is that an advancement?
Slippery slope argument. If we say tuition payments are advancements, then could look at other things like
birthday party expenses, cars, etc. Argument: Didn’t go to the child, went to the school.
Purpose of problems: CL doctrine of advancements doesn’t further the intent of the average decedent.

Hypothetical
 A got a House: $100K and $30K before his dad’s death.
 At death: estate is $500K; A’s house is $300K (this value doesn’t matter); A’s car at death is $1K (this value
doesn’t matter).
 Look at value when recipient came into possession or day of death (whichever came first).
 Each child gets $210K; since A already got house and car worth $130K, so A only gets $80K.
 Difficult evidentiary problem: Proving that a gift was made (if a piece of jewelry); person getting the gift
probably won’t testify that he got it.
 Policy: A should benefit from her business acumen or suffer from the lack thereof; this is the reason we look
at the value of the property when the recipient came into possession.
C. Disclaimer- Post-mortem estate planning pp. 132-35; Exh. 6
When someone formally declines to take the property that they are entitled to under inheritance laws (either
through intestacy or by will):
 Modern Rule: Treated as if they predeceased the decedent.
 Rationale for disclaiming: Tax reasons; judicial liens on property that you have or acquire; don’t like the
person who gave it (moral objections)
o Tax: If you take the property and it’s subject to state tax, and then you give to your children, have
to pay taxes 2x. If you disclaim, then drops directly to next generation and estate taxes only
levied once.
 Coming from grandparents still gets dinged by the generation-skipping tax
o Creditors: Don’t want them to get the property, then treated under Relation-Back doctrine as if
you never received it. Property goes directly to whomever would take it after you disclaim it.
o TPC: Other than charitable organizations or state agency has 9 months to file a disclaimer.
Have to execute a notarized memo and send copy to the personal representative or whoever holds
the property. Must be nine months to be qualified disclaimer for tax purposes.
 Except IRS can
 UPC: If an heir disclaims property, the court will treat the disclaimant as having pre-deceased the
decedent. (Treat the person disclaiming as if they are dead.) Only the particular disclaimed interest in

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disclaimed, not the entire estate. The decedent’s prop does not pass to the disclaimant at all and the
disclaimant may not transfer it.
 People may disclaim property to save on taxes or avoid creditors.
 Disclaimer statutes: B/c disclaimer relates back to the date of decedent’s death, ordinary creditors cannot
reach that person’s share.
 Disclaimed interest only the interest they would receive
 Slayer cases: If you slay the decedent, then you’re treated as having predeceased the decedent.
 If estate subject to tax, then good idea to have heir disclaim so that the descendent of the heir gets the gift
and only pays tax ONCE (not twice, like you would for the heir and then his child).
 Can ALSO avoid claims of creditors this way. “Relation-back” Doctrine—disclaimer relates back to the
date of the decedent’s death; like the heir never got the property.

Texas law on disclaimer

 Same as UPC. Disclaiming heir treats the disclaimant as having pre-deceased the decedent. Only the
property subject to the disclaimant passes, not the whole estate. TPBC §37(a)
 Lots of hoops to jump through, so if you do it, do it right

Problem p. 134
 O had A and B. A alive and has 4 kids. B deceased but had one kid. A disclaims.
If A had actually died, then under modern per stirpes (or per capita), would drop down and each of the
kids would get 20%. BUT the disclaimed interest doesn’t follow the per capita distribution. Not very
fair to let A do that because instead of having his kids share only half, they now share 80%. TX 37(a)
(c)Shall pass as if the person disclaiming had predeceased. Different from sec. 43 the provision on
representation says, “shall take” Based on that distinction, TX courts rule that C’s share untouched
(doesn’t change).

Drye v. United States

Supreme Court of the United States (1999)
528 U.S. 49
Facts: Son inherits from mother. Son owes HUGE tax bill. Son disclaims property so it will pass to his
daughter, and thus the creditor cannot seek the inheritance.
Held: The disclaiming heir inevitably exercises dominion over the property. He determined who will
receive the property, so thus the son had held the “property,” so it is subject to the tax lien.
 Woman who died should have written a will and said, “To R if he is solvent, and if not, then to T.” Or
she could have left everything to T with a request that T give some of it to R (her father) if he was
solvent.
 Discretionary Trust: trustee has the discretion to spend on T and R as he saw fit.
 Secret Trust: if T promised to support R, the gov may have an interest.
 Disclaiming for medicaid is tricky.
Texas Probate Code § 37A. Means of Evidencing Disclaimer or Renunciation of Property or Interest
Receivable From a Decedent
(a) Persons Who May Disclaim. Any person, or the guardian of an incapacitated person, the personal
representative of a deceased person, or the guardian ad litem of an unborn or unascertained person, with
prior court approval of the court having, or which would have, jurisdiction over such guardian, personal
representative, or guardian ad litem, or any independent executor of a deceased person, without prior
court approval, or an attorney in fact or agent appointed under a durable power of attorney authorizing
disclaimers that is executed by a principal, who may be entitled to receive any property as a beneficiary
and who intends to effect disclaimer irrevocably on or after September 1, 1977, of the whole or any part
of such property shall evidence same as herein provided.

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(b) Effective Date of Disclaimer. A disclaimer evidenced as provided by this section shall be effective as
of the death of decedent and shall relate back for all purposes to the death of the decedent and is not
subject to the claims of any creditor of the disclaimant.
(c) Effect of Disclaimer. Unless the decedent's will provides otherwise, the property subject to the
disclaimer shall pass as if the person disclaiming or on whose behalf a disclaimer is made had
predeceased the decedent and a future interest that would otherwise take effect in possession or
enjoyment after the termination of the estate or interest that is disclaimed takes effect as if the
disclaiming beneficiary had predeceased the decedent.
(d) Ineffective Disclaimer. Failure to comply with the provisions of this section shall render such
disclaimer ineffective except as an assignment of such property to those who would have received same
had the person attempting the disclaimer died prior to the decedent.
(e) Definitions. The term "property" as used in this section shall include all legal and equitable interests,
powers, and property, whether present or future, whether vested or contingent, and whether beneficial or
burdensome, in whole or in part. The term "disclaimer" as used in this section shall include
"renunciation." In this section "beneficiary" includes a person who would have been entitled, if the person
had not made a disclaimer, to receive property as a result of the death of another person by inheritance,
under a will, by an agreement between spouses for community property with a right of survivorship, by a
joint tenancy with a right of survivorship, or by any other survivorship agreement, account, or interest in
which the interest of the decedent passes to a surviving beneficiary, by an insurance, annuity, endowment,
employment, deferred compensation, or other contract or arrangement, or under a pension, profit sharing,
thrift, stock bonus, life insurance, survivor income, incentive, or other plan or program providing
retirement, welfare, or fringe benefits with respect to an employee or a self-employed individual.
(f) Subsequent Disclaimers. Nothing in this section shall be construed to preclude a subsequent disclaimer
by any person who shall be entitled to property as a result of a disclaimer.
(g) Form of Disclaimer. In the case of property receivable by a beneficiary, the disclaimer shall be
evidenced by a written memorandum, acknowledged before a notary public or other person authorized
to take acknowledgements of conveyances of real estate.
(h) Filing of Disclaimer. Unless the beneficiary is a charitable organization or governmental agency of the
state, a written memorandum of disclaimer disclaiming a present interest shall be filed not later than
nine months after the death of the decedent and a written memorandum of disclaimer disclaiming a
future interest may be filed not later than nine months after the event determining that the taker of the
property or interest is finally ascertained and his interest is indefeasibly vested. If the beneficiary is a
charitable organization or a governmental agency of the state, a written memorandum of disclaimer
disclaiming a present or future interest shall be filed not later than the first anniversary of the date the
beneficiary receives the notice required by Section 128A of this code, or the expiration of the six-month
period following the date the personal representative files the inventory, appraisement, and list of claims
due or owing to the estate, whichever occurs later. The written memorandum of disclaimer shall be filed
in the probate court in which the decedent's will has been probated or in which proceedings have been
commenced for the administration of the decedent's estate or which has before it an application for either
of the same; provided, however, if the administration of the decedent's estate is closed, or after the
expiration of one year following the date of the issuance of letters testamentary in an independent
administration, or if there has been no will of the decedent probated or filed for probate, or if no
administration of the decedent's estate has been commenced, or if no application for administration of the
decedent's estate has been filed, the written memorandum of disclaimer shall be filed with the county clerk
of the county of the decedent's residence, or, if the decedent is not a resident of this state but real property
or an interest therein located in this state is disclaimed, a written memorandum of disclaimer shall be filed
with the county clerk of the county in which such real property or interest therein is located, and recorded
by such county clerk in the deed records of that county.
(i) Notice of Disclaimer. Unless the beneficiary is a charitable organization or governmental agency of the
state, copies of any written memorandum of disclaimer shall be delivered in person to, or shall be mailed

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by registered or certified mail to and received by, the legal representative of the transferor of the interest
or the holder of legal title to the property to which the disclaimer relates not later than nine months after
the death of the decedent or, if the interest is a future interest, not later than nine months after the date the
person who will receive the property or interest is finally ascertained and the person's interest is
indefeasibly vested. If the beneficiary is a charitable organization or government agency of the state, the
notices required by this section shall be filed not later than the first anniversary of the date the
beneficiary receives the notice required by Section 128A of this code, or the expiration of the six-month
period following the date the personal representative files the inventory, appraisement, and list of claims
due or owing to the estate, whichever occurs later.
(j) Power to Provide for Disclaimer. Nothing herein shall prevent a person from providing in a will,
insurance policy, employee benefit agreement, or other instrument for the making of disclaimers by a
beneficiary of an interest receivable under that instrument and for the disposition of disclaimed property
in a manner different from the provisions hereof.
(k) Irrevocability of Disclaimer. Any disclaimer filed and served under this section shall be irrevocable.
(l)  Partial Disclaimer. Any person who may be entitled to receive any property as a beneficiary may
disclaim such property in whole or in part, including but not limited to specific powers of invasion,
powers of appointment, and fee estate in favor of life estates; and a partial disclaimer or renunciation, in
accordance with the provisions of this section, shall be effective whether the property so renounced or
disclaimed constitutes a portion of a single, aggregate gift or constitutes part or all of a separate,
independent gift; provided, however, that a partial disclaimer shall be effective only with respect to
property expressly described or referred to by category in such disclaimer; and provided further, that a
partial disclaimer of property which is subject to a burdensome interest created by the decedent's will
shall not be effective unless such property constitutes a gift which is separate and distinct from
undisclaimed gifts.
(m)
decedent's surviving spouse of a transfer by the decedent is not a disclaimer by the surviving spouse of all or
any part of any other transfer from the decedent to or for the benefit of the surviving spouse, regardless of
whether the property or interest that would have passed under the disclaimed transfer passes because of the
disclaimer to or for the benefit of the surviving spouse by the other transfer.
(n) Disclaimer After Acceptance. No disclaimer shall be effective after the acceptance of the property by
the beneficiary. For the purpose of this subsection, acceptance shall occur only if the person making
such disclaimer has previously taken possession or exercised dominion and control of such property in
the capacity of beneficiary.
(o) Interest in Trust Property. A beneficiary who accepts an interest in a trust is not considered to have a
direct or indirect interest in trust property that relates to a licensed or permitted business and over which
the beneficiary exercises no control. Direct or indirect beneficial ownership of not more than five
percent of any class of equity securities that is registered under the Securities Exchange Act of 1934 shall
not be deemed to be an ownership interest in the business of the issuer of such securities within the
meaning of any statute, pursuant thereto.

III. Wills: Formalities & Forms

A. Execution of Wills

1. Attested Wills

a. Function of Formalities 199-203

Requirements for Execution of a Valid Will (Law leans towards formalism)

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Wills Act Formalities (WAF)

1. Writing
2. Signature by testator
3. Attestation by witnesses

Four Functions of the Wills Act Formalities

1. Ritual/Cautionary function—Want people to know what they’re doing when they write a will; not just
speculating as to what will happen when they die, but deciding exactly what will happen. So, give them
a procedure to follow b/c a solemn/serious undertaking.
2. Evidentiary function—Cannot ask someone after they died whether their will was valid and if they
were of sound mind when they created it. Always require at LEAST a signature so that it can be
compared to other things that the testator had written. Also require witnesses who can testify to the
fact that the testator created it when he/she was of sound mind.
3. Protective function—People sometimes write wills on their deathbed. Don’t want to make it easy
for people to exercise influence over those people at the end of their lives. Require formal document
to protect the testator. Some argue that this is less relevant today, but Tate thinks that this is still
important b/c people still do this.
4. Channeling function—Standardization, uniformity in wills so that we don’t have to guess whether
something is a will, but see if the requirements have been satisfied. WAF are not the only way to
make it so that these functions are served. This is clearly a ritual (like when people beat their kids
when a contract formed/land sold so that the kids remember). Have to bring in 3rd party to witness
the event. Clear when property has been transferred b/c know that this ritual performed.

Reason for the formalities:

 One alternative: go to the probate court, fill out a form in the presence of a court official; downside:
people on their deathbeds couldn’t make a will.
 Make so that it’s valid not just in your jurisdiction, but in others, too.
 Differences between this and K’s,
o Inter vivos effect on K maker
o Evidentiary- testator is deceased and therefore can’t make the trip
o

Requirements in different Jurisdictions:

 UPC 2-502: 3 requirements
1. In writing
2. Signed by testator or by someone else at the testator’s direction in the testator’s presence.
3. Have to have at least 2 witnesses who have to sign within a reasonable time after witnessing
signing of the will OR an acknowledgement of the signature or of the will. (no min. age, but must
be competent; no presence required).
 TPC: 3 Requirements: §59
1. In writing (there’s an exception)
2. Signed by testator or by someone else by the T’s direction in his presence. (same as UPC)
3. Unless holographic (written completely in the testator's handwriting) will, has to be attested to by
at least 2 witnesses above the age of 14 who have to sign in the T’s presence. Must be 14 yrs or
older. Both must witness, but need not sign at the same time together.
 Difference between statutes:
o UPC doesn’t say who can or can’t be a witness; TPC does contain an age requirement.
 Another UPC provision says they have to be competent, but doesn’t specify age.
 Uses age for a proxy for competence in TX. Can argue that TX rule has its advantages.

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o Big One: UPC witnesses don’t have to sign in the T’s presence, just in a reasonable time. TPC,
have to sign in T’s presence.
 Under UPC, witnesses can witness the will AFTER the T dies (says so in Comment). As
long as they witness the signing and acknowledgement of the will, OK.
 There could be tampering at anytime…before or after Ws sign.
o Under UPC witnesses don’t have to sign in presence of each other. TX: Don’t have to sign in the
presence of the other witness. Each just independently can witness and sign.
o Neither statute specifies WHERE the witness needs to sign on the will—first page, top, bottom.
Not sure that it was read all the way through. Rules made to give some leeway to those who
don’t seek proper legal advice.
 Similarities:
o Neither requires that Ws actually see T sign the will—just have to see the T acknowledge the
will.
o Ws don’t have to sign in each other’s presence or even have to meet each other; under TPC have
to sign in T’s presence.
o Signature doesn’t have to be at the end of the will—theoretically could sign anywhere. (Not that
it’s a good idea.)

If you satisfy the Texas requirements and move to another state, the UPC will uphold your will even if you
do not fully comply with the UPC.

UPC Texas
 Writing  Writing
 Signed by T  Signed by T
 Signed by 2 people within a reasonable  Signed by 2 people while in the presence of the
time after witnessing the T sign the will OR testator (presence is required)
T acknowledged the will or the signature as
it being his will/signature (presence not
required)
 Someone else can sign for T if T cannot sign the
 Someone else can sign for T if T cannot will. (same)
sign the will. (same)  Age: Must be 14 years old.
 Age: No min. age, but must be competent  Ws do not have to be in presence of each and
 Ws do not have to be in presence of each don’t have to be at the foot of the will. (same)
other BUT must witness T’s signature or
acknowledge of the will. No requirement
for the signature to be at the foot of the
document. (same)

UPC: If will does not satisfy the WA requirements, can still probate a will through dispensing power. Also
applies to documents that revoke a will. Just need clear and convincing evidence (CCE).

When it’s clear that a document does not satisfy a requirement of the wills act, a TX ct will not look at
extrinsic evidence. E.g., if lacks a signature, a TX court would not entertain testimony that even though he
didn’t sign, he meant for it to be his will. BUT if there’s a valid question as to whether the wills act is
satisfied, they might look at extrinsic evidence—e.g., signed “Pat” instead of “Patrick”—could compare
signature to others to see if it was a complete signature.
 If the T did not intend for the document to be a will, could possibly introduce extrinsic evidence for that.
But if clearly the rules were not followed, then TX courts won’t look at extrinsic evidence.

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 UPC is different. Will always look at extrinsic evidence (?)

Problems p.208:
4a. T’s attorney takes T’s will to T’s home, where T signs the will and the attorney attests as a witness.
The attorney returns to her office with the will and has her secretary call T on the phone. By phone, T
requests that she be a witness to his will. Can you attest to a will over phone?
 TPC: Need “conscious presence” in TX—that’s not what the T actually saw, but have to be CAPABLE
of seeing it signed, even if you didn’t. Here, no way that T could have seen the sec’y sign the will.
 UPC: ?

6. A sick man had a will prepared. Under the signature line was typed his name, “Patrick Mangeri”.
He signed an X for his signature, because he was too shaky to right his name. Can the T sign with an
X?
 In most places, X qualifies as a signature IF it’s intended to be a signature. So yes, it’s OK.
 Can “Pat” be signed for “Patrick Mengari?” Yes IF it was intended as that. But if he’d stopped writing
his signature (changed his mind), then can’t do it.
Law hasn’t caught up to modern technology: Can a client video tape his will or make it on a computer?
Digitized with signature?
 If they want, they can execute a normal will and have a video tape, too.

Signature and witness issues

 Telephone Witness = not allowed
 Signing with an “X” = normally allowed (in Texas, don’t need name as signature)
 Nickname = allowed as signature if that what you intended as your signature
 Half-written name b/c of interruption = not allowed
 Typewritten signature = allowed in some states
 Electronic signature = not sure if this will be allowed – have to be sure there wasn’t tampering
 Rubberstamp signature = normally allowed
 Videotaped will in front of 2 Ws = still need signatures of the Ws, not sure if this would qualify as a
will
 Someone helps sign will since hands shaky = ok as long as it was at T’s direction – the person
helping must only be helping at the T’s request. This is not considered a signature if the person helps
w/o being asked to help.
 Notary acting as a W = in TX, notary can act as a W as long as they intend to act as a W (would still
need the 2nd required W though)
 Taking will down the hall for last W to sign = not allowed in Texas since not in presence of T

In re Groffman
High Court of Justice, England (1969)
 Facts: Widow challenged will since her H left everything to their two kids on the basis that they (the Ws)
were not in the same room at the same time. The T was not present with both witnesses (together at the
same time) when he acknowledged his signature.
 Holding: In England, have to be present at the same time. But, under the UPC and TPC, Ws do not have
to sign in each other’s presence.
 Rule of law: Under UPC, W just has to sign w/in a reasonable time and under the TPC, Ws just have to
sign in the presence of the T, not each other.

Stevens v. Casdorph
West Virginia Supreme Court of Appeals, 1998
203 W.Va. 450, 508 S.E.2d 610

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 Facts: T didn’t sign in front of the Ws, though they were in the next room, Ws didn’t technically see him
sign the will, nor did they sign in T’s presence
 TC: Said there was substantial compliance with the statute b/c everyone knew why T was at the bank.
Plus, no evidence of fraud, coercion, or undue influence. Held that will shouldn’t be voided even though
the technical aspects weren’t followed.
 Wade v. Wade- Both Ws sign but they did not see each other sign. One of them merely acknowledged
her signature. Court uses substantial compliance.
 This case is similar to the step-children case.
 Under UPC the Ws must see the testator sign but the testator does not have to see the Ws sign. UPC is
most lax.
 Holding: To be valid, a will must have been signed by the testator in the presence of two competent
witnesses who then must sign the will in the presence of the testator and each other.
 Dissent: “Slavishly worshiping form over substance.” Said majority creates a harsh and inequitable
result that goes against the spirit and intent of the law. B/c the challenge is only over compliance with
the statute and not incapacity, fraud, undue influence, unconsciously or unintentionally conveying
property. Goes against the drafters’ intent.

b.The WAF in Action: Self-Proving Affidavits, Interested Witnesses, & Purging Statutes
pp. 203-25

Texas says an “X” constitutes a signature if this was the testator's intent.

Purging Statutes
 Saves a will that would otherwise be invalid because one of the Witnesses received something in the will.
 Under the common law a will can be valid if the will is purges the interested witnesses share.
 If one or both Ws receive a gift, PS doesn’t invalidate the will, just invalidates the GIFTS of the W.
Interested witnesses are turned into disinterested ones.
 But still lets W get what he/she would have gotten had the T died intestate (keep their intestate share).
BUT do not get MORE than what T gave in the will…the lesser of the amt that W would have taken on
intestacy minus what they would take under the will.
 Doesn’t say that there has to be 2 disinterested persons sign, but it’s best so they have no stake in the
will.

Estate of Morea
George gets 1/8 of the tangible personal property. Kevin gets less under the will than under intestacy. There
is a third disinterested witness. The problem is that two of the witnesses are taking under the will. Only the
extra benefit is purged. Kevin is treated as a disinterested witness. Protective function is at the root of this
case because the court does not want the testator to be unduly influenced. There is no incentive for Kevin to
commit fraud.

Estate of Parsons
California Court of Appeal, First District, 1980
103 Cal.App.3d 384, 163 Cal.Rptr. 70
 Issue: Can a subscribing W who is also a beneficiary disclaim her interest after the T’s death?
o Statute: Probate Code § 51: gift to a W is void unless there are TWO other and disinterested Ws.
 Facts: 2 of the 3 Ws to a will were beneficiaries
 TC: argument that the W’s [who disclaimed] interest was invalid based on PC 51. On appeal, say that a
subsequent disclaimer (after T died) cannot turn her into a disinterested person b/c she was at first
interested.

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o Respondent Argues: Too technical and disregards T’s intent. Say that PC sec. 109.6 says that the
disclaimer (in every case) relates back for all purposes to the date of the creation of the interest
[when T dies].
o Under relation-back doctrine, as if W never got anything to begin with.
 Holding: Ct says that the BEFORE the will is offered for probate is when she should have disclaimed.
When the will was executed and attested, only the one disinterested W existed, so the gifts to the other 2
Ws were void by operation of law. So, when the W disclaimed, there was no interest to disclaim. A W
is interested or disinterested at the time the will was signed, not at the time of probate. Interests are
created upon death. PC 51 doesn’t care about T’s intent.
 Held: A subscribing witness to a will who is named in the will as a beneficiary does not become a
disinterested subscribing witness by filing a disclaimer of his interest after the testator’s death.
 Rule of law: judge whether a W is an interested witness at the time they were a W, not at the time T died
 UPC: § 2-505 Any competent person can be a W and the will isn’t invalid if an interested W signs it.
There is no prohibition of a witness receiving a bequest—imposes a rebuttable presumption that the
devise to an interested witness was “procured by duress, menace, fraud, or undue influence.”
 CLASS: When will is executed, the persons have no interest; only when the T dies is an interest created. The
statute’s purpose was to prevent fraud. This is more of a concern when the will is executed. Gift already invalid
by virtue of the statute before the interest is created.

 TPC 61—can still benefit if you were allowed something under intestacy.
Texas Probate Code § 61. Bequest to Witness
Should any person be a subscribing witness to a will, and also be a legatee or devisee therein, if the will
cannot be otherwise established, such bequest shall be void, and such witness shall be allowed and
compelled to appear and give his testimony in like manner as if no such bequest had been made. But, if in
such case the witness would have been entitled to a share of the estate of the testator had there been no will,
he shall be entitled to as much of such share as shall not exceed the value of the bequest to him in the will

 TPC 62: If you can get independent corroboration from anyone (like the lawyer), then gift not purged in
Texas.
Texas Probate Code § 62. Corroboration of Testimony of Interested Witness
In the situation covered by the preceding Section, the bequest to the subscribing witness shall not be void if
his testimony proving the will is corroborated by one or more disinterested and credible persons who testify
that the testimony of the subscribing witness is true and correct, and such subscribing witness shall not be
regarded as an incompetent or non-credible witness under § 59 of this Code.
`
UPC: If someone actually wants to commit fraud, they are not likely to sign the will as a witness
Class Hypothetical
Tate lives in California, which follows the Purging rule.
 In 2004, Tate rights a will that gives $1000 to Alfred (2 disinterested witnesses) and the rest to B
and C.
 In 2005, Tate rights an amendment giving $2000 to Alfred (Alfred is 1 of 2 witnesses) and the
rest to D and E.
 In 2007, Alfred’s intestate (without the will) share is $500.
What will Alfred get under the Purging rule?
Alfred would get the amount in the first will instead of the intestate amount. The reason this amount is given
is in order to encourage Alfred to accurately testify as to the 2005 Will, so other devisees get what they were
supposed to get under the 2005 Will.

 Relation-back doctrine; disclaimer relates back when the interest created (i.e., when decedent dies).
Because only had an expectancy of an interest, not an actual interest when the will was created.

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o Purpose of statute is to protect T from fraud or undue influence.

o Invalidation occurs when the will is executed (when the will is written).
o TX Purging Statute: Lets you save the gift if there is someone who can testify that this is true
and correct (the testimony of the interested witness). Not necessary that it be another subscribing
W to corroborate the testimony, can be someone else (even who did not witness the will; e.g., the
lawyer who was present).
 LESSON: Don’t let a witness who is getting something under the will sign as a witness.

Self-proving Affidavits
 Affidavit that attaches to a will so that the Ws’ testimony is not necessarily necessary to prove up the
will, this is good in case the Ws die first or cannot be located, there is a hostile W, or the W has a bad
memory.
 This affidavit should always be part of all the executing ceremony, so the will can be automatically
admitted to probate.
 A self-proving affidavit may be enforceable even if there are some mistakes as long as it is in substantial
compliance with the statute.
 Two types of self-proving affidavits (under both the T doesn’t have to sign in the presence of the signor.
But, the W have to witness the acknowledgment of the signature):
1. combined attestation clause and self-proving affidavit so that the T and the Ws (and the notary)
sign their names only once – one-step self-proving affidavit, one signature serves both functions
(one step)
2. UPC § 2-504(b) authorizes a self-proving affidavit to be affixed to a will already signed and
attested, an affidavit that must be signed by the T and Ws in front of a notary after the T has
signed the will and the Ws have signed the attestation clause. (two-step/recommended process)
 permitted in more states since it is a combined attestation clause and self-proving
affidavit. Texas uses the two-step version. Remember to get everyone to sign it twice.
Witnesses, testator, and notary.

Texas Probate Code § 59. Requisites of a Will

(a) Every last will and testament, except where otherwise provided by law, shall be in writing and signed by
the testator in person or by another person for him by his direction and in his presence, and shall, if not
wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of
fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the
testator. Such a will or testament may, at the time of its execution or at any subsequent date during the
lifetime of the testator and the witnesses, be made self-proved, and the testimony of the witnesses in the
probate thereof may be made unnecessary, by the affidavits of the testator and the attesting witnesses,
made before an officer authorized to administer oaths under the laws of this State. Provided that nothing
shall require an affidavit or certificate of any testator or testatrix as a prerequisite to self-proof of a will or
testament other than the certificate set out below. The affidavits shall be evidenced by a certificate, with
official seal affixed, of such officer attached or annexed to such will or testament in form and contents
substantially as follows:
THE STATE OF TEXAS
COUNTY OF ________________

Before me, the undersigned authority, on this day personally appeared

_______________, _______________, and _______________, known to me to be the
testator and the witnesses, respectively, whose names are subscribed to the annexed or
foregoing instrument in their respective capacities, and, all of said persons being by me
duly sworn, the said _______________, testator, declared to me and to the said
witnesses in my presence that said instrument is his last will and testament, and that he

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had willingly made and executed it as his free act and deed; and the said witnesses,
each on his oath stated to me, in the presence and hearing of the said testator, that the
said testator had declared to them that said instrument is his last will and testament,
and that he executed same as such and wanted each of them to sign it as a witness;
and upon their oaths each witness stated further that they did sign the same as
witnesses in the presence of the said testator and at his request; that he was at that
time eighteen years of age or over (or being under such age, was or had been lawfully
married, or was then a member of the armed forces of the United States or of an
auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of
said witnesses was then at least fourteen years of age.

SIGNATURES AND NOTARY INFORMATION

(b) An affidavit in form and content substantially as provided by Subsection (a) of this section is a "self-
proving affidavit." A will with a self-proving affidavit subscribed and sworn to by the testator and
witnesses attached or annexed to the will is a "self-proved will." Substantial compliance with the form of
such affidavit shall suffice to cause the will to be self-proved. For this purpose, an affidavit that is
subscribed and acknowledged by the testator and subscribed and sworn to by the witnesses would suffice
as being in substantial compliance. A signature on a self-proving affidavit is considered a signature to
the will if necessary to prove that the will was signed by the testator or witnesses, or both, but in that
case, the will may not be considered a self-proved will.
(c) A self-proved will may be admitted to probate without the testimony of any subscribing witness, but
otherwise it shall be treated no differently than a will not self-proved. In particular and without limiting
the generality of the foregoing, a self-proved will may be contested, or revoked or amended by a codicil
in exactly the same fashion as a will not self-proved.

Texas Probate Code § 84. Proof of Written Will Produced in Court

(a) Self-Proved Will. If a will is self-proved as provided in this Code, no further proof of its execution with
the formalities and solemnities and under the circumstances required to make it a valid will shall be
necessary.
(b) Attested Written Will. If not self-proved as provided in this Code, an attested written will produced in court
may be proved:
(1) By the sworn testimony or affidavit of one or more of the subscribing witnesses thereto, taken in
open court.
(2) If all the witnesses are non-residents of the county, or those who are residents are unable to attend
court, by the sworn testimony of any one or more of them by deposition, either written or oral, taken in
the same manner and under the same rules as depositions taken in other civil actions; or, if no
opposition in writing to such will is filed on or before the date set for hearing thereon, then by the sworn
testimony or affidavit of two witnesses taken in open court, or by deposition in the manner provided
herein, to the signature or the handwriting evidenced thereby of one or more of the attesting witnesses,
or of the testator, if he signed the will; or, if it be shown under oath to the satisfaction of the court that,
diligent search having been made, only one witness can be found who can make the required proof, then
by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner
provided herein, to such signatures or handwriting.
(3) If none of the witnesses is living, or if all of such witnesses are members of the armed forces of the
United States of America or of any auxiliary thereof, or of the armed forces reserve of the United States
of America or of any auxiliary thereof, or of the Maritime Service, and are beyond the jurisdiction of the
court, by two witnesses to the handwriting of one or both of the subscribing witnesses thereto, or of the
testator, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open
court, or by deposition, either written or oral, taken in the same manner and under the same rules as
depositions taken in other civil actions; or, if it be shown under oath to the satisfaction of the court that,

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diligent search having been made, only one witness can be found who can make the required proof, then
by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner
provided herein, to such signatures or handwriting.

 The affidavit does not have to be on a separate sheet of paper, but must be a separate writing
 TPC § 59(b): as long as the signature by the Ws are on the self-proving affidavit, the affidavit is
sufficient to probate the will. But, if a signature is used for the purpose of proving that the T signed the
will, then it may not be considered a self-proved will again.
 TPBC § 59(c): self-proved will may be admitted to probate without testimony of any subscribing W –
otherwise it’s just like a regular will (can add a codicil)—TX and UPC have this in common.
o Enables you to skip over difficult problems of proof if one of the Ws cannot go to court or they
are deceased.
o In order to prove the will, need some testimony.
 TPC § 84(b)(1): Can bring in either W to testify in ct that the will was duly executed.
o If neither W can come, can take a deposition; or, if no opposition, can bring Ws to testify that the
signature is in the decedent’s handwriting.
o Unless a W deceased or serving in armed forces, then have to take a depo.
o If the W is deceased or in the armed forces, can bring in testimony to show that it is in the W’s
handwriting. This is to be avoided if possible.
 § 59(a): Form that the SPA is supposed to take. The Ws and T appear before an official, usu. a notary,
and T acknowledges his will.
What happens if the SPA doesn’t take this form, but substantially complies, is that OK?
 § 59(b): OK to substantially comply. But don’t test the limits of the statute.

 Two cases of switched wills: Question of whether they can admit the signed will to probate, even though
its provisions are different from what was meant.
o Pavlinko: did not allow will to be probated
o Snide: allowed extrinsic evidence to validate the will.
o Why give effect to someone’s will when it seems that their intent is not reflected in it because they
did not even read it?
 POLICY ARGS: Often, people don’t read documents given to them. Also, this couple
had discussed the contents of the wills with their attorney, so they just assumed that what
was discussed had been put in the will. Fact that they did nothing shows that they thought
the will was valid.

In re Pavlinko’s Estate
Supreme Court of Pennsylvania, 1959
394 Pa. 564, 148 A.2d 528
 Wife of T died 6 years before her husband (T); W and T inadvertently signed each other wills, instead of
their own will. The residuary legatee (?) was Hellen (T)’s brother.
 Procedure: Probate was refused by the register of Wills; then the Orphans court affirmed.
 Facts: By mistake, each signed the wrong will (the will of each other); sec’y didn’t speak the language,
so there was no conversation. When wife died, no probate, so used as exhibit here.
 Held: A court may not rewrite a clear and unambiguous will even for the purpose of implementing the
obvious intentions of the testator.
 Dissent: Didn’t matter who signed what b/c the wills were “complementary of each other.” Wife left
property to H, H left to W. Also had the same residuary legatee. Although some provisions not effective
b/c of the mistake, that shouldn’t bar the legality and validity of the residuary clause, which is complete
(and why this shouldn’t matter).

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 Class notes: Usually courts apply statutes strictly like this. But could say that it’s immoral to let certain
people take under intestacy, when the T clearly wanted that property to go to someone else. Would it be
a good idea to create a constructive trust and have them hold the estate for the brother-in-law? Maybe.

In re Snide
Court of Appeals of New York, 1981
52 N.Y.2D 193, 418 N.E.2d 656, 437 N.Y.S.2d 63
 Turns out the opposite way that Pavlinko did.
 “This is a case of genuine mistake.”
 Child’s guardian ad litem argues that H lacked the required intent b/c never intended to execute the doc
that he actually signed.
 Court says, everything in each will was the same except names. What was intended is very clear.
Adhered to the requirements—had capacity, both executed w/in the statute, same witnesses, same
execution ceremony. No danger of fraud. “Decline this unjust course.”
 Class notes: Must have assumed that they had a valid will b/c neither took steps to correct. Suggestion
for curing this situation: Should appoint a conservator for T (someone who has power to manage T’s
property) who can make a trust for T. Even though the conservator cannot make a will, he/she can make
a trust.
o Shows that courts still allow wills to be probated even when rules not strictly complied with.
o If the parties had read the wills, why didn’t they catch the mistake? So there is a question as to
whether the will is the intent of the parties?
o Similar to DOCTRINE OF SUBSTANTIAL COMPLIANCE

c. Curative Doctrines pp. 225-35

Dispensing Power Doctrine / UPC § 2-503—NOT SUBSTANTIAL COMPLIANCE
 Harmless Error Rule under the UPC: If there is Clear and Convincing Evidence, that a document is
intended to be a will – then the courts can use their “dispensing power” to validate the document. Gives
courts power to dispense with formalities.
 This means that the UPC would allow holographic wills in every state since it essentially abolishes the
attestation requirement.
 RST 3rd: should not examine each formality in isolation

Substantial Compliance Doctrine: Will can still be probated if the T substantially complied.
 If there is Clear and Convincing Evidence that the purposes of formalities of the (1) cautionary, (2)
evidentiary, (3) protective, and (4) channeling functions are served – then a court can validate a will
despite a defective execution.
 This was the 1969 UPC approach – changed to dispensing power (above) in 1990.

Texas Probate Code § 59. Requisites of a Will

(b)An affidavit in form and content substantially as provided by Subsection (a) of this section is a "self-
proving affidavit." A will with a self-proving affidavit subscribed and sworn to by the testator and
witnesses attached or annexed to the will is a "self-proved will." Substantial compliance with the form of
such affidavit shall suffice to cause the will to be self-proved. For this purpose, an affidavit that is
subscribed and acknowledged by the testator and subscribed and sworn to by the witnesses would suffice
as being in substantial compliance. A signature on a self-proving affidavit is considered a signature to
the will if necessary to prove that the will was signed by the testator or witnesses, or both, but in that
case, the will may not be considered a self-proved will.

No Curative Doctrine in Texas for a will. Must be strictly complied with to have a valid will.

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Exam tip: you don’t start with this statute, you start with
1. Holographic will
2. Other doctrines
3. THEN Curative doctrines (because of heightened evidentiary standards) and
not at all in Texas

 TX does NOT use the substantial compliance test above, but, by statute, a signature on a self-proving
affidavit can count as a signature on the will.
o TX has substantial compliance with the self-proving affidavit only
 There is NOT a dispensing-power statute in Texas.
 Texas probably wouldn’t allow a will that was witnessed by just one W since that does not comply with
the purpose of formalities.
Should Texas enact a dispensing-power statute?
 DP takes the focus off the WA, makes us look at the question, “What was this intended to be?”
 Maybe correct application of this power would be some kind of witnessing of the will (or witness T
talking about his/her intent). Needs to be interpreted more broadly.
 Case-by-Case basis? Difficult to apply.

 Curative Doctrines have been applied to salvage wills when one of the requirements of the Wills Act is
not satisfied, if something wrong with the execution of the will.
o Ranney: Applied substantial compliance doctrine; if the will substantially complies with the
Wills Act, then can be admitted to probate. Lawyers used the two-step version when they thought
they were using the one-step. The witnesses only signed once instead of twice. Blended family
with a disgruntled widow. The widow wants the land in fee simple instead of a life estate. You
need attestation and affidavit. This court favors substance over form.
o Boren v. Boren amended sec. 59(b) so now can be admitted to probate so that a signature on the
affidavit is treated like the signature on the will (but then lose the affidavit signature).
o TPC: does not follow SCD.
o Hall: Dispensing Power Doctrine. Att’y told the Ts that he could notarize the will for them
(didn’t have 2 witnesses). Issue: Could it be admitted to probate? Court said yes, under the DPD.
If clear and convincing evidence that it was meant to be a will, it can be admitted to probate, even
if it didn’t comply with the Wills Act.
 Tate is hesitant to admit a draft to probate. Thinks there was enough evidence that it was
intended to be a will in the meantime.
 Judge who came to talk to us would not have probated this will.

In re Will of Ranney
Supreme Court of New Jersey, 1991
124 N.J. 1, 589 A.2d 1339
 Facts: Russell (H) gave Betty (W) life estate in the apt bldg; W contested the will b/c it failed to comply
literally with the statute’s formalities. will is signed by T, there is a self-proving affidavit signed by T
and 2 Ws, but will itself is not signed by the Ws (there was only a part for them to sign on the affidavit,
not the actual will)
 Attestation Clause: Ws’ statements that they witnessed T sign the will (in the present tense). “We are
attesting to this will.” Similar to the SPA: If the W isn’t around to testify, have prima facie evidence that
this occurred.”
o NJ: Has 2 separate forms for SPA.
 CA: Said that the affidavit was a part of the will, so the W’s signatures on the aff. Acted like signatures
on the will. This ct disagrees and says that it did not literally comply, but rather, substantially complied.

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 Self-Proving affidavit vs. attestation clause

o SPA: sworn statements by eyewitnesses that the will was duly executed. Does everything an AC
does, plus has the further effect of permitting probate without requiring the appearance of either
witness.
o AC: facilitate probate by providing prima facie evidence that the T voluntarily signed in the
presence of a W. Permits the probate of a will when the W forgets about that or dies before T.
o Differences:
 AC: the attestant expresses the present intent to act as a W, but in the affidavit, the affiant
swears that the will has already been witnessed.
 Holding: Affirmed but also remanded. Substantial compliance test should be used to cure the inequity
cause by the “harsh and relentless formalism” of will law. Court sent back to probate to decide if the will
substantially complied with the formalities / statutory requirements.
 Class Notes: Lower court said that the signatures on the SPA literally satisfied. This court disagrees, but
says that OK b/c substantially complies.
o Question: What did the Ws intend?
o How would this case have been decided in TX? TX doesn’t have substantial compliance. Boren
v. Boren, on similar facts, Ws had signed SPA, but not the will itself, but in 1991, leg. amended
sec. 59(b) and said that signature on the SPA can count as a signature on the will if necessary to
prove the will. In that case, the will is not considered self-proved. Even though TX doesn’t have
the subst’l compliance, there is a doctrine that says that they will treat this as a signature on the
will.

Estate of Iverson
The will contest is brought by the children of his first marriage. Iverson gave all his property to his second
ex-wife. Nobody signed this will other than the notary. The court says the will substantially complies with
the statue. The trial court probated the will. The appeals court said substantial compliance is only for self-
proving affidavits and not attestation. The will is invalid. Case reversed. The court wants the legislature to
make the law more specific so they do not have to guess. The legislature actually may agree with the court
or may not be sufficiently motivated to change this provision.

In the Estate of Hall

Supreme Court of Montana, 2002
310 Mont. 486, 51 P.3d 1134
 Facts: Lawyer drafted a joint will (not a mutual will, which is a separate will for each that is identical).
They each had a will that they were revoking with the joint will. So, they marked up their original will,
and lawyer was going to notarized the will (what he meant was that he was witnessing the will).
Daughter from previous marriage challenges the will. Will was properly signed, but the lawyer was
acting as a notary and not a W. Judge lets will be probated b/c clear that it was meant to be their will.
 Question: How can this be a last will when the couple intended to sign a new will once the atty fixed this
one up (re-typed with the changes). The Old Will will stand until the next will is executed. Did the court
correctly apply its dispensing power in this case? The basis for probating the will was the testimony of
the wife who intended the will to stand even though it wasn’t the final version. But wife is an interested
party; she will take under the will; but on the other hand, unfair to not probate when T meant for it to be
his will.
o In Texas if the will is not witnessed, it is no good. Should TX have a dispensing power? Texas
relies more on the evidentiary function to protect against fraud. Ill-advised testator whose will
does not comply with will requirements wants the harmless error doctrine and dispensing power.
The UPC protects the ill-advised. The well-advised person wants a bright line rule, so there is
predictability.
o This is before the UPC allowed wills to simply be notarized.
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 Holding: It is irrelevant that a document offered for probate as a will has not been properly witnessed
where clear and convincing evidence establishes the testator’s intent that the document be the testator’s
will.
 Estate of Teal- The court finds that the notary served as a witness because she asked him a lot of
questions about his intent. The notary testified she was only signing as a notary. The trial court admitted
the will to probate. Under UPC, there would be no problem in this case (notarized = witness). Tate
thinks having something notarized is pretty much the same as having two witnesses. Doesn’t matter if
you’re a notary or not, but a notary not intending to be a witness doesn’t sign as a witness.
o self-proving affidavit wouldn’t help

2. Holographic (whole and written) Wills

Texas Probate Code § 60. Exception Pertaining to Holographic Wills
Where the will is written wholly in the handwriting of the testator, the attestation of the subscribing
witnesses may be dispensed with. Such a will may be made self-proved at any time during the testator's
lifetime by the attachment or annexation thereto of an affidavit by the testator to the effect that the
instrument is his last will; that he was at least eighteen years of age when he executed it (or, if under such
age, was or had been lawfully married, or was then a member of the armed forces of the United States or of
an auxiliary thereof or of the Maritime Service); that he was of sound mind; and that he has not revoked
such instrument.

Texas Probate Code § 84. Proof of Written Will Produced in Court

(c) Holographic Will. If not self-proved as provided in this Code, a will wholly in the handwriting of the
testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony
or affidavit taken in open court, or, if such witnesses are non-residents of the county or are residents who
are unable to attend court, by deposition, either written or oral, taken in the same manner and under the
same rules as depositions taken in other civil actions.
A holographic will is in the T’s handwriting and signed by T. (Goes back to ancient Roman law: allow
soldiers to carve their will when heading off to war.)
 Holographic wills dispense with the Wills Act requirements when the will is entirely in T’s handwriting.
 Holographic will: A will that does not have to be witnessed if written in own handwriting and signed.
 About ½ the states recognize them, including TX.
 These wills cause a lot of litigation – client has more of a safe harbor when follow WA.

Why Have This Exception?

 Evidentiary Function of the wills act
 But other wills act functions not served: (1) procedure/ritual; (2) Freely given; (3) Channeling function
 Have this rule for the uneducated persons who want to make a will but do not have the knowledge or
advise needed

Pre-Printed Forms—Three Different Rules

 First generation – must be entirely written, [signed, and dated] in T’s handwriting (every single word
must be in handwriting, no fill-in-the-blank forms). (Texas Rule—Follows Surplusage Theory—Ignore
whatever is not written in Testator’s handwriting)
 Second generation statutes – (1969 UPC) – only main provisions have to be in own handwriting. Fill-in-
the-blank forms probably do not fall into this category, unless you can scrap the pre-printed stuff and still
have a valid will w/ what is left in the T’s handwriting.
 Third generation statutes – (1990 UPC) – only material portions have to be in own handwriting, extrinsic
evidence is allowed. Fill-in-the-blank forms likely fall in this category.
 Difference between 2-3, construed too strictly

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Texas Law: disregard unprinted words, but doesn’t make it invalid

Surplusage Doctrine: Extraneous printed words not necessary to complete the will do not keep the will
from probate b/c all the necessary will stuff is handwritten. If you give effect to the printed word, or if you
do not, it is of no consequence so it doesn’t matter how you treat these things.

If Last will and testament are typed, look to context of the language

Kimmel’s Estate
Supreme Court of Pennsylvania, 1924
278 Pa. 435, 123 A. 405
 “Keep this letter, lock it up, it may help you out.”
o May indicate that this is a letter, not a will. Is it testamentary?
 Signed simply, “Father.” – Court says that this was always used in letters such as these.
o Makes no sense to Tate b/c other letters that are not wills are signed like this. If he signed other
formal documents as Father, this evidence makes more sense.
 Is there testamentary intent?
o The father is contemplating his death. He is not just creating a trust. He disposes of his estate.
o He mentions “important papers.” Maybe the papers are his actual will, and this letter is ismply a
summary of his wishes.
 Held: An informal document evidencing intent of a conditional gift and an intent to execute may serve
as a testamentary document.
 Policies behind Wills Act: (HOW TO ANALYZE ON EXAM)
1. Ritual Function: Testator knows that he’s creating a will. Was this function served by this letter?
Not forcing the reader to recognize that this is a will. No ritual in this letter; just a casual
document.
2. Evidentiary Function: This serves the evidentiary function because the entire document is in his
hardwriting. This function was served by this letter. ONLY function clearly served by the letter.
3. Protective Function: Don’t know the circumstances surrounding the writing of the letter. When
there are no disinterested people watching the will being created, hard to serve this function.
4. Channeling Function: This letter is very informal, not standardized. We want everything to look
the same.

Conditional Wills
In Texas conditional wills still stand even if the person does not die as specifically stated.

If you do something idiosyncratic when writing your will you are opening up the door to litigation.

Estate v. Gonzalez – testator made a will before he went to Florida. He fills in a form and signs it. Then, he
decides to re-write the will, but he gets the witnesses to sign the blank form.
In Texas this will is not properly attested by two witnesses, but it could be considered a holographic will.
There is no harmless error rule here.

Cases (AZ cases; like TX)

1. Mulkins: AZ ct applies 1st gen approach, but says that it’s a will. Property clearly going to X.
2. Johnson: Will says “To John, 1/8 of my estate….” Here, the court says not a will b/c the handwritten
portion does not clearly establish testamentary intent.

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3. Muder: “My wife…property…all other earthly possessions….” Ct says this is enough to establish
testamentary intent.
Are these cases consistent?
 Tate says no. Thinks that Johnson should be a will if Kuralt is considered a will.
 Just look at handwriting says, not everything (including pre-printed language)
1st generation (TEXAS)
Entirely wirtten, signed, and dated
2nd generation
signature and material provisions in handwriting
3rd generation (UPC)
signature and material portions (and you can look to extrinsic evidence. If the material portions are not in
the testators handwriting, use the harmless error rule.

Estate of Mulkins
496 P.2d 605 (Ariz. App. 1972)
Held:Texas court. Will should be entirely in the T’s handwriting, signed and dated. Surplusage theory – if
the portion in testator’s handwriting is sufficient to constitute a will, other printed material is treated as
surplusage.

Estate of Johnson
630 P.2d 1039 (Ariz. 1981)
Facts: Essentially same facts as the Kuralt case above, but different outcome
Law: Applying 1969 UPC
Held: Court did not find a holographic will, lacks testamentary intent

Estate of Muder
865 P.2d 997 (Ariz. 1988)
Facts: Form will, but the testator stated specifically what he gave to his wife.
Held: No question of testator’s intent, so the will is upheld.
Tate: Does not understand why Johnson is not, when Mulkins and Muder are. He thinks there is a better
argument for Johnson, than Muder.

In re Estate of Kuralt
Supreme Court of Montana, 2000
303 Mont. 335, 15 P.3d 931
 Facts: Wrote letter to mistress promising her property, mentioned talking to an attorney, formal will
drafted that did not cover the real property
 Holding: Court found a holographic codicil here, letter was a codicil (addition) to the formal will b/c
it made a specific bequest of the property and did not purport to bequeath the entirety of the estate.
 Tate thinks this case was decided wrongly. He believes that this was a misapplication of the
UPC doctrine since the testamentary intent is missing. The letter just says there’s an intent to
talk to an atty.

Hypothetical—Page 250-51
Estate of Wong
 Facts: “will” said “All Tai-Kin Wong’s  Xi Zhao (his girlfriend) (signed & dated by Tai-King
Wong)
 Holding: an arrow does not satisfy the testamentary intent or handwritten will requirement. (But
some jurisdictions will allow extrinsic evidence, like a conversation, to prove T’s intent.)

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Estate of Esther
Facts: estate was left to kids via a note to an atty asking him to make a will, the letter said estate “is to be
left” rather than “leave my estate to” – words of future
 Holding: Court said this was not a holographic will since the attorney didn’t treat it like a will – it was
not put in a safe place, was stapled, right words were not used.
 Malpractice claim: This attorney should be sued for malpractice. He should have drafted the will sooner
– six months is not a reasonable time to take to draft a person’s will.

 Only recognized in about 20 states and in extremely limited circumstances.

 Usually oral wills are only allowed in “the last sickness” and must be uttered before three people.
 A will is not finalized technically until a T dies. A will speaks at death – it can be changed, revoked or
replaced entirely before death.

Texas law
 TPBC: must be in “last sickness” and must be proved by three Ws if over $30 and can only be for
personal property TPBC 64, 65, 59
 Cannot be used to devise real prop! (bar question)
 If want to devise real prop on your deathbed, write a will. If don’t have strength, have a will typed up
and have someone else sign for him at his direction if he cannot sign for himself.

3. Nuncupative (Oral) Wills pp. 202, n.2

 Minority of states permit under VERY limited circumstances
 The will must be uttered before three persons, who must reduce the declaration to writing within a
specified period
 Last Sickness—devise personal property of small value
 Military personnel are sometimes granted privilege of making oral wills
B. Revocation of Wills

1. By Writing or Physical Act 251-59, 218-19; Exh. 9

Two ways to revoke a will
1. Create a subsequent writing that revokes all or part of the will OR
2. Perform a revocatory act on the will, such as physically destroying or cancelling a will
Codicils
 Supplement or addition to a will that doesn’t replace a will, but supplements it. It does not necessarily
dispose of the entire estate, but modifying, explaining, or otherwise qualifying the will in some way.
When admitted to probate, a codicil become part of the will
 Rule about revoking codicils: If a will is revoked and has codicils, then all the codicils are revoked.
Revoking a codicil, though, does not revoke a will! (UPC – look to intent of T, see if he intended to keep
the original will and just destroy the codicil)
 Look to see if the subsequent writing makes a complete disposition of the testator’s estate when deciding
if a writing is a non-revoking codicil or if it is a revoking codicil.

Will cannot be found

 If the will cannot be found and it was in the T’s possession, then the presumption is that the will is
revoked by the T. But, this can be rebutted by the party who wants the will enforced by evidence that
there is some other reason the will is missing.

Probating a will without the original

 A will can still be admitted to probate if its contents are proved by a copy, absent a statute that bars such.

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 If for example a will is lost, destroyed without consent, or not in compliance with a revocation statute, a
will can still be probated with a copy (unless law says otherwise).
 Don’t have multiple originals  Should only execute one will and all copies should be clearly labeled
copy. If there are multiple originals, there can be lots of litigation. But, there is a presumption that a
person is revoking all other originals when there are multiple original wills.

Uniform Probate Code (1990)

§2-507. Revocation by Writing or by Act.
(a) A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2)
for the PURPOSE of revoking the will or part or if another individual performed the act in the
testator’s conscious presence and by the testator’s direction. For purposes of this paragraph,
“revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will
or any part of it. A burning tearing, or canceling is a “revocatory act on the will,” or whether or not
the burn, tear, or cancellation touched any of the words on the will.
Texas Probate Code § 63. Revocation of Wills
No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will,
codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the
same, or causing it to be done in his presence.
Texas Probate Code § 85. Proof of Written Will Not Produced in Court
A written will which cannot be produced in court shall be proved in the same manner as provided in the
preceding Section for an attested written will or an holographic will, as the case may be, and the same
amount and character of testimony shall be required to prove such will as is required to prove a written will
produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause
must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the
contents of such will must be substantially proved by the testimony of a credible witness who has read the
will, has heard the will read, or can identify a copy of the will.

UPC
 Must have: (1) intent to revoke a will + (2) a revocatory act  you need both (intent + act)
 Revocatory acts include: burning, tearing, obliterating, or destroying (Physical act must be
done to the original and not a copy.)
 Partial revocation is allowed, like crossing out a line
Texas Law about revoking a will
 Intent not needed per statute (but caselaw says it’s needed), revoking will by mistake doesn’t result in
revocation
 Proponent of the will has burden of showing it isn’t revoked
o But no suspicious circumstances, then rebuttable presumption that it is not revoked
 Can revoke by a subsequent will, destroying, or cancelling
 Partial revocation by physical act is not allowed (such as crossing out a line in a will), unless it is a
holographic will. A strike-out on a holographic will is also okay, even if it is not signed.
 Can revoke with a declaration in writing w/ right formalities TPBC §63
o Why have this rule? Puts pressure on trier-of-fact, because extrinsic evidence would be used
to prove whether the act was intended to be a revocation. Cuts into wills act basis when
extrinsic evidence has to be used.
 You can revoke a will with a holographic or attested will.
 Still substantive requirements
o Of sound mind
o Intent to revoke

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Codicil Problems (p. 287)

2003: T executes a will giving all to A
2008: T executes a document fiving diamond ring to B and car to C. Document contains no words of
revocation.
(a) What if T destroys the 2008 codicil with intention of revoking it, and the will is offered for
probate after T’s death?
a. Answer: A takes everything. Revoking the codicil doesn’t revoke the will
(b) What if T destroys the 2003 will with the intention of revoking it, and the codicil is offered for
probate after T’s death?
a. Answer: Revocation of a will is presumed to revoke all of its codicils

 Three-step process to proving a lost will not produced in court TPBC §85  have to go through this
process if trying to prove dependent relative revocation (DRR)
1. prove due execution – your Ws have to testify to the execution no matter what – unless it was a
self-proving affidavit
2. prove cause of the loss of the will or prove cause of non-production – b/c you have to overcome
the presumption of revocation
3. contents of the will by the testimony of a W who has read it or heard it read. (TX = substantial
proof)

UPC
 Need intent
 Need a small act to revoke: Burning a
corner or slight singing is revocatory act
(even if the singing doesn’t touch the
words!)
 Partial revocation is allowed
 Cross-outs are valid, even if
unwitnessed since those are considered
partial revocation by a physical act § 2-
507
Texas
 Don’t need intent per statute, but do need intent
per caselaw
 Need a larger act to revoke: Burning a corner or
singing are NO a revocatory act (need to really
destroy or cancel it)
 Partial revocation NOT allowed by physical act,
unless holographic will (if want to revoke part of
non-holographic – must have a new instrument)
 Can partially revoke w/ a strike-out on a
holographic will only
 Revoking a will by mistake will not revoke a will
(even though intent is not an element)
 Can revoke w/ declaration in writing w/
formalities (or subsequent will or codicil) TPBC
§63

Problem: Revocation by Inconsistency

2003 → T executes a will that gives all property to A.
2004 → T executes a will that gives diamond right to B and car to C. (No words of revocation)
(a) In early 2005, T destroys the 2004 codicil with the intention of revoking it; T later dies in 2005.
The 2003 will is offered for probate. Should it be admitted? The codicil can be revoked without the
will being revoked.

(b) Suppose that T destroys the 2003 will with the intention of revoking it. After T’s death, the codicil
is offered for probate. Should it be admitted? There is a presumption that when the will is revoked,
all codicils are also revoked. It must be proven by a preponderance of the evidence that the codicil meant
to stand independently.

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There is no curative doctrine in Texas. UPC allows a will to be notarizes rather that witnesses.
The evidentiary function is served by holographic wills. These wills do not have to be attested. Under UPC,
you can use extrinsic evidence to prove the will.

Texas: Revocation: 63 1) subsequent will/ codicil/ declaration in writing that satisfies Wills a\Act
requirements 2) testator destroys or cancels or someone else does it at the direction and in the presence of
testator. Intent = judicial requirement..
UPC: You do not have to mess up any of the words with your revocation; you can just burn the edge of your
will. Helps the ill-advised testator. Court has discretion. Texas: You literally have to destroy; you cannot
just burn and edge of the will.
Pg. 287
A) 2008 will is a codicil to the 2003 will. Testator destroys codicil and dies. The will is not revoked.
B) If T destroys the 2003 will and the codicil is probated, the presumption is that the codicil is also revoke d,
but the presumption can be rebutted.

Can’t look to other sources

A document or writing can be dispensing powered UPC 2-503

Harrison v. Bird
Supreme Court of Alabama, 1993
621 So.2d 972
 Facts: Attorney tore up will at client’s request, but not in presence of client. The torn Will was not
found at the testator's death, but the attorney’s letter which mentioned torn up pieces was found in the
client’s files. Harrison offered a duplicate original for probate.
 Holding: Enough evidence that it was her intent to revoke the will, there is a presumption that a will
is revoked if it cannot be found, here it was not found. Revocation by proxy must be at the T’s
direction and must be in the T’s presence.
 Held: A rebuttable presumption of revocation exists where a will cannot be found among a
deceased’s personal effects.
 Rules of law:
o When will is in testator’s possession, but not found, then there is a presumption that the
testator revoked the will. The one that wants enforcement of the will must rebut the
presumption. The presumption was not rebutted here. (Atty may be liable for malpractice if
torn pieces are found b/c he should have known that he needed to do it her presence.)
o If an atty is going to revoke a will it must be in T’s presence and at T’s direction. (Phone
does not count, must be in person!)
o pg.289 1) Harmless error provisions applies if there is a document. Putting the will in a file
labeled revoked will could count if there is clear and convincing evidence.
Texas is only liable to the client, the hiers cannot sue for malpractice in this case.
A will can simply revoke a prior will without dispensing with property.
Thompson v. Royall
Supreme Court of Virginia, 1934
163 Va. 492, 175 S.E. 748
 Facts: Attorney wrote “null and void” on the BACK OF THE WILL. The will also
had a codicil. The writing was not in the T’s handwriting. (This is not a holographic will since it was
not in her handwriting.) Witnesses did not sign it either.
 Holding: Will was held to be valid since not it properly revoked. The statute required
writing on the front of the will and there was only writing on the back of this will. (If allowed writing on
the back – could potentially revoke a will w/ another document.)

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 Held: Revocation of a will by cancellation is not accomplished unless the written

words of the document are mutilated or otherwise impaired.
 Rule of law: Cancelling a will is a revocatory act under the UPC and TPBC, but in
this case there was not a true cancellation. The writing should have actually touched the will (instead of
just being written on the back of the will).

In Texas, probably read it narrowly in terms of a cancellation

UPC 2-507(a)(2)- doesn’t necessarily need to touch the words of the will

Problem 3—Page 258

Mrs. Kroll’s will had attached to it a self-proving affidavit and that the notation signed by Mrs. Kroll
had been written across the self-proving affidavit. Has the cancellation touched any words of the will?
If you can count a self-proving affidavit to make a will true and fit into the statute, then if the self-proving
affidavit is revoked the will is revoked. Good argument to try in Texas. Use Section 59(b).
Problem 4—Page 258
Mrs. Kroll’s wrote on the left margin—“Cancelled. 19/9/32. M. Kroll.” Is this a valid revocation?
This is not a valid revocation unless this is a holographic will.

Problem
T → A, B, C, D
Can T partially revocate the will by exluding D? The problem is that anyone could make a change to the will
not just the testator. Even if the will is holographic, then D’s share will go to the residuary beneficiaries. If
the cross-out makes it impossible for it to be known who the other devisee was, then that unknown devisee’s
share goes to the heirs of T.

2. Dependent Relative Revocation & Revival (DRR) Casebook: 259-69

Revocation by mistake
 If T would not have revoked the will but for a mistaken belief, then the revocation is not effective.
 Revocations are not recognized if they were made by mistake, and thus, the will still stands.

Revival of a revoked will under UPC § 2-509

 If a second will wholly revokes the first will and then the second will is revoked by a revocatory/physical
act, then the first will remains revoked unless there was evidence that the revocation of the second will
was intended to revive the first will. No wills left at this point.
 If only partial revocation of the first will through a second will – then revoked part of first will is revived
unless evidence that testator did not intend for it to take effect or be revived.
 In other words, if there a third will revokes a second will (so, not by a physical act), then the third will
does not revive the very first will unless it’s clear in the text that they intended the first will to take effect.
(Absence proof in the document, the latest will stands. Even if revocation of the second will had been by
physical act, the first will is still not reinstated unless there’s evidence that that is what the T intended.)
This does not apply in Texas since we don’t recognize the right of revival!

Dependent Relative Revocation Doctrine (DRR)

 Use this doctrine when the first will is less screwed up (or not screwed up at all) and more in line with
the T’s intent, while the second will is invalid or more screwed up. This is a doctrine of equity.
 DRR a good way to meet testamentary intent. The best way would be to probate the later will, but since
that one is screwed up for some reason, revive the former will instead as a second best solution.  only
use this option when it comes closer to what the T actually intended to do! (2nd best solution theory)
 Rule: If when the T destroyed the former will it was premised on or dependent upon some mistake, then
the former will is revived. In other words, if T’s intent to revoke is tainted b/c T mistakenly believes that

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he has a new will and if he had known the true situation, he would not have revoked the first will – then
the former will is reinstated. T executes one will and thereafter attempts to revoke it by making a later
testamentary disposition which for some reason proves ineffective – so go back to first will.
o Ex. Mistaken belief that someone is dead, so you cross her out of your will (whether or not the
reason is written in the will). That person gets the original amt allotted to her when DRR is
applied. (only applies if out of the peculiar knowledge of T)
 An unusual situation of DRR is when a crt renders a revocation ineffective where the T attempts to
revoke a will under a mistaken belief that by doing so he is reinstating a prior will
 Must go through three-part analysis/process of lost wills when discussing DRR (see above), TPBC
§85
 Ex. one of the persons receiving a bequest was also a witness = will is purged (thrown out). But, DRR
may be invoked to sustain a gift to that person.
 CL v. UPC v. TX
o Under CL rule, no revival of revoked wills unless there is re-signing, re-witnessing or publishing a
later codicil to the original will.
o Under UPC, no revival unless evidence is presented at probate that T intended to revive the will.
o In Texas, testimony from a W is necessary. W can be shown a copy of a will and testify that that
is the language they read.

Texas law on DRR, no law on doctrine or revival

 Texas does not recognize the doctrine of revival  Can only can use DRR in Texas (see above).
 Tate doesn’t think that in TX extrinsic evidence would be used to construe a will if the language clear on
its face.

Examples:
Ex.1—Will leaves $ to Judy; then codicil says, I revoke the legacy to Judy b/c she is dead. That clearly
states what the mistake is, so it’s easy to apply DRR, mistake stated in the will, something that T could easily
be mistaken about.

Ex.2—“I revoke the legacy to Judy b/c I’ve already given her $5K.” In this case, could put Judy on the
stand to say that she didn’t receive the money, but applying DRR in this circumstance is a bad idea b/c this
knowledge is PECULIARLY in the mind of the T.

Ex.3—Can be decided by extrinsic evidence. Just says, “I revoke legacy to Judy.” Gives no reason, but told
that Judy was dead. In this case, have to rely on hearsay evidence to determine what was allegedly said to
the T. Some books say that DRR is applied and look at extrinsic evidence. In TX, court probably wouldn’t
apply DRR on these facts. TX courts have acknowledged the DRR doctrine. But an important background
principle is that courts don’t tend to look to extrinsic evidence when the will is unambiguous. In this case,
no real ambiguity in the will; doesn’t really matter.

UPC: Three different scenarios UPC 2-509 Summary

1. Will no. 2 wholly revokes will no. 1; will no. 2 was revoked by a physical act. a. (Alburn case.)
a. Presumption: UPC 2-509—previous will remains revoked unless it is revived. Presume
that it’s not revived unless you can show that it is revived through some circumstance of the
revocation of the subsequent will or T’s statements (that she intended to revive the first will).
2. Will no. 2 partially revokes will no. 1, then W no. 2 revoked by a physical act.
a. Presumption: That will is revived.
3. Will no. 2 revokes will no. 1, and then W no. 2 revoked by W no. 3. (Hardest case for revival.)

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a. Presumption: Previous will revoked unless revived. Have to show in new will in its terms that
it is reviving will no. 1. Can’t just show through circumstances or that T said so.

Problem1—Page 262
T’s typewritten will provides: “I bequeath the sum of $1K to my nephew, Charles Blake.” T later
crosses out the $1K and puts $1.5K and initials.
a. Is this a valid holographic codicil?
This is not a valid holographic codicil
b. What result in a state that does not permit partial revocation by physical act?
In Texas, which does not permit partial revocation, Charles would still can get his $1K, because the will
has not been revoked.
c. What result in a state that permits partial revocation by physical act?
Charles would still get $1K, even though the will had been technically revoked.
In a UPC jurisdiction, Charles would get $1.5K because there is testamentary intent and dispensary
power.

Hypothetical
T’s heir is H. There’s a 1995 will that gives everything to A; then a 1996 will that gives everything to
B. Then a 1999 document that says, “I revoke my 1996 will.”
 Most likely result: H will take under intestacy.

LaCroix v. Senecal
Supreme Court of Connecticut, 1953
140 Conn. 311, 99 A.2d 115
 Facts: T thought a codicil giving a person a gift was valid, but it was actually invalid b/c one of the
witnesses was one of the people she was giving the gift to – so the gift was purged (not recognized and
declared void).
 Holding: DRR saved this gift since mistake was that this codicil would be valid. (but, if the codicil had
changed a name entirely then DRR could not save this)
 Rule of law: DRR may be invoked to sustain a gift by will, when such gift has been revoked in a codicil
which substantially reaffirmed the gift but was void as to it under (state statute) by reason of the interest
of a subscribing witness.
Pg 298- 2) UPC: It is hard to say the material portions are in the testator's handwritting because the
handwriting does not say who the money is for.
There are not any DRR cases in TX. UPC only talks about revival. DRR is a judicial doctrine.

Estate of Alburn—Illustrates difference between DRR & Doctrine of Revival

Supreme Court of Wisconsin, 1963
 1955 Milwaukee Will- gives to V, O, L, and D. Only V is a relative; she is the grand neice.
 1959 Kankakee Will- gives to R, O, L, and D. R is her brother.
 1960 She tears up the Kankakee will.
 FACTS: Viola gets some items, then rest split between V and 3 others. In 1959, T moves away and
writes another will that leaves nothing to V, but leaves a small gift to Robert, but leaves the rest to the
same 3 other people (in this will, she expressly revokes the earlier will in writing). But in 1960, moves
back to Wisconsin and revokes the previous will by a physical act (tears it up; don’t need witnesses to
revoke a will).
 PROBLEM: T thought that by tearing up last will, the earlier will would be reinstated. Can she revive
the earlier will? At that time, she couldn’t do that. (The law has since changed.)

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 HOLDING: Invoke DRR. This was a mistake of law—she thought that by revoking the latter, she would
invoke the other. Not possible to revive the Milwaukee will in Wisconsin, but NOW Wisconsin
recognizes the right of revival so this case would be decided different today.
 If the will had named a different set of beneficiaries, the court may have ruled differently and allowed the
intestate succession to go forward; but in this case, there was only 1 different beneficiary in the newer
will (that was revoked).
 TX does NOT recognize the doctrine of revival. (You can’t tear up one and let the old one stand.)
 Don’t apply DRR or Revival, she dies intestate b/c both wills revoked. Court can’t apply the D of
Revival b/c Wisconsin didn’t have it then, so it applied DRR and ignored revocation of the second will,
as if it had never been revoked.
 Texas courts have the same choice: Doesn’t recognize D of Revival, but does recognize DRR.
 Under the UPC, if T revokes subsequent will with the intent to revive the prior will, can revive the prior
will.
 Presumption: Prior will remains revoked, but if you can rebut that presumption, like in this case, where
the T said she wanted the 1st will to stand, then can apply revival.
 Is there really a place for DRR? Tate isn’t sure. One of the UPC doctrines will get you to where you
want to be and DRR is a second-best solution. The T’s intent is to revive. Problem: A lot of states
haven’t adopted both UPC provisions, so in TX DRR is our best bet..
 Under UPC you could revive the Mil will and give Viola her share.

3. Revocation by Operation of Law: Change in Family Circumstances pp. 305

Revocation by operation of law b/c of changes in family circumstances
 Marriage
 Divorce (TX & UPC: Treat ex-spouse as having predeceased T)
 Birth of children under CL (NOT under UPC & TPBC)

Texas Probate Code § 69. Will Provisions Made Before Dissolution of Marriage
(a) In this section, “relative” means an individual who is related to another individual by consanguinity or
affinity, as determined under Sections 573.022 and 573.024, Government Code, respectively.
(b) If, after making a will, the testator's marriage is dissolved, whether by divorce, annulment, or a
declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall
be read as if the former spouse and each relative of the former spouse who is not a relative of the testator
failed to survive the testator, unless the will expressly provides otherwise.
(c) A person whose marriage to the decedent has been dissolved, whether by divorce, annulment, or a
declaration that the marriage is void, is not a surviving spouse unless, by virtue of a subsequent marriage,
the person is married to the decedent at the time of death and the subsequent marriage is not declared
void under Section 47A of this code.

UPC § 2-804. Revocation of Probate and Nonprobate Transfers by Divorce; No Revocation by other
Changes of Circumstances.
(a) [Definitions.]—OMITTED
(b) 
Order, or a contract relating to the division of the marital estate made between the divorced individuals
before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
(1) 
his [or her] former spouse in a governing instrument and any disposition or appointment created by
law or in a governing instrument to a relative of the divorced individual's former spouse, (ii)
provision in a governing instrument conferring a general or nongeneral power of appointment on the
divorced individual's former spouse or on a relative of the divorced individual's former spouse, and

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(iii) nomination in a governing instrument, nominating a divorced individual's former spouse or a

relative of the divorced individual's former spouse to serve in any fiduciary or representative
capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and
(2) 
annulment as joint tenants with the right of survivorship transforming the interests of the former
spouses into equal tenancies in common.
(c)  [Effect of Severance.]—OMITTED
(d) 
relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a
revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the
former spouse died immediately before the divorce or annulment.
(e)  [Revival if Divorce Nullified.] —OMITTED
(f) 
described in this section and in § 2-803 effects a revocation.

Divorce under UPC

 Revokes any gift given to a former spouse
 When testator divorces his or her spouse, the former spouse is treated as having pre-deceased the other
spouse under UPC and Texas.
 UPC 2-804 applies to probate and non-probate
 Texas & UPC: Bequest to former spouse is voided upon divorce (treated as pre-deceased)
 UPC – also invalidates bequest to relatives of former spouse, not true in Texas!
 Intestacy gets former spouses’ share

Texas Law on divorce

 Texas applies to probate, life insurance, and fiduciary appointments, but not trusts
 Texas & UPC: Bequest to former spouse is voided upon divorce (treated as pre-deceased)
 Texas allows bequests to relatives of former spouse – it’s silent on the issue.
 Intestacy gets former spouses’ share
 TX Fam. Code has a life insurance provision that’s similar.
 TX Prob. Code has a provision on revocable trusts that’s similar.
 Section 472- Non-testamnetary transfers.
 Section 69 amended in 2007. Wills- dispositions are revoked to spouse and relatives of spouse. All
other gifts are only revoked from the spouse.

Pg. 306 The stepson does not take anything under the new amendment.

Marriage
 Under UPC § 2-301, when testator remarries, the omitted spouse is entitled to intestate share – whatever
he or she would have gotten on intestacy w/ regard to prop that was not devised to the T’s children from
another marriage.
 Exceptions:
o Unless it is appears from the will that the will was made in contemplation of the marriage or
o Unless will was effective as is even if he or she got remarried or
o Unless the T provided for the spouse outside of the will by a non-probate transfer that was meant
as a substituted and his or her intent are clear
o This does NOT include non-probate, like trusts. (This statute not applicable to these things.)
 Under the UPC, marriage does not technically revoke an entire will, but it in effect revokes the will to
the extent of the spouse’s intestate share.
 In TX, a marriage does not revoke a will. Texas has community property.

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 In many states, marriage revokes a will entirely.

 Also see elective share statute later in this outline. Spouse may be entitled to share under common law.
We do not have forced shares in Texas.

Children
 Birth of children does NOT revoke a will under UPC. (same) It may give the child a pretermitted child
share.
 Birth of children after a marriage revokes a will under the CL.

Texas law on marriage and children

 In Texas, marriage does NOT revoke a will.
 Birth of children does NOT revoke a will. (same)
 Texas does not have an omitted spouse statute like UPC § 2-301, but in Texas the omitted spouse can get
(1) the homestead and (2) a family allowance entitling her to the amount needed for support for one year
and (3) she can get a personal set-aside (although that wouldn’t be very effective if the estate is
insolvent).
 Texas does not give the spouse a full share. Just like other community property states.
Pretermitted spouse statutes
 Some states have these (not Texas).
 Law partially revokes a will written before a marriage if it does not include a spouse. Presumption is that
the spouse would want to give property to spouse, but just didn’t get around it.
 The only challenges are based on intent – intent must be clearly manifested in the will. Issue that is
litigated is whether there was sufficient evidence of T’s intent.

Difference between UPC & TPC

 Prob. 1, p.270—All to wife, and if wife doesn’t survive him, to the stepson. T divorces the wife and
T dies (his heirs are children from a previous marriage).
o TX: Only to dispositions in favor of a former spouse are removed.
o UPC: Not just dispositions in favor of a former spouse, but also dispositions to a RELATIVE of a
former spouse are removed.
o TX: Surviving spouse only entitled to her share of the community property. (??) PP: When
someone has only been married for a short time before they die, the presumed intent is that they
don’t want the surviving spouse to get all of their assets.
o UPC: Says that the share increases over the course of the marriage.
 Forced share (?): Surviving spouse, in most states, is entitled to a certain amount of the
estate, even if T left more or all to someone else.
 CP states (like TX) don’t have elective share. So in TX, the only interest that the
surviving spouse has is in the CP.
o Children: Both statutes have child provision: If child is born after the execution of the will, child
may have an interest in the will.
Revocation by Law
 You didn’t revoke, but the court will treat as if it was revoked, at least in part.
 E.g., married at time of execution of the will, but then gets divorced but doesn’t change the will.
 UPC: dispositions to the former spouse are revoked and treat divorced spouse as having predeceased the
T.
 Life insurance, Revocable trusts, same rule applies.
 Bequest to a relative of a former spouse: TX says that only spousal gifts revoked, but in the UPC, it
avoids gifts to both the former spouse and relatives of former spouse that aren’t relatives of the decedent.
 Another example: At time of will execution, not married

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o UPC: Surviving spouse entitled to her intestate share; gets what she’d have gotten if T died
intestate.
o TX: Marriage does NOT revoke a will. Only protection a surviving spouse would have is ½ CP.
If person dies shortly after marriage, spouse doesn’t get much.

UPC Texas
Divorce Divorce
 Bequest to former spouse is voided upon  Bequest to former spouse is voided upon divorce
divorce (same) (same) but the will itself is valid.
 Former spouse is treated as having  Former spouse is treated as having predeceased
predeceased the decedent and gift is void on the decedent and gift is void on divorce (same)
divorce (same)  Divorce rule applies to probate and life
 Applies to probate and non-probate matters insurance (via the family code), but not to trusts
(so ex- spouse can’t take under trusts or life  Texas validates, by their silence, bequests to
ins. either) relatives of a former spouse. (validates)
 Invalidates bequests to a former spouse’s  Intestacy gets former spouses’ share (same)
relatives (different). UPC goes further than
many statutes here. Marriage
 Intestacy gets former spouses’ share (same)  Marriage does not revoke a will
Marriage  Omitted spouse can get (1) homestead & (2)
 Marriage does not entirely revoke a will, family allowance entitling her to amt needed for
spouse receives amt would receive under support for 1-yr & (3) a personal set-aside
intestacy (so revoked to that extent) See
elective share and pre-termitted sections. Children
 Birth of children does not revoke a will
Children
 Birth of children does not revoke a will
C. Will Components 271-78, 285-86; Exh.11A
Texas Probate Code § 58. Interests Which May Pass Under a Will
(c) A legacy of personal property does not include any contents of the property unless the will directs that
the contents are included in the legacy. A devise of real property does not include any personal property
located on or associated with the real property or any contents of personal property located on the real
property unless the will directs that the personal property or contents are included in the devise.
(d) In this section:
(1)
or on a specifically bequeathed or devised item. The term includes clothing, pictures, furniture, coin
collections, and other items of tangible personal property that do not require a formal transfer of title
and that are located in another item of tangible personal property such as a cedar chest or other
furniture.
(2)
title, certificate of ownership, written label, marking, or designation that signifies ownership by a
person. The term includes a motor vehicle, motor home, motorboat, or other similar property that
requires a formal transfer of title.
Doctrine of Integration: All papers present when the will is executed that are intended to be part of the will
and are present at the will’s execution are integrated into the will—If not present at will’s execution, can be
incorporated by reference. Problem if the papers are not stapled together or the language is not the same on
all pages.
Incorporation by Reference

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 Under the CL, any writing that was in existence at the time of the writing of the will may be
“incorporated by reference” if the language of the will manifests this intent and describes the writing
sufficiently to permit its identification.
 UPC: Two different provisions that bear on this:--RETAINED CL FOR REAL PROPERTY & MONEY
NOT OTHER PERSONAL TANGIBLE PROPERTY
o UPC 2-510: Codifies the CL rule that you cannot incorporate a document by reference unless the
document is in existence when the will is executed.
o UPC 2-523: Carves out an exception for items of personal tangible property other than money.
(Furniture, jewelry, cars; not money, securities, land.) Items can be incorporated into the will
even if written after the will was executed. Can write your will and say, “I am going to write a
list of tangible property, and I want the executor to give it to people according to my list.” And
you can keep changing this list until you die.
o Any writing may be “incorporated by reference” if the language of the will manifests this intent
and describes the writing sufficiently to permit its identification. (different than doctrine of
integration above)
o UPC allows the writing to be made before or after the will, as long as you write it before your
death some time.
 TX: Not clear that TX recognizes this. On Bar: It’s unclear whether the doctrine applies; there’s dicta
going both ways. If it applies, X would be the result. If it does not, Y would be the result.
 If this had been in effect, the woman in the Green… case would have gotten her painting b/c that was an
item of personal tangible property.
 Is this a good idea? Should you incorporate by reference? NO.
o Why: Your client might move to a jurisdiction that doesn’t recognize this.
o On safer ground to do this by a trust rather than through a will. (Revocable trusts can accomplish
much of what can be done through a will, and better off doing this.)

Republication by Codicil
 Will is treated as re-executed/republished as of the date of the codicil.
 Can use this to correct errors in a will. Can cure a will that was witnessed by an interested person by adding
another witness in a codicil.
 Applies only to prior validly executed wills. (but can cure witness problem)
 If you execute a will and then later execute a codicil, that codicil republishes the will. If there were
problems under a purging statute, this can be cured by a republication by codicil.
 Johnson case illustrates the difference between this and integration.
 Might matter if the original will was signed by one of the recipients of a gift as an interested witness
(purging statute). If there had been a subsequent codicil that was signed by 2 disinterested witnesses,
then OK—as if the will, from the beginning had been signed by 2. The codicil cannot republish unless
both documents adhere to the Wills Act.
Acts of independent significance
 Permits extrinsic evidence to identify the will beneficiaries or property passing under the will.
 If the beneficiary of property designations are identified by acts or events that have a lifetime motive and
significance apart from their effect on the will, the gist will be upheld under this doctrine.
 Doctrine will apply even though the phrasing of the will leaves it in the T’s power to alter the
beneficiaries or the property by a nontestamentary act.
 Example: A car has a lifetime significance, therefore they won’t change a car just to mess with their
estate planning.
 What: Don’t buy a new car b/c you want to amend your will. Do it b/c you want a new car. Allows
someone to change the disposition of their estate w/o amending their will.
 Why: People aren’t trying to weasel their way out of the WAF. Let them make independent decisions.

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 E.g., someone tries to bequeath contents of a desk drawer or safe deposit box. PP: Safekeeping function of
putting the items in a drawer. Helps case if the drawer is locked. Not just putting in as a will substitute, but to
protect from theft.
 TX has a statute that is broader than the D of AIS—when you bequeath an item of IS, it does not include
the items unless the will states it. Implication: If you say so in the WILL, then you can bequeath these
items, even if the circumstances continually change. Statute only applies when you’re giving the desk to
the same person that you’re giving the contents to
o Can’t say I give desk to Z and contents of desk drawer to Y.
o Exception for titled personal property (stock certificates, cars, etc.)

Problems: P. 286
1. T says that A gets contents of the right hand drawer of her desk. Find a
savings bank passbook in T’s name, shares of common stock, and a diamond ring. Does A get
these items?
o Is the motive for this in the will?
o Courts have not had a problem doing this when the items are in a safe deposit
box. If T had said, “I leave the contents of my SDB to A,” would have been OK. PP: But the
independent significance of putting those items there is that they were put there for safekeeping
—to protect items so nothing happens to them.
o The lifetime of safekeeping applies to the safety deposit box, but not the
envelopes, because putting it in envelopes is insignificant
o Texas Statute Section 58 Contents are not included with property unless
specifically included. Titled personal property is not included. If you drive your car into the
house and devise the property and contents of the house, the devisee still does not get the car.
2. Sara executes her will in 2000 and leaves a residue of her estate to any charitable
trust established by the last will and testament of her brother, Barney. In 2001, Barney executes
his will, devising his property to the trust, established by his will.
o Should be able to get in under AIS. You cannot use incorp by reference because Barney's will
was executed after Sara's.
o Don’t have a last will & testament until you die (can always create a new one).
o AIS: Would have a special power of appointment over the property that was devised by Sarah in
her will, so he can give it to whatever charity that he wants, as long as he establishes that in his
will.

UPC § 2-512. Events of Independent Significance.

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

UPC § 2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal Property.
Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or
list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other
than money. To be admissible under this section as evidence of the intended disposition, the writing must be
signed by the testator and must describe the items and the devisees with reasonable certainty. The writing
may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or
after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing
that has no significance apart from its effect on the dispositions made by the will.
Clark v. Greenhalge (Mass. 1991)

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 FACTS: 1977 Will attempts to incorporate by reference a memorandum, which is actually just a
notebook. Found a document that was prepared in 1972 and modified in 1976. This was the memo. But
this wasn’t the only document that was kept; also had a notebook that was dated 1979 (after the will’s
execution), and it has provisions that give other things to people (painting to a friend). Executed 2
codicils to her will in 1980. Died in 1986.
 ISSUE: Greenhalge is refusing to distribute the painting to the friend (he wants to keep it). The doctrine
at issue is IBR. Did the will incorporate by reference the 1979 notebook?
 CL: Can only incorporate a doc by reference if it was in existence when the will was written. Can’t
incorporate by reference something that was written later.
 HOLDING: Codicil in 1980 republishes the will, so republication by codicil doctrine allows the will to
be republished after the document came into creation, thus can bring it in if all other requirements are
met.
 RULE: A properly executed will may incorporate by reference into its provisions any document or paper
not so executed and witnessed if it was in existence at the time of the execution of the will and is
identified by clear and satisfactory proof as the paper referred to therein.
 PROBLEMS: The notebook is not a memo. Greenhalge says he wasn’t aware of the notebook.
 But Ct holds that it is clear that T’s intent was that the notebook was a memo. Evidence that G did know
about the notebook. (Follows UPC, not CL).
 This memo was not in compliance with the Wills Act, but this doctrine (incorporation by reference) is an
exception to the traditional Wills Act.
 Tate says they’re stretching the doctrine in this case. The will isn’t clearly ID’g the document that is
supposed to be incorporated by reference. If the executor hadn’t been so greedy, probably wouldn’t have
ruled this way.
UPC 2-513 You do not need clear and convincing evidence.
Have the will pour over into a trust that the trustee will distribute the personal property.

Brooker v. Brooker (1937), TXSC expressly declined to rule on whether or not this doctrine (incorporation
by reference) is recognized in TX.
 1955 case: Said that IBR hadn’t been expressly approved by the TXSC. The leading treatise on the TX
law of wills says that the law in TX is ambiguous. Some cases indicate that it doesn’t apply, but other
cases make it seem like it does exist. On Bar, at least hint that there are other cases out there that say it’s
foggy.

Johnson: (OK 1954) How not to apply repub by codicil and inc. by reference. Document w/ several
typewritten paragraphs, and at the bottom, T wrote in handwriting that he gave his brother $10; “this will is
complete.” Problem: Typewritten part isn’t attested, so can’t probate that portion. Court wants to probate
the handwritten portion and try to save the will. Two theories (Tate thinks wrong):
1. Republication by codicil: Even though the typewritten doc not prop executed, it’s
republished by the handwritten codicil, which is ok b/c handwritten and in T’s hand. Prob: How can
something be republicated when NOT published in the first place? This is a misapplication of that
doctrine. (says “This will” not C)
2. Incorporation by Reference: Dissent says that this doc isn’t incorporation by
reference b/c not a separate doc that’s being incorporated rather than one doc that is partly
holographic and partly typewritten. Tate agrees w/dissent that there’s no way to probate the
typewritten material. Could apply dispensing power as long as you have C&C evidence that it was
intended to be the will.

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Could you get in the holographic portion separately? Try to apply the surplusage theory: even though
typewritten stuff, there’s enough in handwriting to evidence testamentary intent. Prob: Different from
typical surplusage case—usually have a preprinted will form (Home Depot), but here, something that was
entirely written by T and intended to be part of the will. Not so good for the SD.
RULE: A valid, holographic codicil may incorporate and republish a prior will that would have been
ineffective because of its failure to comply with formal requisites.
 TX: Henson v. Henson—TXSC refused to allow a holographic document to validate a prior, unattested
will. They wouldn’t let the unattested document to validate the will.
o Dicta suggests that the court would also deny probate, even if the document had been a valid will.
So, not sure whether IBR would work in TX.
 If this is a separate will, can you probate the holographic portion and disregard the typewritten portion?
Surplusage theory: If the handwritten portion is enough, then can disregard the typewritten; treat
handwritten part as if meant to stand alone. But the typewritten portion in this case was actually written
by the T, so the T is intending for this language to be a part of the will. (“A distinction without a
difference.”)
 Could get this in under the UPC w/dispensing power. As long as C&C evidence that this is meant to be
his will.

D. Contracts Relating to Wills pp. 286-90; Exh. 11B

Two kinds:
1. Ks to make a will (uncommon)
a. Usually comes up in the context of an employer promising an employee that he will leave her
something if she continues employment
b. Also see with a mistress or boyfriend.
2. Ks not to revoke a will (more common)
a. See with married couples who execute first will and want to make sure that the estate goes to
children and not others.
b. Governed by K law (need consideration, obligations, specific terms, etc.)
c. M ere execution of a joint will is not evidence of a contract. The contract is only enforceable
if it is proven by clear and convincing evidence.
Remedies
1. An award to the contract beneficiary of “the value of the property which was to come to her under the
contractual will, or
2. An order compelling the decedent’s “successors to transfer the property to the contract beneficiary in
accordance with the deceased’s agreement.

Joint will v. Mutual Will

 Joint will: one instrument executed by two person as the will of both. These are discouraged! Lots of
litigation since not sure if this is to be enforced as a k.
 Mutual will: separate wills of 2+ people that contain similar or reciprocal (mirror-image) provisions.
May put a clause in there to avoid litigation by saying “this is not a k.” Common b/c spouses want to
favor each other.
 Joint & mutual will: refers to a joint will in which the respective testators make similar or reciprocal
provisions

Uniform Probate Code § 2-514. Contracts Concerning Succession.

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the
effective date of this Article, may be established only by (i) provisions of a will stating material provisions of
the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the

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contract, or (iii) a writing signed by the decedent evidencing the contract.  The execution of a joint will or
mutual wills does not create a presumption of a contract not to revoke the will or wills.

UPC: three ways to refer to will in a k p. 289

1. Name important provisions of a will in the k
2. Express reference to a will in a k and extrinsic evidence proving terms of k OR
3. a writing signed by decedent evidencing k (S of F applies)
The execution of a mutual/joint will does NOT create a presumption not to revoke will
UPC elements:
 Writing signed by D
 Stating that a K exists, and stating material provisions of the K (doesn’t have to be
binding/enf)
 Allows you to prove by extrinsic evidence.

Texas Probate Code § 59A. Contracts Concerning Succession

(a) A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into on or
after September 1, 1979, can be established only by:
(1) provisions of a written agreement that is binding and enforceable; or
(2) provisions of a will stating that a contract does exist and stating the material provisions of the
contract.
(b) The execution of a joint will or reciprocal wills does not by itself suffice as evidence of the existence of a
contract

Texas law on referring to a will in a k

 TPBC 59(a) k relating to a will can only establish a K in two ways:
1. provisions of a written agreement that is binding and enforceable
2. state in the will that a K exists and give the material provisions of a K

Hypothetical
A promises that if B takes care of A, he will leave A his estate in will. A signs a doc, but there’s only 1
W, so not an attested will. Can you introduce that document to show that there was a K between A &
B?
1. UPC: Maybe b/c it’s a writing signed by D and arguably evidences the K.
o Bolsters assertion that a K exists.
2. TX: Not a chance. Not a written agreement that is binding and enforceable, but an attempt to
execute a gratuitous transfer.

Problems—Page 287
1. T promises to A to leave estate to A if A takes care of T for life.
T makes the will leaving estate to A. A then decides not to perform, T rescinds the K, but T’s
will still leaves the property to A. Does A take under the will?
 Which policy is more important? Equitable issues or wills act?
 Case in book says that A can take b/c WAF is more important.
2. A dies of AIDS. After A dies, roommate, B produces a
document (typed by B, signed by A and one witness) that shows A devising half of his estate to
B. B says that A promised to do this if B took care of him (not properly attested). Is B entitled
to half of A’s estate?
o UPC 2-514: Not dispensing power (has higher burden). Writing signed by decedent evidencing a
K. Supports B’s claim that there was a K.

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o UPC only requires that there is sufficient evidence that there is a contract—Does not have to
produce a contract.
o Fritz case that it’s based on says that B could enforce it. Tate doesn’t totally agree.
o TX result: No written agreement that is binding and enforceable, and don’t have the actual
provisions of the K.
3. If W promises to take care of H for his life in consideration of H devising her Blackacre. H dies,
devising BA to A.
 She has a responsibility/duty to take care of her husband, so there is no consideration.

Problem 2—Page 294: Non-probate to second wife, and property acquired after the first wife’s death.
 Look at the K terms to see what it covered to determine if the court might uphold it.
 In the Putnam case, referred to the residuary estate, acquired after the first marriage and before the
second marriage. Most courts following majority rule would say that the agreement applied to ALL the
H’s property and new wife shouldn’t get any of it.
 New Wife would gain nothing financially from the marriage; but anything she earned on her own after
the marriage is still hers. (In a CP state, she would be entitled to ½ of the T’s estate).
o Avoid this problem with a revocable trust that could hold property during their lifetime and then
to the children from the second marriage. If people are too lazy to set up a trust, maybe we
shouldn’t enforce their Ks.
o Tries to accomplish something similar to CP for non-CP states (offer some sort of protection).

Via v. Putnam (FL 1995): K not to revoke a will

 1st wife dies and T remarries. Didn’t create a second will after remarriage. Florida has strict policy of
leaving wife with property.
 Effect of marriage after a will is executed in FL: Promised in will not to revoke his will, but this is
revocation by operation of law. Breach of Contract.
 Two relevant statutes:
o Pretermitted (??) spouse statute: If you marry after making a will, the surviving spouse gets half.
o Elective-share Statute: Even if the will made some provision for the surviving spouse (took into
the possibility of remarriage), spouse still given a forced share (30%)
 Wife claims that she’s entitled to 50% or her elective share of 30%.
 Children argue that K was breached by T remarrying and revoking the will, even though he didn’t
physically revoke the will, but revocation by operation of law violates his K, so the kids can enforce the
K as third-party beneficiaries.
 HOLDING: Ct says that PP trumps the 3rd-party beneficiaries and they give the new wife a share.
 RULE: Children, as third-party beneficiaries under mutual wills of parents, should not be given creditor
status when their interests contravene the interests of a surviving spouse under the pretermitted spouse
statute.
 PP: Marriage Take care of the spouse after other spouse dies. Supporting married people.
o Also PP of enforcing Ks and holding people to their bargains.
o Ct says PP of enforcing marriage is more important
 Tate says not unusual result—most courts say that married people are happier and more stable, and this
benefits society for us to encourage marriage.
o If you enforce the K, that discourages the second wife for marrying for the wrong reasons—takes
away any financial advantages of her marriage; she won’t marry him for the money that she’s
likely to get upon his death.
 This is the MINORITY rule. Most courts rule the other way—that the surviving spouse holds the
property as a constructive trustee for the K beneficiaries.

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HYPO: What if the 1st W and H had promised to leave everything to children if one of them died first
and they remarried. Would enforcing the K promote or discourage marriage?
 Promotes marriage (first marriage) b/c wife would know that the children would be taken care of later,
after she died. Selfish. Want property to stay with spouse and children, not to the second spouse of their
spouse.
 Don’t focus on the second marriage; think about the first marriage.

E. Will Contests
Burden of Proof—Texas
 Prior to Probate or during probate  the burden is on the proponent of the will to establish
competence
 After the will is admitted for probate  the burden shifts to the challenger

Five reasons to contest:

(1) mental capacity / insane delusion (innocent act)
(2) undue influence (intentional wrongdoing)
(3) fraud (intentional wrongdoing)
(4) duress (intentional wrongdoing) OR
(5) tortious interference with expectancy
(Note: Cannot contest a will for a mistake if language is unambiguous b/c relief will not be granted – even
though that is an innocent act)

1. Mental Capacity

In addition to T being an adult (normally 18+) there are four requirements of mental capacity
In the law of wills, the requirements for mental capacity are minimal. To be competent to make a will, the
testator must be an adult and must be capable of knowing and understanding in a general way
[1] the nature and extent of his or her property,
[2] the natural objects of his or her bounty (your family), and
[3] the disposition that he or she is making of that property, and must also be capable of
[4] relating these elements to one another and forming an orderly desire regarding the disposition of the
property.
Restatement (Third) of Property: Wills and Other Donative Transfers §8.1 (2003)

Mental capacity—ENTIRE WILL IS INVALID

 General lack of competence or failure of minds due to something specific (insane delusions)
 In most states, burden to prove a person does not have mental capacity is on person challenging capacity.
 Legal capacity to make a will requires a greater mental competency than is required to get married, but
less capacity than to manage one’s investment, make a k, or make a gift.
 If declared incompetent at one time, that does not mean you won’t be competent at some point to make a
will.
 Lack of mental capacity means more than just irrational behavior, being weird, or being a drunk.
 W duty: witnesses have a duty to be satisfied w/ T’s sanity before they sign anything or lend their name
to the will. Cannot later testify that they didn’t think T sane. (Tate also thinks non-lawyer scriveners
should be treated similar to lawyers re: satisfied about capacity.)
 Explanations for requiring mental capacity:
o Represent T’s true desires

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o Mentally incompetent are not defined as “person”

o Law requires mental capacity to protect the T’s family
o Inheritance law and legal institutions are legitimate as long as decisions are reasoned
o Assures sane person that the disposition he desires will be carried out if he later becomes insane
o Protects society at large from irrational acts
o Protects senile or incompetent T from exploitation by cunning people

Insane delusions—ONLY PART OF WILL IS INVALID

 T may have the mental capacity to make will, but if they are suffering from insane delusions, may
lack testamentary capacity.
 Delusion: false concept of reality. Insane delusion is a legal concept, not a psychiatric concept
 Majority view: a delusion is insane, even if there is some factual basis for it, if a rational person in the
T’s situation could not have drawn the conclusion reached by the T
 Minority view: if there’s any factual basis at all for the T’s delusion, it is not deemed insane

Texas law on mental capacity and insane delusions

 In Texas, with regard to mental capacity, if issue is raised before will is offered for probate– the person
probating has burden to prove the T was sane. (burden on will proponent, not the contestant)
 Burden of proof shifts to contestants to prove lack of mental capacity once will is being probated. So,
contestants usually have the burden.

Enough to show a factual basis for an insane delusion to overcome a challenge. Will is valid unless the
terms of it were directly influenced by the insane delusion. Wills cannot be overturned unless disposition
would have been different absent the insane delusion.

Experience: courts almost/never actually line item insane delusions, tend to simply cut out whole will

Texas Probate Code § 88. Proof Required for Probate and Issuance of Letters Testamentary or of
Administration
(a) General Proof. Whenever an applicant seeks to probate a will or to obtain issuance of letters testamentary
or of administration, he must first prove to the satisfaction of the court:
(1) That the person is dead, and that four years have not elapsed since his decease and prior to the
application; and
(2) That the court has jurisdiction and venue over the estate; and
(3) That citation has been served and returned in the manner and for the length of time required by this
Code; and
(4)
law and is not disqualified.
(b) Additional Proof for Probate of Will. To obtain probate of a will, the applicant must also prove to the
satisfaction of the court:
(1)
will, was at least eighteen years of age, or was or had been lawfully married, or was a member of the
armed forces of the United States or of the auxiliaries thereof, or of the Maritime Service of the
United States, and was of sound mind; and
(2)
formalities and solemnities and under the circumstances required by law to make it a valid will; and
(3) That such will was not revoked by the testator.

Common Law TX

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 Insane delusion doesn’t have to actually  Insane delusion must actually/in fact cause the
cause a disputed provision – it just has disputed provision. (has to directly influence)
to “might have” caused it. (doesn’t have  Enough to show a factual basis for an insane
to directly influence) delusion to overcome a challenge.
 Will is valid unless the terms of it were directly
influenced by the insane delusion. Wills cannot be
overturned unless disposition would have been
different absent the insane delusion.
Washburn- initial burden on contestant, then to proponent.
Wilson- initial burden on proponent and then contestant.
 In re Strittmater—Feminist case- Caretakers against family member
Court of Errors and Appeals of New Jersey, 1947
140 N.J. Eq. 94, 53 A.2d 205
 Facts: Left her estate to the National Woman’s Party out of an extreme hatred for men.
 Holding: If a will is a product of an insane delusion, it will not be probated. Will was thrown out.
 RULE: If you challenge a will on the fact that T lacked general mental capacity, then regardless
of what the will says, it is not valid. But if you challenge on the ground that there was an insane
delusion, then have to show that the insane delusion affected the disposition of the estate.
 Note: This may be decided differently today! Would challenge it under general mental capacity
rather than insane delusion. Probably would probate the will as is today. Because she probably
wouldn’t have left the property to her cousins anyway.

 In re Honigman
Court of Appeals of New York, 1960
8 N.Y.2d 244, 168 N.E.2d 676, 203 N.Y.S.2d 859
 Facts: H (T) thought W unfaithful, H admitted to having mental problems (Ct found very little
evidence of this).
 Holding: New trial declared to decide if there was mental capacity or whether this was an insane
delusion. The will is invalid if the dispositive provisions MIGHT have been influenced by the
insane delusion, even if they didn’t necessarily cause the delusions.
o If W was entitled to everything under intestacy laws, case may have been decided
differently – but she had property of her own
 Tate: Tate says the rule may be better that only if the provision is that the delusion in fact caused
the dispositive disposition, not whether it just might have been caused by the delusion. Texas
agrees.
o Can’t set aside a will provision unless the delusion directly influenced the testamentary
disposition. How ct got result: Under NY law then, wife’s elective share was only a life
estate in ½ of the property. And the intestate share is ½ life estate in fee simple. Today in
NY, now E share is ½ in fee simple and the intestate share is everything. Probably
wouldn’t’ have gotten the same conclusion today.

 In re Estate of Wright
Supreme Court of California, 1936
7 Cal.2d 348, 60 P.2d 434
 Facts: Eccentric man. Daughter challenging will b/c thought he was of unsound mind. T gave a
lot of property to his friend and to his granddaughter. There were two Ws, notary public, & atty.
o If will was done intestate, daughter would get a lot more. BOP is on the daughter—
contestant.

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o Several Ws testified to things he did that made him look of unsound mind. (He put paper
roses on rose bushes, pretended to be dead, told people he had sent them stuff, ignored
granddaughter in street, would leave dinner w/o saying why, chased kids out yard, drunk
all the time).
 Holding: Reversed. Alcoholism does not equal mental incapacity! Might explain his weird
behavior. Being weird does not mean you are of unsound mind.
 Rule: Evidence of mere foibles, idiosyncrasies, moral or mental irregularities, or departures from
normal is insufficient to support a case of testamentary incapacity where they do not relate
directly to the testamentary act.
 Tate: it takes more than irrational behavior. Showing up at bank with specific list of people,
etc., shows he had mental capacity. Met the requirements above – knew relationships and natural
object of his bounty. He implemented his wishes through a will. Therefore, he didn’t lack
general mental capacity.
 If the I.D. affects his disposition of the property, then void will or parts of it.

Challenge brought after will is admitted to probate burden is on will contestants.

Spicer v. Breeden- UPC case. Not usually dealt with by statutes. Texas is in accord with this case.
The will contestant could have demanded a jury trial. You can have all sorts of eccentricities, but if
you pass the test, you’re ok (watch out for juries).

2. Undue Influence

Result (causation), Opportunity, motive,(behaviors) and susceptibility (effect).

Three categories of UNDUE INFLUENCE factors (goes to volition)—Have to prove all.
 Behavior of Influencer
o Motive: Influencer has to have a reason to influence the T (usually not hard to show b/c I—or
someone close to I—gets something out of the will)
o Opportunity for Influence: If the influencer had no opportunity, then undue influence is hard to
prove.
 Effect on Testator
o Susceptibility: Weakened intellect; some reason why this particular T is prone to UNDUE
INFLUENCE (old)
o Confidential relationship: Something more than mere strangers (easy to show: attorney/client—in
this case, there may be a statute that says that the bequest is void if the atty gets anything).
Relationship of TRUST. Doesn’t have to be fiduciary relationship, but if a relationship of trust,
may be deemed a confidential relationship.
 Causation: Influencing has to cause the disposition in the will; if the influence doesn’t actually change
anything in the will, then no Undue Influence
o Connection between what the T did and the influencer tried to get T to do
o Unnatural disposition: Varies from the usual standards of who people leave their property to.
(E.g., if you only have one child and no spouse and you leave everything to the child and the
child influenced you to do this, court will probably leave it alone and probate the entire will b/c
that is not unnatural.)

In most states: if you can establish some or all of these, BOP shifts to will proponent to show an absence of
them.

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 TX: Go further. Even if you can show all of these factors, may not get you to UNDUE INFLUENCE.
Texas very strict. Have to show influencer substituting his will for that of the T’s.

Texas Probate Code § 58B. Devises and Bequests That Are Void
(a) A devise or bequest of property in a will is void if the devise or bequest is made to:
(1) an attorney who prepares or supervises the preparation of the will;
(2) a parent, descendant of a parent, or employee of the attorney described by Subdivision (1) of this
subsection; or
(3) a spouse of an individual described by Subdivision (1) or (2) of this subsection.
(b) This section does not apply to:
(1) a devise or bequest made to a person who:
(A) is the testator's spouse;
(B) is an ascendant or descendant of the testator; or
(C) is related within the third degree by consanguinity or affinity to the testator; or
(2) a bona fide purchaser for value from a devisee in a will.

UNDUE INFLUENCE…
 Requires volition (not competency)
 Some kind of persuasion, manipulation going on that is equivalent to psychological domination or
coercion (advice is not enough).
 Influencer substitutes his or her will for that of the T.
 T, in an uninfluenced state, would want estate to go to A, but under influence, decides to make it go to B.
Makes T do something that they really don’t want to do. Not enough to convince through a rational
process, but rather, substitute someone else’s will for theirs.
 REMEDY: Strike the portion of the will that results from the UNDUE INFLUENCE. That portion goes
to the residuary beneficiary if that person wasn’t involved in the UNDUE INFLUENCE, or to the heirs.
o Some circumstances in which the will is so tainted, that the court will strike it entirely. (Same for
insane delusion.)
o If there’s not residuary clause, then goes to T’s heirs, as if in intestacy.
o Court may also decided not to probate will & turn it into constructive trust
 Proof of undue influence: CL, can be proved through inference/circumstantial evidence – four things to
prove:
1. The T was susceptible to undue influence
2. That the influencer had the disposition or motive to exercise influence
3. That the influencer had the opportunity to exercise undue influence AND
4. That the disposition is the result of the influence
o Sexual relationship & not married = suspicion of deceit – admissible as undue influence proof
o Defense: beneficiary was “a natural object of T’s bounty” – especially if he was close to her and family
was not
o Burden: Burden shifts from person opposing the will who claims there is undue influence to the person
who is seeking to inherit and is suspected of undue influence once sufficient proof is put forward.
No contest clauses
 Majority: enforce no-contest clauses unless there is probable cause for the contest (UPC & RST)
 Minority: enforce unless there is an allegation of (1) forgery or (2) subsequent revocation by a later
will or codicil or (3) the beneficiary is contesting a provision benefiting the drafter of the will or a
witness
 Texas  Will not uphold the clause when the will contest for good cause.

Bequests to attorneys

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 CL: Presumption of undue influence if attorney gets a gift in a will, unless he’s related. Must
overcome this presumption by CCE. (How closely related depends on the jurisdiction.)
 Using the word “said” in a will creates the presumption that the atty wrote the will rather than the T.
 Ct may strike without getting into whether factors satisfied.

Texas law on undue influence & bequests to attys: automatically void (other jurs. don’t have bright line
rule, just a presumption)
 Bequest to an atty: In Texas, if a bequest is to an atty or close relative to an atty, who prepares or
supervises the will, then the will is void b/c Rules of affinity & consanguinity say that T cannot
leave anything to your lawyer or L’s family member unless T related to L.
o Affinity: Related by marriage (sister-in-law, e.g.; but not related by affinity if related by more
than one marriage, so not related in affinity to your sister-in-law’s brother-in-law.) Only one
marriage intervening between T and L.
 Gifts are void if go through more than 2 marriages.
o Consanguinity: Blood relative
 Exception to the bequest to an atty rule: If the beneficiary is related to the T as a spouse or if
descendent or ancestor, or a person related within third degree by consanguinity or affinity (marriage)
 will not void.
o If there’s no family relationship b/w lawyer and clt, it voids the bequest to the lawyer and the
lawyer’s spouse, children, and employees.
o Ex. Mom has Henry, who is married to Laura. Dad has Bart who is married to Wanda. If
Laura drafts the wills for Bart and Wanda, and they leave Laura a gift  the bequest from
Wanda to Laura will be invalid b/c Laura is NOT related to Wanda close enough. The
bequest from Bart to Laura is valid, b/c close enough related.
 Test in Texas for undue influence (tougher in Texas than under the UPC, less likely to find
UNDUE INFLUENCE):
o Six factors above
o Must also prove that the influencer substituted his will for that of the T (stricter std than most
states).
 Basically, this is whether such control was exercised over the mind of the T as to
overcome her free agency and free will and to substitute the will of another, so as to
cause the T to do what she would not otherwise have done but for such control.
o No burden shifting in Texas – person opposing will must prove this test of undue influence.
 Jones v. Krown- Testator left her estate to a paralegal that worked in the lawyer's office. The will is
contested by the testator's sister. The bequest is void because it violates a Texas Statute. It does not
matter if you are an independent contractor, you are still employed by the attorney. Give employee
its plain meaning. She got paid wages. The trial court rules for the paralegal. Appellate court
reverses.

CLASS HYPOTHETICAL
Mom and Dad have two children (Bart and Henry). Henry is married to Laura. Bart is married to
Wanda. Wanda and Laura are attorneys.
Is the bequeath from Bart to Laura allowed? OK
Bart’s bequest to Henry? Bart and Henry are brothers so that is allowed. OK
Wanda bequeset to Henry? OK. Sister-in-Law to Brother-in-Law.
Wanda to Laura? NOT OK. They are not directly related.

Estate of Lakatosh
 Facts: Elderly woman in poor health and young man helps her. Her intellect was “weakened.” He
gets her power of atty and suggest an attorney for her that he was related to.
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 Holding: Clear example of undue influence. Four requirements of undue influence were met. There
was (1) a confidential relationship w/ motive (2) there was opportunity, (3) beneficiary w/
confidential relationship received the bulk of the estate, and (4) T’s intellect was weakened –
susceptible to undue influence. The young man, (beneficiary) could not overcome the burden of
undue influence (which had shifted to him), so the court refused to admit the will to probate and they
imposed a constructive trust as a remedy (he had to pay back what he stole).
o Beneficiary should have argued he was a “natural object of her bounty” since he’d been helping her
out and her family had not.
o She should have revoked power of atty beforehand!
o The attorney here was the guy’s second cousin. Independent lawyer would have been a better
idea.

Lipper v. Weslow—TX law

Texas Court of Civil Appeals, 1963
369 S.W.2d 698
 Texas has a right to trial by jury in probate cases. Juries are more likely to decide with the will
contestants.
 T had 3 husbands; 1 son by first marriage, 2 kids in second marriage; no kids in last marriage.
 Grandkids of first son are challenging the will. She left everything to the 2 children of first marriage.
 T and her attorney were able to anticipate that there may have been litigation over this will; she had
explained why she was cutting out the grandchild.—Son wrote the will and put language to help prevent
being overruled
 Checklist:
o Had motive, opportunity, a confidential relationship
o Not sure about susceptibility, connection, unusual disposition
 Not enough; she was in strong mental and physical condition. Stricter TX rule.
 Have to prove that he defeated the volition of T and substituted his own.
 Texas is tough…have to prove the basis or UNDUE INFLUENCE.
 May be good to have a high standard if you must prove something else in addition to these factors.
 Holding: Will stands and will be probated. Even though there was evidence of the six factors in TX
above, there was lots of testimony that she knew what she was doing and that she purposely didn’t want
to leave those grandkids anything. (her judgment was not substituted for someone else’s)
 Rule: Undue influence is shown when such control was exercised over the mind of the testator so as to
overcome his free agency and free will and to substitute the will of another so as to cause the testator to do what
he would not otherwise have done but for such control.
 Tate: Would not have put the explanation in the will of why she was leaving out the grandkids. Would
have had T write this in a separate document, not integrated into the will, and have T express it in her
own words—don’t have the attorney write it for her, but make sure that it reflects her own words.
o Don’t put in the will b/c that’s a public document and the whole world will know. People more
likely to bring a will contest if they feel they’ve been treated unjustly. Best just to document this
and hold it until it’s needed (if at all).
 No-contest clause didn’t prevent this b/c people not getting anything were the ones contesting it.
 If it gets to a jury, they often ignore the legal test

In re Will of Moses
Supreme Court of Mississippi, 1969
227 So.2d 829

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 Facts: T left almost all her property to her atty Holland (who was her younger lover and friend),
though another atty wrote the actual will. Will atty was independent, but all he did was write the
will, didn’t really give advice.
 Holding: Will atty just a scrivener, not really independent advice! There was undue influence,
denied probate.
 Rule: A presumption of undue influence arises when an attorney with whom the testator had a
continuing fiduciary relationship is a beneficiary under the will, which is not necessarily overcome
simply because the will was actually drawn up by an independent attorney with whom the testator
consulted on his or her own.
o Opportunity, motive, suspicious circumstances, etc. just set the stage, but these are factors
which are given weight
 Dissent: The dissent is better reasoned. There’s no proof that the atty/lover even knew the will
existed! She was competent, acted of her own free will and accord, and disposed of her property how
she wanted – and that “suspicious circumstances” are not enough.
o Tate: Male bias. The opinion says “pathetic hope that he would marry her.” Case may have
been different if woman was younger and the man was older!
o Texas: In TX, this will would still be probated, would probably find that the atty did not
substitute his opinion for the opinion of her. TX, under Lipper and now, would not have
found undue influence.
o No contest clause is effective in Texas if there is not probable cause to bring suit.

3. Fraud
Get T to do something that wouldn’t otherwise do/change T’s intentions.

Undue Influence vs. Fraud:

 Fraud involves a misrepresentation/deception on part of the person committing it; similar to UI.
 Doesn’t have to involve pressure (like UI).

Four elements:
1. Behavior (fraudulent act/actus rea)
2. Mens rea (with intent to defraud)—if an innocent misrepresentation (mistaken that X is dead) with
no intent to defraud T, no fraud. But if misrepresent with intention to deceive and defraud, then
fraud.
3. Effect on the T; reliance (T does something based on the lie)
4. But-for causation: Has to result in a different disposition than what T would have otherwise done.

Two Kinds of Fraud:

1. Fraud in the Inducement: (Change the nature of the gifts) Persuade T into doing something with
their estate that they wouldn’t otherwise do. Thwarting T’s intentions. Examples:
a. Make T not make a will
b. Make T not revoke will
2. Fraud in the Execution/Factum: (Misrepresenting the will’s contents or nature of the document as a
will.) Thwart someone’s intention by making them do something they don’t know that they’re doing.
Think that T is leaving everything to X, but actually giving to Y. Changing T’s intentions.

Fraud can result in….

 A specific provision of the will being written in a specific way
 The revocation or modification of an existing will
 The failure to make a will at all.

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Remedy:
 If affects part of the will, then just strike that part (will go to residual beneficiary or the heirs). But if
entire scheme so tainted by fraud, then entire will struck down/revoked and estate will pass through
intestacy. OR
 Heirs are entitled to a constructive trust over so much of the assets as exceed what W’s intestate share
would have been.

Puckett v. Krida
1994 Tenn. App. Lexis 502 (1994)
Woman with Alzheimer’s. Nurses convince her that her family is taking her money and want to put her in
nursing home. Neither is true. Alzheimer’s lady executes will and deed to nurses. Fraud in the inducement.
Tricked her as to who she wanted the property to go to.

Texas law
 Fraud does not need pressure to constitute influence
 Texas allows punitive damages if fraud is proved
Problems p. 188-89:
1. Husband asks Wife for his will b/c he wants to revoke it. Wife sets envelope on fire pretending
it contains the will. Will not actually revoked. W probates the will after H’s death, under
which W gets the entire estate. What result?
She misrepresented that she revoked his will and that the envelope contained the will. She induced
him not to do something. OMISSION. Not doing something that the T would otherwise do. (Tate
says this is fraud in the inducement.)
2. Tom’s first will devised everything to Jay. Second will devised everything to Chris. Evidence
that C told T in the hospital that J had died, knowing that J was still alive. So T changed will
giving everything to C. What result?
There’s fraud there. Was there the mens rea requirement? Yes, b/c C knew J was alive when she
told T that.

4. Duress
Threatening with something. Involves force or threats to get someone to change his or her intention with
regard to their property.
 Species of undue influence,
 Defined as “force or threats.” (UNDUE INFLUENCE does not necessarily involve stress or threats.)

A donative transfer that is the product of threats to perform or the performance of a wrongful act that coerced
the donor into making a donative transfer that would not have otherwise been made.

Remedies…
 Revoke the will
 Revoke the affected portion
 Use of a constructive trust…
 If the duress resulted in the failure to make a will, then a constructive trust can be created by a court
to prevent unjust enrichment.
 Texas  A constructive trust can be used to prevent unjust enrichment when a person stands to
inherit because of a wrongful act… The person does not have to be the perpetrator of the wrongful
act, just has to benefit from the act.

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Latham vs. Father Divine

Court of Appeals of New York, 1949
299 N.Y. 22, 85 N.E.2d 168
 Facts: relatives of T contested will b/c she left whole estate to Father Divine (cult leader) and his
followers. Claimed duress consisted of false misrepresentation, physical force, murder! B/c of these
things she allegedly did not execute a subsequent will, even though she had made statements that she
wanted to. Πs were cousins, not next of kin or heirs, so would not take under intestacy.
 Case is about the remedies—what to do when someone interfered with an unexecuted will?
 First will left property to wrongdoers. Second one (not executed) leaves property to the Ps.
 Holding: Rather than give property to the heirs (what normally happens if will invalidated), gave to
beneficiaries under unexecuted will. Believes that had it not been for the duress (but-for), Ps would have
gotten it. Would have been unjust enrichment for wrongdoers to get it.
 Problem: Not sure that this will would have been executed. D might have changed her mind.
 Tried to draw similarities to Popov case in property.
 Holding: Crt imposed a constructive trust in equity for π’s b/c crt cannot go as far as construe a will or
probate a will that has not even been executed.
 Rule: Where a testator is prevented form executing a new will in favor of an intended beneficiary by the
fraud, duress, or undue influence of a present beneficiary or heir, the property intended to go to the new
beneficiary will pass to the present beneficiary subject to a constructive trust in favor of the intended
beneficiary.
 Constructive trusts: Equitable remedy. Avoids violating the wills act and is the fairest option
oftentimes. It prevents unjust enrichment when people commit wrongful acts. Focus is on the people
who stand to inherit more than on the wrongful act itself.
 Can’t probate will that would have been but for duress, but constructive trust/restitution helps

Pope v. Garrett
211 S.W.2d 559 (Tex. 1948)
 Carrie Simmon’s expectant heirs kept her from executing a new will in favor of her friend by physical
force and creating a disturbance.
 The court established a constructive trust in favor of the friend. Not only was it against the heirs who had
participated, but also against the innocent heirs. The court found that it would be unjust enrichment for
any heir to receive property that they would not have received without the duress.

5. Tortious Interference with Expectancy

 A tort cause of action (not a will contest) for the interference with an expected inheritance or gift.
Test for tortious interference, Π must Prove:
1. existence of an expectancy
2. reasonable certainty that the expectancy would have been realized but for the interference
3. intentional interference with that expectancy
4. tortious conduct involved with the interference AND
5. damages
Most jurisdictions require probate remedies to be inadequate (ie. Statute of limitations has run)

Marshall v. Marshall
275 B.R. 5 (C.D. Cal. 2002)
 Facts: Anna Nicole Smith, 24, married Marshall, 84, applied TX law even though it was in CA dist.
crt; alleged son interfered w/ lifetime gifts that M would have made to ANS (instead of interference
w/ an inheritance claim)

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 Holding: Court said that interference with a lifetime gift is basically the same as interference with a
will – thinks TX SC would have held that way.
o But, Tate says interference with lifetime gift is less egregious – can negotiate since person is
still alive! Interference can be pointed out. But, if donor dies before interference is
discovered (as in this case) – so this is hard to distinguish! TXSC would have held in favor of
ANS probably.
o 9th Cir. reversed for jurisdiction reasons and US SC will hear the case now
This is not a will contest since it is about interfering with a lifetime gift.

Texas – has recognized tortuous interference with expectancy as it relates to inheritance… however, it is
unclear whether courts would recognize such a cause of action for inter vivos gifts….

F. Problems of Interpretation
1. Mistaken or Ambiguous Language in Wills
2. Passage of Time & Changed Circumstances
Death of Beneficiaries
i. Lapse & Antilapse
ii. Class Gifts
b. Changes in Property: Ademption & Abatement
1. Mistaken or Ambiguous Language
How Do You Deal with Extrinsic Evidence?
 Arises in 2 contexts:
o Will is ambiguous: Can consult extrinsic evidence.
o Will is unambiguous, but the person who drafted the will made a mistake, so hard to determine
what T actually wanted. (Trend toward allowing some reformation when clearly mistake.)
 Traditional rule (TX follows): Plain Meaning Rule/No Extrinsic Evidence Rule
 If will is clear/unambiguous, can’t introduce extrinsic evidence.
 Plain meaning of the will cannot be disturbed if no ambiguities.
 Case: Mahoney
 No Reformation Rule: If the will is clear, ct will not reform to explain T’s intent.
 Reformation is an equitable remedy that, if applied to a will, would correct a
mistaken term in the will to reflect what a testator intended.
 The court should not engage in reformation of a will (i.e., looking beyond the
document’s words to see what T meant)… the court is compelled to interpret the
words that the testator actually used, not to interpret the words the testator is
purported to have intended.
 Reason for rule:
o We don’t want judges to try and figure out what they meant.
o This would bog down system, open floodgates to all sorts of will
challenges.
o Don’t want to disregard words of will b/c that could substitute living
people’s views for the T’s view.

 Equivocation: There are 2 people who meet the description in the will; e.g., two cousins named Mary;
“to the hospital in Dallas.” Can admit some evidence to show who takes this property.
o Plain-Meaning Rule at odds with rules regarding competent volition. When CV issue, have no
problem disregarding language of will and thinking about what T actually intended. Also, runs

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counter to doctrine of DRR b/c take into account. And with revocation by operation of law; and
with patent ambiguities
o Trend of the law is going toward bringing in extrinsic evidence.
 Openly Reforming Wills for Mistake: Erickson, Fleming

Effect: Effect:
Lack of Volition Mistaken Terms

Cause: Undue Influence, Duress Fraud

Intentional Wrongdoing (relief granted) (relief granted)

Lack of Capacity, Insane

Cause: Mistake
Delusions
Innocent Acts (no relief)
(relief granted)

Exceptions:
o Personal usage exception - if T refers to someone by a nickname, then that person gets the gift.
o Scrivener’s Errors: If a scrivener’s error has misled T into executing a will on the belief that it will be
valid notwithstanding T’s subsequent marriage, extrinsic evidence of that error is admissible to establish
the intent of the testator that his or her will be valid notwithstanding the subsequent marriage
 Should be able rebut presumption of no reformation if mistake by scrivener or 3rd party
 Mistake of law is the scrivener’s fault and not T’s mistake
o Sometimes “all personal property” has been taken to mean real and personal property.
o Patent ambiguities - ambiguity appears on face of will - some jurisdictions allow extrinsic evidence
 Note: Evidence of circumstances (like where T went to college) are more persuasive then
statements since those can be easily fabricated.
 %s to beneficiaries do not add up  will need EE
o Latent ambiguities – ambiguity not on face but manifests itself when terms are applied - oral
declarations of intent are often admitted as extrinsic evidence.
 Ex. named wrong person in will b/c screwed up middle initial
 Minority of jurisdictions only let EE clarify latent ambiguities. Patent ones cause the devise to
fail.
o HYPO: Devise to University of Texas known as TCU. Might think they’re the same thing.
How do you resolve this ambiguity? Look to extrinsic evidence. What kind of evidence
would be dispositive?
 Pres of TCU could claim that T told him that he was going to leave his property to TCU.
But might appear that T wanted it to go to UT. How to resolve?
 If an uncorroborated oral statement, given less weight than circumstances. Easy for
someone to claim that T said something. But if corroborated by credible witnesses or if
there was a document in which T said that he intended to make a gift to TCU, might have
more weight than just the fact that he wanted it to go to UT.
Texas law on mistakes and ambiguities
 In Texas, patent and latent distinction is disregarded. Cannot reform a will because of the plain
meaning rule.
 Extrinsic evidence is not allowed in if will is unambiguous
 EE allowed to show T lacked testamentary intent. If no testamentary intent – NO valid will.
 falsa demonstratio non nocet applied in Texas – see Arnheiter case below

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Falsa demonstratio non nocet—“Erroneous description does not injure”

Arnheiter v. Arnheiter
Superior Court of New Jersey, Chancery Division, 1956
42 N.J. Super. 71, 125 A.2d 914
Applies rule against reformation. When a person or property is given a particular description, court will
strike the false description and look to extrinsic evidence to establish what the thing or person actually is.
Three-step process:
o Look to EE to establish that there’s a false description
o Then strike false description
o Go back to extrinsic evidence to find out what the thing/person is.
 Will refers to 304 Harrison Avenue, but T actually owned 317 Harrison Ave.
 Why court cannot just change the address: Because under PMR, cannot just re-write something in the
will. Court has tricks up their sleeve: “False description does no harm.” Take out the mistake (‘304’,
the erroneous description) and say that if they can determine what is meant by JUST “Harrison Ave,”
then ok b/c can look to extrinsic evidence to find out what was meant by “Harrison Ave.”
 Ct struck 304, then went back to EE to determine what property on Harrison Avenue that T owned.
 TX follows this principle

Mahoney v. Grainger
Supreme Judicial Court of Massachusetts, 1933
283 Mass. 189, 186 N.E. 86
 Facts: In her will, T said “heirs at law” term which meant her aunts, rather than all her 25 first
cousins.
 Holding: Cousins did not take and the crt ruled in favor of the aunt. (Mass. is unusual – counts
relatives in degrees. Aunts are in 3rd degree, cousins are 4th degree.) No reformation rule applied.
o Straight application of plain meaning! Court has to probate will as written.
o Tate: Aunt is unjustly enriched here in a way, thinks there is a good case for reformation here.
Heirs at law is unambiguous in law, but it may not be clear to ordinary people though – so it is
sort of ambiguous. Under crt’s reasoning, it doesn’t matter what most people think – this is a
legal term with a clear legal meaning.
o Texas: In Texas, the cousins would take by representation by the aunt.
 Rule: A will duly executed and allowed by the court must, under the attute of wills, be accepted as the
final expression of the intent of the person executing it.
 Count degrees to determine who the heirs are. Person in the closest degree takes to the exclusion of those
in more distant degrees.

Gilke v. Chambers (older case): Different conclusion. T owned livestock in common w/her son; said in will
that she wanted son to have her interest in the livestock and a life estate in all of her personal property. Ct
concluded that she must have meant by “personal property” all things that she owned outright alone.
Texas has gotten rid of the patent/latent distinction.
Patent ambiguities- cannot admit extrinsic evidence
Latent ambiguities- can admit extrinsic evidence

Can’t revise a will to fix a mistake if no ambiguity, can’t look to extrinsic evidence.
Doesn’t benefit poorly advised testator.

Falsa Demonstratio Non Nocet (a false description does no harm)- steps

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1. Look to extrinsic evidence to determine that description is erroneous

2. Strike erroneous description
3. Look to extrinsic evidence to determine what person or property was actually intended to be
described.
Look to extrinsic evidence or mistake. Take out the mistake. Now go back to the extrinsic evidence to find
out what the testator was actually talking about. You write Sarah Jane Parker, but you mean Sarah Jessica
Parker (no extrinsic evidence of knowing a Jane Parker). Strike out Jane and figure out who Sarah Parker is
with extrinsic evidence.

San Antonio Foundation v. Lang

35 S.W.3d 636 (Tex. 2000)
 Holding: Texas court held that the term “real property” is unambiguous and extrinsic evidence cannot
be admitted to show that personal property was supposed to be included. Distinction matters in
jurisdiction that allow EE.

Erickson v Erickson
Supreme Court of Connecticut, 1998
246 Conn. 359, 716 A.2d 92
 Facts: Couple made sweetheart wills 2 days before they got married, leaving everything to each
other. Atty screwed up and should have made will say it still is in effect even after they actually get
married. In this juris, a subsequent marriage overturns a will. (not true in TX) T wouldn’t have
made a will that lasts just 2 days.
 Holding: EE permitted. Court reforms will.
 Rule: If a scrivener’s error has misled the T into executing a will on belief that it will be valid
notwithstanding the T’s subsequent marriage, EE of that error is admissible to establish the intent of
the T that will be valid notwithstanding the subsequent marriage.
o Policy reasons: (1) no difference between fraud and a scrivener’s mistake – both have an
outside party that messes up T’s intent, (2) risk of defeating intent if you refuse to look
beyond the will, (3) presumption is rebuttable, (4) k law shows that risk of groundless will
contests is not great, (5) Ts have not relied upon prior law.
o Texas: subsequent marriage does not overturn a will entirely, just revokes will to extent that
the surviving spouse would get under intestacy. Can overcome this presumption though.
 Most jurisdictions:
o 1: If wife already got intestate share in the will, then ok.
o 2: IF makes some disposition for the surviving spouse, and that the T intended for that spouse to
get that property, then that’s what the spouse gets.
 RULE: Whether a will provides for the contingency of a subsequent marriage must be determined:
 1. From the language of the will itself
 2. w/o resort to extrinsic evidence of T’s intent
o In Conn. Junior Republic v. Sharon Hospital (CONN. SUPREME COURT CASE), held that
extrinsic evidence of a mistake was not admissible in a proceeding to determine the validity of the
will. BUT, this court overrules there own holding and says that if an atty’s error misled the T
into executing a will on the Belief that it will be valid after his marriage, then extrinsic
evidence of that error is admissible to show T’s intent. Standard: CCE.
 Dissent’s reasoning in Ct. Jun. Rep., analogizes fraud, duress, and UI. 3 reasons:
 1: No discernible policy difference between a will executed by T through fraud,
duress, and UI as one made in reliance on erroneous belief induced by innocent
error/misrep by T’s attorney. Plus, extrinsic evid. Is the same: third person

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distorted the will process by misleading the T into executing a will that he would
not have otherwise executed.
 2: Risk of blindly enforcing a testamentary disposition that substantially misstates
T’s true intent.
 3: Although signing a will creates a strong presumption that the will accurately
represents T’s intent, it is rebuttable through extrinsic evid. Plus, slippery
slope/parade of horrors/floodgates argument rebutted by saying that the parol
evidence rule in K law hasn’t been unmanageable and this rule will require the
same elevated BOP.
 PP: Shouldn’t thwart T’s intent just b/c attorney made a mistake.
o Class: Court decided to rule that you can correct a scrivener’s error if evid that the atty made a
mistake. Offered several reasons for this; Tate thinks all mistakes should be corrected, not just
scrivener’s errors, but that’s not what this court decided.
 TX doesn’t correct scrivener’s errors unless ambiguous or unless doctrine of falso
demonstration applies.

Can this apply to other kinds of mistakes? (Like someone told you your brother was dead.) Tate says that the
floodgates argument might be different; malpractice premiums will go down in Conn.

Estate of Gibbs
111 N.W.2d 413 (Wis. 1961)
 Issue: Will gave property to a friend, but the will stated Robert J. Krause. The friend was supposed to be
listed as Robert W. Krause at a different address.
 Holding: Let have the real friend have it.
 How can courts do this? The will was unambiguous. Isn’t the ct re-writing the will to fit what they think
T wanted.
 Reasoning: Formalism in action. Don’t want it to appear obvious that they are violating the PMR.
 Recognized in TX and applied in will-construction cases. Will left $1,000 to Sarah, the child of my
cousin Julia. Actually, Julia had no daughter, but a son, Samuel. Can strike “Sarah” and then go to EE
to see that it’s actually Samuel.
 Holding: court corrected mistake, despite affirming the rule against reformation of a will (contradiction)

UPC 2-805- Reformation of the will (also in Restatement)

Mistake of fact or law, standard is clear and convincing evidence (like harmless error rule)
Helps poorly/non-advised testator
Limitations (in comment): must be mistake at or before the will was executed
Tate thinks it won’t be adopted in Texas.

Fleming v. Morrison—WE CAN SET ASIDE AN ENTIRE WILL BASED ON EXTRINSIC EVIDENCE
BUT NOT CORRECT ON EXTRINSIC EVIDENCE
72 N.E. 499 (Mass. 1904)
 Facts: Guy wanted to sleep with this woman. He had his lawyer draft a fake will and left estate to
her. Told atty it was fake (unethical action by atty). Atty could have torn will up or tried to retrieve
it.
 Holding: “Will” not probated b/c (1) T lacked the 3 necessary witnesses to T’s testamentary intent,
(2) Atty’s testimony allowed in to show it was a sham, and (3) T lacked testamentary intent.
o Texas: Rule in Texas, like Mass., is that EE can be offered to show T lacked testamentary
intent. Can show will was a sham.

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o Tate: Lady can’t sue atty for fraud since this was not fraud on the T, it was fraud against a
beneficiary. Atty should be estopped by giving testimony since court is effectively allowing
him to perpetuate the fraud. But, testifying in court is not an act.
 Reformation is more dangerous than invalidation. This is the law in TX.
 Shields v. Shields (1937): T made a will just so that he’d be inducted in a secret society.
 Public Policy against exchanging money for sex.
 Atty should have confiscated the will when he learned of the fraud.
 CLASS: Court looked to extrinsic evidence to show that the will lacked testamentary intent.
o TX court would have done the same; can look to extrinsic evidence to correct a mistake.
More room for courts to be creative if you’re letting them make small changes as opposed to
throwing out the will.

2. Passage of Time & Changed Circumstances  Problems with Interpretation

a. Death of Beneficiaries

i. Lapse & Antilapse Casebook: 387-93, Ex.12 (TPBC § 68)

Texas Probate Code § 68. Prior Death of Legatee
(a) If a devisee who is a descendant of the testator or a descendant of a testator's parent is deceased at the time
of the execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the
testator by § 47 of this code or otherwise, the descendants of the devisee who survived the testator by 120
hours take the devised property in place of the devisee. The property shall be divided into as many shares
as there are surviving descendants in the nearest degree of kinship to the devisee and deceased persons in
the same degree whose descendants survived the testator. Each surviving descendant in the nearest degree
receives one share, and the share of each deceased person in the same degree is divided among his
descendants by representation. For purposes of this section, a person who would have been a devisee
under a class gift if the person had survived the testator is treated as a devisee unless the person died
before the date the will was executed.
(b) Except as provided by Subsection (a) of this section, if a devise or bequest, other than a residuary devise
or bequest, fails for any reason, the devise or bequest becomes a part of the residuary estate.
(c) Except as provided by Subsection (a) of this section, if the residuary estate is devised to two or more
persons and the share of one of the residuary devisees fails for any reason, the residuary devisee's share
passes to the other residuary devisees, in proportion to the residuary devisee's interest in the residuary
estate.
(d) Except as provided by Subsection (a) of this section, if all residuary devisees are dead at the time of the
execution of the will, fail to survive the testator, or are treated as if they predeceased the testator, the
residuary estate passes as if the testator had died intestate.
(e) This section applies unless the testator's last will and testament provides otherwise. For example, a
devise or bequest in the testator's will such as "to my surviving children" or "to such of my children as
shall survive me" prevents the application of Subsection (a) of this section.

UPC § 2-605. Antilapse; Deceased Devisee; Class Gifts. (1969)

If a devisee who is a grandparent or a lineal descendent of a grandparent of the testator is dead at the time of
execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of
the deceased devisee who survive the testator by 120 hours take in place of the deceased devisee and if they
are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of
more remote degree take by representation. One who would have been a devisee under a class gift if he had
survived the testator is treated as a devisee for purposes of this section whether his death occurred before or
after the execution of the will.

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 Ruotolo v. Tietjen- Testator left one-half the residue of his estate to his stepdaughter who died 17 days
before him. Conn has an antilapse statute. Lower court said antilapse does not apply because of the
words if she survive me.” Appellate reverses. Antilapse statues will apply unless testator's intention to
exclude it operation is shown with reasonable certainty. The statute was enacted to prevent lapse. Lapse
should only occur when the trier of fact determines the testator wanted to disinherit and entire line.
Testator could have provided for a lapse or an alternative devise. Statue is remedial in nature and given
liberal construction. “ The parties did not raise the no-residue of the residue rule revisited. The result
would be the same under the UPC but not under Texas. UPC antilapse applies to step-children but Texas
statue does not. Be precise in drafting your will. The testator here could have prevented the problem by
providing for an alternative devise or saying to A, but not A's heirs.
 Class gift- look to the antilapse statute to see if it applies. Then, if the antilapse statue does not apply,
look to the class gift rules.
 Dawson v. Yucus- Ms. Stewart left her husbands farm to her two nephews from his side. Gene died
before her. Trial court admitted extrinsic evidence. Trial and appellate court held this was not a class
gift. Gene's children are in dispute with the residuary of the estate who is not part of the family.
Testator's husband has two other nephews and a niece. Antilapse does not apply under UPC or Texas.
Testator named the nephews and individuals and allotted a portion to each.
 Sister A, B, and C. C dies before the will. A dies after the will. Under UPC everyone gets 1/3. Texas C
is treated differently. C's children do not take. Her portion is divided among As children and B. If this
was not a class gift the antilaspe statue would apply.

 CL Lapse
o Death of a beneficiary causes the devise to fail and the property went either to the residuary clause or
went into partial intestacy.
 Antilapse
o Allow the devise to be given to the decedents of the deceased beneficiary
 TPC § 68
o The deceased beneficiary must be a decedent of the testator OR a decedent of his parents (not
directly to his parents) for the antilapse statute to apply.
o Otherwise, it lapses into the residuary clause or into partial intestacy.
 UPC § 2-605 (1969)—APPLY THIS VERSION OF UPC
o The deceased beneficiary is a grandparent or lineal decedent of the grandparent of the testator
the antilapse statute applies…
o Otherwise, it lapses into the residuary clause or into partial intestacy.

Class Hypothetical
Tate leaves $1000 to aunt. Rest to his brothers. And Remainder to Parents. Aunt Predeceases Tate.
What result?
This is a general devise. The aunt’s children do not get the $$.
--TX Law—Goes to my brothers
--UPC—Goes to my Aunt’s children.

Anti-lapse statutes
 General lapse rule: If beneficiary dies before the T, then the devise fails (“lapses”).
o E.g., $1000 to aunt, rest to bros.
 Passes to residuary beneficiary, and then to heirs.
 Anti-lapse: States have enacted anti-lapse statutes that, under specified circumstances, substitute
another beneficiary for the predeceased beneficiary. The statute will provide for another individual

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(usually issue of the deceased) to take instead of going to whomever the common law provides.
Anti-lapse statute doesn’t apply if the person in the class died before the will was formally executed
(instead of dying just before the T’s death).
 It’s easy to get around anti-lapse statutes, by specifying that a bequest is to “surviving children” or
“such children that survive me” or some other general devisee.
 Four types of default rules that apply if will does not provide what happens when beneficiary dies
before the T:
1. specific or general devise – if specific or general devise fails, then devise goes to residue
2. residuary devise/no-residue of a residue – if a person allotted the residuary dies, then the heirs
of T take that portion (not another person in the residuary). Pass to heirs, not residuary benefits.
Doesn’t apply to class gifts; so if property left to kids in residuary and a child dies before T, then
pass under CL rule. Abrogated in TX, so not of practical importance here.
3. class gift – if devise is to class and one member dies, then remaining members of the class divide
the gift
4. void devise
a. beneficiary dead at time will is executed
b. devisee is dog or cat or another ineligible taker
c. CL = devise goes to heirs (not other devisees)
d. TX = devise goes to other devisees (not heirs)

Texas v. UPC
 Texas: Dead beneficiary  devise goes to descendent of parents.
o Ex. In Texas, if a guy leaves $1000 to his brother and he predeceases T, then children of both
brothers take. But if bequest was to aunt, her children would be cousins (thus, not
descendents of parents), then the residuary would take instead of the cousins.
o Void devises go to other devisees and not other heirs (diff than CL) TPBC § 68(c)
 UPC: Dead beneficiary  devise goes to descendent of grandparents. (encompasses more people)
 Reasoning is that you would want your estate to go to relatives who are closer to you!

Why do these statutes only apply to close relatives of T? Why not when any gift lapses, it goes to B’s kids?
 Casebook authors think that Anti-lapse statute should apply to all beneficiaries and not just those who are
relatives of T.
 Easy to get around these statutes. If you say, “To my son if he survives me,” or “to my surviving
children.” This normally prevents anti-lapse statute from being applied. But need to be careful and
specific.

Estate of Russell
Supreme Court of California, 1968
444 P.2d 353
 Facts: left estate to friend and her dog (that died in 1958). Did not leave anything to her only heir-at-
law, her niece. D (friend and other beneficiary) argued he was supposed to get entire estate and use it
to take care of the dog.
 Proc: P = T’s niece (only heir); TC found that T meant to leave all to D
 Holding: Reverse TC. Devise to dog is void, so it goes to her heir.
 Rule: When an uncertainty arises upon the face of a will, it cannot always be determined whether the
will is ambiguous or not until the circumstances surrounding the writing of the will are first
considered.
 Tate: Will does not say the will leaves ½ stuff to friend and ½ stuff to dog like court insinuates. It is
ambiguous to her intent – may have wanted her friend to have all her property and have him just take
care of the dog. (Appellate crt went out of way to find the other way.)

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 TX has abolished the no-residue of a residue rule.

 CL rule relating to the lapse of gifts modified in most states by anti-lapse statutes that prevent the
lapsing of gifts when the beneficiary bears a certain relationship to the testator.
 CLASS: Devise to dog lapsed b/c dog couldn’t take; under residuary of a residuary rule, passed to an
heir.
o Tate says easier if ct had decided that the T wanted the friend to take all property and look
after the dog. Didn’t really want the dog to be a tenant in common w/the friend. But ct
disregarded that argument and instead read will literally as if dog was a beneficiary.
o Most states, including TX have taken the anti-lapse statute route. If the B dies before T,
but is a relative of T, then instead of passing to residuary beneficiary, passes to the
beneficiary’s descendants.

Allen v. Talley
Texas Court of Appeals, Eleventh District, 1997
949 S.W.2d 59
 Will provided that the T gave to her “living brothers and sisters.” The heirs of a deceased brother
claimed that the words were not words of survivorship, so the nieces and nephews were entitled.
 ISSUE: Did that mean at the time the will was executed? Or does that mean at the time of T’s death?
 HOLDING: Court decided it meant when T died. Held there was no ambiguity. Construed will based on
its language.
o “To share and share alike,” court said this implies that T wanted siblings to share after she died.
o Tate thinks this is a stretch.
 RULE: The word “living brother and sisters” in the general provision of a will should be construed as
words of survivorship.
 LESSON: Put a provision that says not just what to do on survivorship, but also what happens if B
doesn’t survive you. Like writing a murder mystery—kill off all the characters and see who’s the last
person standing. Always imagine what might happen if each B in the will predeceases T and decide what
happens in that instance (why charity good idea for last resort).
o “To B if B survives me, and then to C if B does not survive me.”
 REVIEW: Bros and sisters who survived T argue that they should take, and not the nieces and nephews.
Ct held that the ALS didn’t apply. With reference to living bros and sisters meant that only the bros and
sisters who survived T should take, not the descendents of the deceased.
o Tate wants to know if any bros/sisters died before the will was executed. Ct said will
unambiguous.
 That would explain “living brothers and sisters” and thus would make the point void

You can read the word “and” to mean “or.” A reference “to A and his heirs” are usually words of limitation
that just tell you not who, but how (in fee simple). Don’t leave it hanging.

ii. Class Gifts p. 399-402, 404-05

 General rule: If member of a class predeceases T, then property goes to other class members UNLESS anti-
lapse statute applies. If ALS doesn’t apply, just share among remaining class members. But if T is
insufficiently clear in the will as to whether the gift is a class gift.
 Death of a member of the class results in the remainder of the class taking his share
 Exception: if an antilapse statute (ALS) exists in the state, apply that first
 A class gift describes the beneficiaries by the class name. If the class name is given and then the
beneficiaries are also individually named, the gift is not treated as a class gift. The extraneous class
identification is treated as being provided for mere identification purposes.
 Antilapse Statutes apply to class gifts, unless the class member died before the will was executed.

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 Problems arise when people are unclear in wills about whether this is intended to be a class or just
individual.
 Children as part of a class includes adopted children (unless specifically excluded indiv. in will).

RULE: First apply the ALS, then if it doesn’t apply, apply the Class Gift Rule. In tx, don’t apply CG until
will executed (?). A’s children take b/c A died after will executed, so the ALS gives to A’s children, but C’s
kids wouldn’t take b/c C died before will executed. Reasoning: If someone makes a will and has a deceased
sibling and wanted those kids to take, would have put that in the will—anticipated the issue. These are cases
of bad drafting. Shouldn’t ever draft a will where the ALS applies; always include back-up plan.

Texas law on class gifts

 Antilapse statute applies when someone in class dies, meaning the gift to that person is split b/w the
other members of the class (not that person’s children or T’s children!). → Descendent of Testator or
Descendent of Testator’s Parents, then it goes to that person
 Antilapse statute doesn’t apply if the person in the class died before the will was formally executed
(instead of dying just before the T’s death) → Property goes to other members of the class
 If will designates beneficiaries by name, even if it also describes them as a class, the gift is
specifically to the named beneficiaries only.
 Ex. “my grandchildren, X & Y” = Specific devises, NOT a class gift

Hypothetical—Page 404-5
T had 3 sisters, A, B, C.
 C died before will executed. A died after it was executed. B still alive when T dies.
 T conveyed estate to her sisters and the residuary to S.
 UPC: Goes aunt’s because they are descendent’s of the Testator’s grandparents. Does not make any
difference if a devisee died before the will was executed. A=1/3 B=1/3 C=1/3
 In TX: C’s kids cut out—don’t take b/c C died before will executed. Then A’s kids would get half b/c
ALS applies to A. And B would get half.
o Rationale for treating C’s kids differently: PP. If she had meant for C’s kids to get anything,
would have said so in the will. But A still alive. Give effect to the presumed intent of T.
Gamble: If T knew that A was going to die, might have left it to A’s kids. Odd b/c why would T
want property to go to A’s kids and not to C’s? Tate doesn’t know.

Dawson v. Yucus
Illinois Appellate Court, 1968
97 Ill. App. 2d 101, 239 N.E.2d 305
 Facts: T (W) left estate to 2 nephews, whom she named instead of calling them “my nephews.” She
believed the land should go back to her H’s family. H’s children wanted property – but they are not
descendents of the actual T (W), so antilapse statutes do not apply.
 Holding: Not a class gift – did use right language even though she knew how, even though there was
extrinsic evidence that she wanted to leave stuff to H’s relatives
o Under the ALS, these people couldn’t take b/c it only applies to relatives of the T, not
relatives of the spouse, like in this case.
o Tate: T’s intention was not fulfilled when they didn’t receive the property. The court was
wrong – writing the will does not fulfill the T’s intention, the intention is only fulfilled when
the right people get the property – people she designated. The court is thwarting the intention
for no good reason.
o Texas: In Texas, the ALS would not apply since they’re not kids from the parents.
Unfortunately, Texas court could probably agree with this court.

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 Rule: Where the number of beneficiaries to a gift is certain, and the share each is to receive is also
certain and in no way dependent for its amount upon the number who shall survive, it is not a gift to a
class but to the individual.
 CLASS: T’s intent to return the farm to her H’s side of the family was fulfilled in her will. Tate doesn’t
understand this. Her intent is when the property is actually distributed.
 REVIEW: She wanted gift to go to her husband’s relatives. Each beneficiary given ½. Other members
of the class not included in the devise. Hard to see as a class gift. Understandable, but unfortunate
decision.
 TEXAS COURTS: Probably would have agreed with this. If you name individuals, then treated as a gift
to the named individuals, not a class gift. In class gift, don’t name individuals.

b. Changes in Property: Ademption & Abatement pp. 405-15, Exhibit 13

Doctrine of Ademption – destruction or extinction of a testamentary gift by reason of a bequeathed asset’s
ceasing to be part of the estate when T dies/a beneficiary’s forfeiture of a legacy or bequest that is no longer
operative
 Applies to specific devises of property
 A gift of money is considered a general devise not a specific devise, even when the means of
locating/obtaining the funds is described.
 A specific devise of property which is either sold or given away by the testator prior to his death adeems
the devise by extinction… the devise is void.
 Some mechanisms to get around ademption
o A change in form not substance – giving property to a corporation in exchange for stock; a
change in form not substance
In re Estate of Anton- Testators biological daughter took power of attorney after testator was in a car
wreck. Identify theory- if specifically bequeathed property is not found in the estate the bequest is adeemed.
Modified intention-if the testator was incompetent at the time the property was sold, she could not have
intended for it to be sold. If the property was adeemed, Nancy would benefit because the money goes into
the estate she is in charge of.
Class Hypothetical
I leave my son $10K from Bank of America Account #xxx-xxxxxx-B.
General Devise—Because this is a general devise, then the sum can be paid from the assets of the estate.
Gold rolex watch left to my son.
Specific devise—If the testator sold it, lost it, or gave it away before death than the beneficiary gets
NOTHING.

Ademption by extinction: Ademption that occurs b/c the unique prop that is subject of a specific bequest
has been sold, given away, or destroyed, or is not otherwise in existence at the time of the T’s death.
 Applies to specific devises, not general devises. Specific devises adeems, general devises do not.
 If it is a specific gift, and then no longer in T’s estate, then the gift is extinguished/adeemed.

Identity Theory vs. Intent Theory

 Intent theory: if specifically devised item is not in T’s estate, the beneficiary may
nonetheless be entitled to the cash value of the item, depending on whether beneficiary can show that
this is what T would have wanted
 Identity theory: if specifically devised item is not in T’s estate, gift is extinguished
(subject to ltd exceptions)
o Identity is the rule in most states, including Texas
o How to get around the identity rule:

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Courts sometimes get around the rule as construing the devise as a demonstrative gift rather than specific
devise.
 Ex. Bequeath $10k to A to be taken out of a named bank account =
demonstrative gift – just shows where $ might come from, can later come from
another account.
 Also court can get around this when atty argues inter vivos disposition is a change in
form, rather than a change in substance.
 Ex. sold land to a corporation for stock in that corp. is change in form. But, if
T closes bank acct and then gets certificates of deposit – that is a change in
substance.

Texas law on Ademption

Follows identity theory above (not intent theory)

UPC Law on Ademption

 Follows intent theory, not just when the agent sells off property but also if the testator did not
intend for the devise to adeem. But there is a presumption in favor of ademption.
 Burden is on the party claiming the cash value of the specifically devised item that is no
longer in the T’s estate – burden on person opposing ademption
Hypothetical for UPC
T devises “Rolls Royce to John.” Later, T sells RR and buys Ford.
 If John can prove that the Ford is the replacement for the RR, then the Ford goes to John.
 If the beneficiary has the possibility of showing that the testator did not intend for the devise
to adeem…Whether it was intended as a replacement does not depend on the value.
Pg. 389- Wendy has no evidence the testator did not want the property to adeem. She also has the
problem of proving the value. Under identity theory, these items are adeemed.

Stock splits and dividends- does not matter whether it is specific or general under UPC or Texas.
Exoneration of liens- Wills after 2005 the preseumption if the testator intends the mortgage to go with the
property.
Abatement- do not have enough money to pay off everyone under the will. In Texas personal property
abates first, but UPC does not make this distinction.

Wasserman v. Cohen
Supreme Judicial Court of Massachusetts, 1993
414 Mass. 172, 606 N.E.2d 901
 Facts: T stated in document that trustee should convey apartment building property to a certain
person, but T sold that property before she died
 Holding: Since it is specific devise, it is adeemed (extinguished). Focus on identity, not intent
according to this court. Court’s focus was on existence or nonexistence of the property
 Rule: When a testator disposes, during his lifetime, of the subject of a specific gift of real estate
contained in a revocable inter vivos trust, that gift is held to be adeemed by extinction.

Jones Place—TEXAS
Court held that devise of the “Jones place” was demonstrative rather than adeemed – even though it was a
specific mention. T’s purpose was to divide estate evenly b/w daughter and wife. (kind of like intent
approach)

Two broad categories to think about:

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1. Specific devises: Apply doctrine of ademption by extinction. When T dies w/o owning BA, A
doesn’t take a substitute gift. Takes nothing unless given something else in will. CL: Specific devises
are adeemed.
a. But if T says, “I give $10,000 to A,” but doesn’t have the cash, estate has to sell something to
satisfy the bequest.
b. Ademption v. lapse
i. Lapse: beneficiaries not alive when T dies.
ii. Ademption: property not owned by T when T dies.
2. General devises: not adeemed.
a. TX: Identity theory—if spec devise and not in the estate, then no replacement.
i. Get around harsh rule: Construe devise as demonstrative rather than specific.
ii. E.g., case that had a will devising “the Jones Place” to his family, but ct said
that was demonstrative, not specific—T probably just wanted family to have
something of similar value. Tricky.
b. 1990 UPC: B, if they can established that ademption would be inconsistent w/T’s estate plan,
or T didn’t intend for estate to be adeemed, then ok.

Four other issues:

1. Stock splits/stock dividends: Was the devise specific or general?
a. If Specific: Bequest would include any additional stock acquired as a result of a split. (The
person gets only the # of shares specified in the will)
b. If General: Don’t include additions from stock splits. (Person gets all the shares.)
c. This approach abandoned in many places including TX. In TX, both included in a devise of
securities, provided T owned shares. Any increase is included in any ultimate bequest.
i. Doesn’t matter whether S or G. B gets the benefits of the split. (TPC 70A)
d. HYPO: T conveys 100 shares of Exxon stock to A. After split, T owns 200 shares, then A
gets 200 shares.

2. Ademption by Satisfaction: CL—if T gave something to devisee during life, then satisfies a general
request in the will. Same as advancement: Same as CL rules of intestacy when T gives $100 to son,
then subtracted from the hodge pot at the end. Because this similar to doctrine of advancements, then
UPC adopted same as advancements. If you have a document that shows that T meant to subtract it
from beneficiary’s share; absent proof, then no subtraction.
a. Similar to advancements/inter vivos gifts before death.
b. Both UPC & TPC require written evidence of the Ademption by satisfaction (TPC 37C)

3. Exoneration of Liens: Doctrine that if T conveyed Blackacre to A, and there was a mortgage on
Blackacre, then A receives property free of the mortgage, which is satisfied out of the residuary
estate. Mortgage paid off by the residuary beneficiaries if sufficient funds in estate. Most states have
reversed this CL rule so that any devise passes subject to any liens on the property.
a. TX & modern law only applies to wills executed on or after September 2005. Property is
devised subject to the liens (TPC 71A).
b. CL: The mortgage or property was to be transferred by the estate free of any liens. The estate
must satisfy debts owed to clear the liens.

4. Abatement: If insufficient assets in estate to pay off debts and give to devisees, then some devises
abated/extinguished/reduced. How to distribute:
a. TX follows CL rule that the residuary devise abates first, then general, then specific devises.
Last thing to go is BA. First thing to go is the residuary estate. (TPC 322B)

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b. Can lead to unintended consequences: T leaves all to charity and remainder to son (thinking
each will get half), but if T later goes into debt, comes out of son’s share first before charity’s
share b/c son is the residuary and charity gets general bequest. Should say that son gets ½
residuary and charity gets ½ so that they abate together.
c. Avoiding problem: Substantial devises should be written in shares or fractions (ex. ½ of estate
instead of $300k) so gifts adjust automatically in proportion with changing size of estate.
d. Order of people who get screwed out of money/gifts: Residuary devise goes first, then general
devises, then specific devises. Bequests of personal property devise before real property
o UPC: Follow intent of T
 ex. don’t exclude the kids at expense of a charity
Texas Probate Code § 37C. Satisfaction of Devise
(a) Property given to a person by a testator during the testator's lifetime is considered a satisfaction, either
wholly or partly, of a devise to the person if:
(1) the testator's will provides for deduction of the lifetime gift;
(2)
is in satisfaction of the devise; or
(3) the devisee acknowledges in writing that the lifetime gift is in satisfaction of the devise.
(b) Property given in partial satisfaction of a devise shall be valued as of the earlier of the date on which the
devisee acquires possession of or enjoys the property or the date on which the testator dies.

Texas Probate Code § 70A. Increase in Securities; Accessions

(a) Unless the will clearly provides otherwise, a devise of securities that are owned by the testator on the
date of execution of the will includes the following additional securities subsequently acquired by the
testator as a result of the testator's ownership of the devised securities:
(1)
successor, related, or acquiring organization, including stock splits, stock dividends, and new issues
of stock acquired in a reorganization, redemption, or exchange, other than securities acquired through
the exercise of purchase options or through a plan of reinvestment; and
(2)
or other distribution by the organization or any successor, related, or acquiring organization, including
stock splits, stock dividends, and new issues of stock acquired in a reorganization, redemption, or
exchange, other than securities acquired through the exercise of purchase options or through a plan of
reinvestment.
(b) Unless the will clearly provides otherwise, a devise of securities does not include a cash distribution
relating to the securities and accruing before death, whether or not the distribution is paid before death.
(c) In this section:
(1)
Civil Statutes), and its subsequent amendments.
(2) "Stock" means securities.

Texas Probate Code § 71A. No Right to Exoneration of Debts; Exception [applicable to wills executed
on or after Sept. 1, 2005]
(a) Except as provided by Subsection (b) of this section, a specific devise passes to the devisee subject to
each debt secured by the property that exists on the date of the testator's death, and the devisee has no
right to exoneration from the testator's estate for payment of the debt.
(b) A specific devise does not pass to the devisee subject to a debt described by Subsection (a) of this section
if the will in which the devise is made specifically states that the devise passes without being subject to
the debt. A general provision in the will stating that debts are to be paid is not a specific statement for
purposes of this subsection.

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(c) Subsection (a) of this section does not affect the rights of creditors provided under this code or the rights
of other persons or entities provided under Part 3, Chapter VIII, of this code. If a creditor elects to have a
debt described by Subsection (a) of this section allowed and approved as a matured secured claim, the
claim shall be paid in accordance with § 306(c-1) of this code.

Texas Probate Code § 322B. Abatement of Bequests

(a) Except as provided by Subsections (b)-(d) of this section, a decedent's property is liable for debts and
expenses of administration other than estate taxes, and bequests abate in the following order:
(1) property not disposed of by will, but passing by intestacy;
(2) personal property of the residuary estate;
(3) real property of the residuary estate;
(4) general bequests of personal property;
(5) general devises of real property;
(6) specific bequests of personal property; and
(7) specific devises of real property.
(b) This section does not affect the requirements for payment of a claim of a secured creditor who elects to
have the claim continued as a preferred debt and lien against specific property under § 306 of this code.
(c) This section does not apply to the payment of estate taxes under § 322A of this code.
(d) A decedent's intent, as expressed in a will, controls over the abatement of bequests provided by this
section.

UPC § 2-606. Nonademption of Specific Devises; Unpaid Proceeds of Sale, Condemnation, or Insurance;
Sale by Conservator or Agent.
(a) A specific devisee has a right to specifically devised property in the testator's estate at the testator’s death
and to:
(1) 
the testator’s death by reason of sale of the property;
(2) any amount of a condemnation award for the taking of the property unpaid at death;
(3)  any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the
property;
(4) 
lieu of foreclosure, of the security interest for a specifically devised obligation;
(5) 
acquired as a replacement for specifically devised real property or tangible personal property;  and
(6) 
disposition of other specifically devised property disposed of during the testator’s lifetime but only to
the extent it is established that ademption would be inconsistent with the testator's manifested plan of
distribution or that at the time the will was made, the date of disposition or otherwise, the testator did
not intend ademption of the devise.
(b) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the
authority of a durable power of attorney for an incapacitated principal or a condemnation award,
insurance proceeds, or recovery for injury to the property is paid to a conservator or to an agent acting
within the authority of a durable power of attorney for an incapacitated principal the specific devisee has
the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the
condemnation award, the insurance proceeds, or the recovery.
(c)  The right of a specific devisee under subsection (b) is reduced by any right the devisee has under
subsection (a).
(d) 
after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator's
incapacity ceased and the testator survived the adjudication for at least one year.

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(e) 
power of attorney an incapacitated principal, (i)"incapacitated principal" means a principal who is an
incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii)  the acts of an
agent within the authority of a durable power of attorney are presumed to be for an incapacitated
principal.

G. Protections Given to the Surviving Spouse/minor children under federal & state law

1. Miscellaneous Rights to Support pp. 419-23, Ex. 14

2 types of support
1. Intent serving
2. Intent defeating

State Law Protections – Texas Property Code § 42.001, 42.002, Texas Probate Code § 271
 Exempt property and Homestead may be set aside for the use and benefit of the surviving spouse and
minor children….
 If the estate is solvent, the Homestead is still set aside, but the exempt personal property is distributed as
devised or via intestacy.
 Homestead Exemption – title passes in the same manner as it would otherwise pass, but the surviving
spouse and children have the exclusive right to occupy the homestead, so long as they chose….
o The surviving spouse must continue to make the mortgage payments….
 Exempt property – up to $60,000 of household goods and other property for a family and $30,000 for a
single adult.

State Law Protection – Family Support Allowance

 Texas Probate Code §§ 286, 287, 288
 Allows the court to set aside a certain amount of the estate to support the family for one year.
 Must be verified by an affidavit describing the amount necessary for maintenance for one year…. To
either the independent administrator or the court.
 Comes from the community estate first, then the personal property of the deceased.
 Funeral and medical expenses trump family support allowance… upto $15,000
 When the surviving spouse has adequate property and resources, no allowance shall be made.

Ways that surviving spouses protected in federal law:

1. Social Security System: Entitled to continue to receive SS benefits based on benefits of deceased spouse.
(Public pension system)
a. Caveat: If surviving spouse also qualifies for SS, then doesn’t get both, but gets the larger of
the two benefits (no double-collecting).
2. Pension System: (Private) If deceased’s retirement play is covered by federal law, then the surviving
spouse still gets pension payments after the spouse dies. Typically make payments only to the retired
employee while he/she is alive, but after his/her death, the surviving spouse normally entitled to
receive benefits if covered under the federal rules (under ERISA).

State-law Protections for surviving spouse/minor children in TEXAS: ½ interest in Community Estate!
1. Homestead/Exempt-Property Laws (Statute exempting a homestead from execution or judicial sale for
debt, unless all owners have jointly mortgaged the prop or otherwise subjected it to creditors’ claims):
Very generous homestead exemptions. 200 acres rural land, 10 acres urban land; doesn’t matter what’s
on the property, as long as used for a residence. No cap on the value of the improvements. Not hard to
qualify for these benefits. Just have to occupy the residence, and that meets a designation of a homestead.

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a. Consequences of designating a homestead:

i. Free from creditor’s claims during lifetime (includes tort creditors). Few exceptions
(mortgages, taxes, etc.—things that relate to the home). Mortgage co. can come after the
homestead if you don’t pay the mortgage. Makes sense b/c otherwise cos. would never
lend money if they couldn’t get foreclosure on default.
1. Insolvency: If insolvent, title to surviving spouse is absolute –surviving spouse &
remaining kids get property free and clear of creditors’ claims and legatees or
heirs.
ii. Both spouses have to join in a lifetime conveyance of the homestead. Even if house is
your separate property, cannot sell or give it away unless spouse agrees to the transfer
(both have to agree for homestead to be transferred).
iii. Partially exempt from property taxes: If the property is the homestead only.
iv. (Related to i) When decedent survived by spouse, minor children, or unmarried adult
children, passes FREE of creditor’s claims at death. Applies if the property not left to
those children. (Rules different when talking of spouse’s right of occupancy, then doesn’t
apply to unmarried adult children, but only spouse and minor children.)
v. Surviving spouse of minor children’s exclusive right of occupancy. Probate
homestead.
1. Does
2. Occupier must pay interest on homestead mortgage, property taxes
a.
3. Adult children don’t have right of occupancy
a. But creditor protection applies even if the children are adults, as long as
they are unmarried and residing in the household
4. Classification: HYPO—T owns Blackacre (separate property) and occupies
the property w/spouse & 3 minor children. Don’t devise the property to them,
but to Uncle Bart, and it was T’s separate property.
a. B owns BA at T’s death. But does he have the right to move into the
house? Not under this final consequence.
b. Devisee who is given the property by will cannot move in. Guardian of the
minors has the right of occupancy. Unmarried adult child- he has a
homestead right, but not a right of occupancy. But if W and kids move out
and decide to rent out BA, they have ceased to occupy and their right of
occupancy ALSO ceases. Similar to a life estate. As long as surviving
spouse alive, she has a right to occupy this property. Life estate doesn’t
terminate just b/c you cease to occupy. Right of occupancy on the other
hand only continues as long as you continue to occupy the homestead.
c. Have to pay mortgage interest (not principle—that’s on the holder of the
title) and taxes
vi. Personal Property: Who gets that depends on whether the estate is solvent.
1. If solvent, then prop to whoever is the legatee under the will. If sufficient property
to pay off the debts, then goes to legatee as long as enough to give to the surviving
spouse. §278
2. When insolvent (insufficient funds to pay creditors), then absolute (??). Property
goes only to the surviving spouse & kids. PP: Creditors would get property were it
not for exempt prop provisions, the legatees are not being deprived of anything.
§279
 Set-aside rule: Surviving spouse (and sometimes minor kids) have rt to have pers
prop of T reserved or put aside up to a certain value.

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 UPC: $15k limit – exempt from credits, household furniture, clothing, may inc.
car and farm animals, 22k for homestead
 Texas: Home furnishings, consumption, items used in the profession, two
firearms, max. amt. is $60k for a family or $30k for a single person
 some money still exempt from cap, wages, religious books (unless landlord
trying to seize it), etc. Property Code §42.001
 who picks what property is allowed?
 Governed by other statutes
Family Allowance: Maintenance of family §278
 TX: Get enough to maintain the family for a year. Funeral expenses take priority over family allowance;
surviving spouse gets half interest in the CE.
a. If indep admin, then executor calculates the amt
b. If not, then court decides the amt
c. Includes both spouse’s contributions. If insufficient CP, then allowance paid out of deceased
spouse’s separate estate.
 UPC: Allows for a reasonable allowance that cannot continue beyond 1 yr if the estate is insolvent.
 Family allowance takes precedence over EVERYTHING except funeral expenses and medical expenses
up to $15K.
 What if surviving spouse has adequate income on her own? Ct doesn’t grant the allowance b/c meant to
cover what might go unpaid otherwise. If sufficient separate property, then ct will not grant out of CP or
decedent spouse’s SP. Same if the minor children have sufficient property of their own.
 But, if the spouse or children have sufficient separate assets, then there’s no right to a family allowance.

Texas case: Estate of RHEA

Facts: wife left her husband nothing, children came into the home and cleaned everything out, the man had to
buy 3.7k worth of stuff
Contesting:
1. he had enough income to meet be solvent
a. the court can’t award an allowance if spouse has significant separate property to live for 1
year, applicant has burden of proof
b. standard: necessities and circumstances they’re accustomed
c. Holding: overrule
2. Erred in providing 5k and wedding ring, you can’t do both
a. contrary to plain meaning
b. if any exempt property is missing, you can remedy it w/ exemption in lieu
3. Erred in life estate of W’s wedding ring
a. use and enjoyment until settlement of estate, not for life
b. that’s true, if solvent, it’s distributed to heirs and distributes
c. Charles argued it’s presumptively community property, but he bought before marriage and
gave it to her
Texas Property Code § 42.001. Personal Property Exemption
(a) Personal property, as described in § 42.002, is exempt from garnishment, attachment, execution, or other
seizure if:
(1)
$60,000, exclusive of the amount of any liens, security interests, or other charges encumbering the
property; or
(2)
market value of not more than $30,000, exclusive of the amount of any liens, security interests, or
other charges encumbering the property.

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(b) The following personal property is exempt from seizure and is not included in the aggregate limitations
prescribed by Subsection (a):
(1) current wages for personal services, except for the enforcement of court-ordered child support
payments;
(2) professionally prescribed health aids of a debtor or a dependent of a debtor; and
(3)
of the debtor or a dependent of the debtor.
(c) This section does not prevent seizure by a secured creditor with a contractual landlord's lien or other
security in the property to be seized.
(d) Unpaid commissions for personal services not to exceed 25 percent of the aggregate limitations
prescribed by Subsection (a) are exempt from seizure and are included in the aggregate.

Texas Property Code § 42.002. Personal Property

(a) The following personal property is exempt under § 42.001(a):
(1) home furnishings, including family heirlooms;
(2) provisions for consumption;
(3) farming or ranching vehicles and implements;
(4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or
profession;
(5) wearing apparel;
(6) jewelry not to exceed 25 percent of the aggregate limitations prescribed by § 42.001(a);
(7) two firearms;
(8) athletic and sporting equipment, including bicycles;
(9)
single adult who holds a driver's license or who does not hold a driver's license but who relies on
another person to operate the vehicle for the benefit of the nonlicensed person;
(10) the following animals and forage on hand for their consumption:
(A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each;
(B) 12 head of cattle;
(C) 60 head of other types of livestock; and
(D) 120 fowl; and
(11) household pets.

Texas Probate Code § 271. Exempt Property to be Set Apart

(a) Unless an affidavit is filed under Subsection (b) of this section, immediately after the inventory,
appraisement, and list of claims have been approved, the court shall, by order, set apart:
(1) the homestead for the use and benefit of the surviving spouse and minor children; and
(2)
laws of this state for the use and benefit of the surviving spouse and minor children and unmarried
children remaining with the family of the deceased.

Texas Probate Code § 272. To Whom Delivered

The exempt property set apart to the surviving spouse and children shall be delivered by the executor or
administrator without delay as follows: (a) f there be a surviving spouse and no children, or if the children
be the children of the surviving spouse, the whole of such property shall be delivered to the surviving spouse.
(b) If there be children and no surviving spouse, such property, except the homestead, shall be delivered to
such children if they be of lawful age, or to their guardian if they be minors. (c) f there be children of the
deceased of whom the surviving spouse is not the parent, the share of such children in such exempted
property, except the homestead, shall be delivered to such children if they be of lawful age, or to their

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guardian, if they be minors. (d) n all cases, the homestead shall be delivered to the surviving spouse, if there
be one, and if there be no surviving spouse, to the guardian of the minor children.

Texas Probate Code § 278. When Estate Is Solvent

If, upon a final settlement of the estate, it shall appear that the same is solvent, the exempted property, except the
homestead or any allowance in lieu thereof, shall be subject to partition and distribution among the heirs and
distributees of such estate in like manner as the other property of the estate.

Texas Probate Code § 279. When Estate is Insolvent

Should the estate, upon final settlement, prove to be insolvent, the title of the surviving spouse and children
to all the property and allowances set apart or paid to them under the provisions of this Code shall be
absolute, and shall not be taken for any of the debts of the estate except as hereinafter provided.—
INSOLVENT-Wife and Children; SOLVENT-whomever bequeathed to, Uncle Bart

Texas Probate Code § 282. Nature of Homestead Property Immaterial

The homestead rights of the surviving spouse and children of the deceased are the same whether the
homestead be the separate property of the deceased or community property between the surviving spouse and
the deceased, and the respective interests of such surviving spouse and children shall be the same in one case
as in the other.

Texas Probate Code § 283. Homestead Rights of Surviving Spouse

On the death of the husband or wife, leaving a spouse surviving, the homestead shall descend and vest in like
manner as other real property of the deceased and shall be governed by the same laws of descent and
distribution.
Texas Probate Code § 284. When Homestead Not Partitioned
The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving
spouse, or so long as the survivor elects to use or occupy the same as a homestead, or so long as the guardian
of the minor children of the deceased is permitted, under the order of the proper court having jurisdiction, to
use and occupy the same.

Texas Probate Code § 285. When Homestead Can Be Partitioned

When the surviving spouse dies or sells his or her interest in the homestead, or elects no longer to use or
occupy the same as a homestead, or when the proper court no longer permits the guardian of the minor
children to use and occupy the same as a homestead, it may be partitioned among the respective owners
thereof in like manner as other property held in common.

Texas Probate Code § 286. Family Allowance to Surviving Spouses and Minors
(a) Unless an affidavit is filed under Subsection (b) of this section, immediately after the inventory,
appraisement, and list of claims have been approved, the court shall fix a family allowance for the
support of the surviving spouse and minor children of the deceased.
(b) Before the approval of the inventory, appraisement, and list of claims, a surviving spouse or any person
who is authorized to act on behalf of minor children of the deceased may apply to the court to have the
court fix the family allowance by filing an application and a verified affidavit describing the amount
necessary for the maintenance of the surviving spouse and minor children for one year after the date of
the death of the decedent and describing the spouse's separate property and any property that minor
children have in their own right. The applicant bears the burden of proof by a preponderance of the
evidence at any hearing on the application. The court shall fix a family allowance for the support of the
surviving spouse and minor children of the deceased.

Texas Probate Code § 287. Amount of Family Allowance

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Such allowance shall be of an amount sufficient for the maintenance of such surviving spouse and minor
children for one year from the time of the death of the testator or intestate. The allowance shall be fixed with
regard to the facts or circumstances then existing and those anticipated to exist during the first year after such
death. The allowance may be paid either in a lump sum or in installments, as the court shall order.

Texas Probate Code § 288. When Family Allowance Not Made

No such allowance shall be made for the surviving spouse when the survivor has separate property adequate
to the survivor's maintenance; nor shall such allowance be made for the minor children when they have
property in their own right adequate to their maintenance.

Texas Probate Code § 291. To Whom Family Allowance Paid

The executor or administrator shall apportion and pay the family allowance:
(a) To the surviving spouse, if there be one, for the use of the survivor and the minor children, if such
children be the survivor's.
(b) If the surviving spouse is not the parent of such minor children, or of some of them, the portion of such
allowance necessary for the support of such minor child or children of which the survivor is not the
parent shall be paid to the guardian or guardians of such child or children.
(c) If there be no surviving spouse, the allowance to the minor child or children shall be paid to the guardian
or guardians of such minor child or children.
(d) If there be a surviving spouse and no minor child or children, the entire allowance shall be paid to the
surviving spouse.

Common Law Protections of Spouse

Dower
 For W only
 Life estate in 1/3 of property owned by H during the marriage, in which was inheritable by issue
of H & W
 Even if the H transferred the property to someone else, the dower remained attached unless the W
removes it
 Applied to real property.
 Only attaches to prop that was held by both H&W, if held in joint tenancy, and wouldn’t go to
kids, just co T, even if H later gave to 3rd party (unless W released her dower).
 States have now extended this to H & W  but only a few states have dower now anyway
 Dower has been abolished almost everywhere
HYPO:
W, a real-estate developer wants to be able to buy & sell land and doesn’t want dower to attach. What
should she do?
Form a corporation, then have the corp. buy and sell land, then she’d have stock in the corp. Dower only applies
to land. Stock in a corp. is personal property. (If she already owns the property, then dower already attaches, and
nothing she can do.)
Curtesy
 For H only when they have children together.
 H got life estate in ALL land and W would get a LE in 1/3. Not equitable.
 Abolished almost everywhere. Shadowed in TX statute that allows 1/3 LE to apply to what decedent
owned at death.
Texas law
Dower abolished in Texas, but influenced the law (1/3 and only applies to land owned by T at time of death, not
all land owned during marriage)

2. Rights of the Surviving Spouse

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a. Intentional Disinheritance: Elective Share Statutes pp. 424-30, 438-450

Elective Share Statutes
 How it works –
o Surviving spouse can elect either to take under the will, or take her elective share (CL: 1/3, UPC:
1/2)
o Inspired by common law dower, so that is how CL 1/3 share was derived—or they could just be
sexist
 TX: Doesn’t have elective share (doesn’t exist in CP jurisdictions). SS gets ½ interest in CP and no right to
another share on top of that. If H devises his ½ of the community property to someone else, there’s nothing she
can do about it. Not true in CL states. (She also can’t do anything about it if he gives all his separate property
to someone else.)
 Two rationales:
o Partnership: Whoever dies first should get to share in the estate—Both spouses contributed, so
both should have right to their joint $$$. Similarly used under Texas' community property idea.
 Why UPC is 1/2
o Support: Don’t want SS to be destitute; and don’t want State to have to support him/her. (Usually
surviving widow.)
 Only needed for support, why CL is 1/3
 Originally just for probate estate elective shares (not property given in trust or in lifetime, JT property, or
life ins.). So possible to evade ES by these non-probate transfers.
 Non-probate transfers  Use of Inter Vivos Trusts
o The trend is to bring non-probate transfer into the elective share calculation
o Look at the facts
o Choice of Law
 Apply the law of the state of domicile – under the UPC…
 If real property – varies by jurisdiction – apply the law of the state in which the trust
exists, the trustee exists, or the where the real property exists.
o NY – any property over which the decedent has general power of appointment without regard to
who created the trust or even if it is a trust is part of the elective share calculation….
o Delaware – even broader, anything that is covered as part of the Federal Estate Tax is part of the
elective share calculation….
 1990 UPC made changes to the Elective share provision, introducing a sliding scale based upon the
length of the marriage from 3% to 50%. Elective share is half of the marital property percentage. Closer
to community property system. Add up all the property of both spouses and split it according to a
percentage based on the length of the marriage. UPC also applies to people who die intestate. NOT ON
EXAM. Only adopted in Wisconsin.
 1969 UPC §2-202
 (Old UPC 1969: takes into account inter vivos transfers such as trust – then
you get a credit for the trust when calculating amount of elective share)
 What Was Included:
o Any transfer under which the decedent retains the right to possession or income from the
property;
o Any transfer which the decedent can revoke or invade or dispose of the principal for his own
benefit;
o Any transfer in joint tenancy with someone other than the spouse;
o Any transfer made within two years before death exceeding $3,000 per donee per year

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Person moves from CL state to community property state (like TX)

Husband has property worth 500K and lives in common law state. Under UPC she gets her full
elective share if they have been married for 15 years or more. H devises everything to a daughter
from a prior marriage. If they move to Texas there is no elective share or quasi-CP.
Couple’s separate property acquired in CL state remains their separate prop for probate purposes after
they move
Should tell spouse to ask other spouse to set up irrevocable trust w/ income to one spouse &
remainder to other.
Quasi-CP: Would have been CP if it had been acquired in TX. But for purposes of probate, this concept
does not exist. “I don’t care about divorce, I only care about death.”
 When you move from SP to CP state, SP is treated like CP for divorce reasons, but for a will, W would get
nothing if H left all to his daughter.
 Create Irrevocable Trust funding by ½ of the estate of the Husband. A will can be revoked, but an
irrevocable trust cannot be revoked.

Sullivan v. Burkin –Pour over will

Supreme Judicial Court of Massachusetts, 1984
390 Mass. 864, 460 N.E.2d 571
 Facts: H purposefully disinherited separated W by putting property into an inter vivos trust.
This is a “pour-over will.” Whatever is left in your estate is poured over into a trust.
 Holding: For this case, the W will NOT get anything. But, for the future, the court will apply
a new rule.
o For future, spouse will be able to elect to take part of trust that was made during
the marriage. Public policy has changed since old rule. Courts don’t want spouses to have this
loophole.
o Assets transferred in an inter vivos trust are subject to elective share if:
1. trust was created by the T during the marriage
2. T should have had a general appt over the trust prop
 Rule: The surviving spouse has no claim against the assets of a valid inter vivos trust created by the
deceased spouse even when the deceased spouse retained substantial rights and powers under the trust
instrument.
 Revocable Trust: can take property back in fee simple for himself; only takes effect when he dies if he
hasn’t revoked it in the meantime.
 Didn’t provide for wife or grandson and said that rest of property should be poured into the trust.
Doesn’t want property to go to wife & grandson. Thought he was going through a lot of hoops (should
have just gotten a divorce).
 How to attack—No intervivos trust. No interest actually transferred. Invalid trust b/c had lots of powers

Bongaards v. Millen
793 N.E.2d 335 (Mass. 2003)
 Facts: H argued the property in his W’s trust should be considered marital
property. Trust was created by W’s mother, not by W (the T). W has power to terminate trust,
meaning it would all go to her, but she didn’t do this.
 Holding: In this case, trust was created by a third party, not spouse -- so H
does not get the trust.
 Tate: agrees with the result. Under partnership theory, H should not take
because the property was not a part of their joint partnership – it was a separate property/gift to her
from a 3rd party.
 Issue: Extend Sullivan to a trust created by third party? (Not decedent, but decedent’s mother).

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 HOLDING: No.
 REASONING: That would frustrate the intent of the 3d party. The 3d person set up for different reason:
to provide for her daughter, so not same concern about trying to defraud the spouse.
 Tate question: What would happen in Texas?
o This would be separate property
 Same policy
 Partnership theory
 Support issue not an issue for separate property
 Can set up a Georgia trust to disinherit them
o Why not just get divorced?

Problem 4—Page 445

Husband and wife have separate property in different states (Red & Blue). They differ in rules. Red
allows elective share to include inter vivos trust, but Blue does not allow elective share to include inter
vivos trust. Husband wants to keep property out of Wife’s hands: Clause in Trust states that laws of
Blue will apply.
Usual conflicts rule—if settler specifies, then that is the rule of law.

Migrating Spouses and the Elective Share

Husband and Wife live in a common-law state. Wife has accumulated $500,000 in property derived from her
earnings during the marriage. H has no property of his own because he had stayed at gome with the kids.

Under the law of the common-law state, if Wife died first, H would have an elective share in some
percentage of Wife;s property.

H and W decide to move to Texas. Wife’s will leaves everything to her son by a prior marriage.

When Wife dies domiciled in Texas, what claim will H have on the 500,000

Answer: no claim, because it is all Wife’s separate property.

How to Advise H: make an inter vivos trust, need for it to be irrevocable, other solutions, wife can execute
will before moving to Texas (but will can be changed), waive elective provisions in premarital agreement,
must be done with full disclosure of assets

Texas: for death purposes, moving to Texas doesn’t change it to common property. It stays separate.

b. Unintentional Disinheritance of Spouse—Pretermitted Spouse pp. 462-66

“Pretermit” = to let pass without mention or notice; omit
Supposed to be intent-serving
Pretermitted spouse statutes
 Law partially revokes a will written before a marriage if it does not include the new spouse (in some
states). Typically give a larger share than elective/forced share statutes. (but can’t go after non-
probate assets) (because intent serving instead of bare minimum)
 Presumption is that the spouse would want to give property to spouse, but just didn’t get around it.
o Can be rebutted only if it was intentional. Intent must be clearly manifested in the will. Issue
that is litigated is whether there was sufficient evidence of T’s intent. Can not use generic
statements to rebut the presumption.
o In California, can rebut by showing:

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 Showing the intention to omit the spouse

 Providing for the spouse by a transfer outside the will
 Spouse made a valid agreement waiving the right to share
 In addition to the ES, some CP states as well as SP states, revokes the will to the extent that the SS is
not provided for at least her intestate share. The idea is that you give effect to the T’s presumed
intent. If T had gotten around to it, surely he would have written another will providing for his wife.

Texas – no law on pretermitted spouses

 Texas does not have this statute, but some community property cases do.
 Texas gets exempt property/homestead/her share of community property

In re Estate of Prestie-
Pour-over will, devises property into an inter-vivos trust. Distinct from testamentary trust. Didn’t provide
for her in the will, just the trust. Not part of the will.
Under Nevada statute saying marriage revokes the will unless other share.
No marriage contract, not in will, but in trust
Is that enough?- Holding: no
Remarried,
How would the case end up under 2-301?
2-301- provision in lieu of testamentary provision preempts statute, or property devised to child of
the testator

What about remarriage? Marriage in installments?- can be aggregated for purposes of elective share

Estate of Shannon
California Court of Appeal, Fourth District, 1990
224 Cal.App.3d 1148, 274 Cal.Rptr. 338
 Facts: H left everything to daughter and then he later got married. W thinks she was a
pretermitted spouse. Daughter does not prove any of the three CA exceptions –hangs onto the fact
that he left ALL estate to her and it was his intent that is stayed this way no matter what. (W was
independ. wealthy, but that doesn’t matter.)
 Rule: If a testator fails to provide by will for a surviving spouse who married the testator after the
execution of the will, the omitted spouse shall receive a statutorily prescribed share of the estate.
 Holding: W won, Daughter lost. None of the CA exceptions applied. There was no clear intent
in the will. He had not married W at the time – in fact it was much later.
o Saying you specifically disinherit everyone doesn’t make a difference. By virtue of
marrying her, that language doesn’t apply. Spouse trumps.

3. Rights of Surviving Children

a. Intentional Disinheritance pp. 466-73

Disinheriting Children – Children Omitted from Will
 Children are not protected from intentional disinheritance (except in Louisiana do they have right of
inheritance).
o This is true even if the child is a minor.
 We allow disinheritance because:
o There is no “partnership” between parents and children
o Gives the parents leverage—especially with the need of long-term family involved healthcare

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o The wealthy do not have to give their money to their children → they already have plenty of
advantages
 However, courts are often sympathetic to disinherited children when there is no surviving spouse
 Tate: thinks law should be altered to guarantee minor children a portion of estate

b. Unintentional Disinheritance—Pretermitted Child pp. 473-84, Ex. 15

RULE : Pretermitted child takes whatever portion would have gotten if T died intestate.
Unintentional disinheritance of child
 CL Rule: accident is presumed when a child is omitted unless there’s evidence in will itself that the
omission was intentional.
o Favoritism: if you want to disinherit your kid – say so specifically or do it through an inter
vivos trust
 UPC
o if T had no children living when he executed the will, the pretermitted children (children born
after will, no children beforehand) will take intestate share unless all or substantially all of the
estate is left to the other parent of the pretermitted child (Tate prefers this since it doesn’t upset the
bequest), then pretermitted child gets nothing
o if T had 1+ kids when he executed the will (so at least one was alive already) and the will devised
property to at least one of the then-living children, pretermitted child is limited in sharing the devises
made to the children under the will (they split total given to kids)
o if T had 1+ kids when he executed the will (so at least one was alive already) and the will did
NOT devise property to the then-living children, then the pretermitted child and the child that was
already living all get nothing.
o The first two apply if: (1) it appears from the will that the omission was intentional or (2) T
provided for the omitted child by transfer outside will that was meant to be testamentary in nature
 TPBC §67:
o (A) if T has 1+ kids when he executes his last will (so at least one was born already) and no
provision is made for that child or any living child, the pretermitted child gets the portion of separate
& community property child would have gotten if T died intestate w/o a surviving spouse (getting
only that portion of his estate not devised or bequeathed to the parent of the pretermitted child).
 If living child is not provided for in the will, then the child born after the will
was executed (i.e. the pretermitted child) gets an intestate share as if the spouse died and the
older child gets nothing. Presumption T cut older child out.
o (B) if T has 1+ kids when he executes his last will (so at least one was born already) and he
provided for at least one of them in the will, then the child born after the will was executed (i.e.
the pretermitted child) splits the amount EVENLY w/ ALL the children who were provided for in
the will.
 If T didn’t provide for one kid that was already living at the time of will
execution– that kid is cut out & other kids will split it.
o (C) if T has no child living when he executes his last will (so they weren’t born yet), the
pretermitted child gets the portion of separate & community property child would have gotten if T
died intestate w/o a surviving spouse (getting only that portion of his estate not devised or
bequeathed to the parent of the pretermitted child).
 All kids born after will was executed split intestate share as if no surviving spouse.
(must provide for spouse first!)
Texas Probate Code § 67. Pretermitted Child
(a) Whenever a pretermitted child is not mentioned in the testator's will, provided for in the testator's will, or
otherwise provided for by the testator, the pretermitted child shall succeed to a portion of the testator's
estate as provided by Subsection (a)(1) or (a)(2) of this section.

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(1) If the testator has one or more children living when he executes his last will, and:
(A) No provision is made therein for any such child, a pretermitted child succeeds to the
portion of the testator's separate and community estate to which the pretermitted child would have
been entitled pursuant to § 38(a) of this code had the testator died intestate without a surviving
spouse owning only that portion of his estate not devised or bequeathed to the parent of the
pretermitted child.
(B) Provision, whether vested or contingent, is made therein for one or more of such
children, a pretermitted child is entitled to share in the testator's estate as follows:
(i) The portion of the testator's estate to which the pretermitted child is entitled is limited to the
disposition made to children under the will.
(ii) The pretermitted child shall receive such share of the testator's estate, as limited in
Subparagraph (i), as he would have received had the testator included all pretermitted children
with the children upon whom benefits were conferred under the will, and given an equal share
of such benefits to each such child (iii)To the extent that it is feasible, the interest of the
pretermitted child in the testator's estate shall be of the same character, whether an equitable
or legal life estate or in fee, as the interest that the testator conferred upon his children under
the will.
(2)
the portion of the testator's separate and community estate to which the pretermitted child would have
been entitled pursuant to § 38(a) of this code had the testator died intestate without a surviving spouse
owning only that portion of his estate not devised or bequeathed to the parent of the pretermitted child.
(b) The pretermitted child may recover the share of the testator's estate to which he is entitled either from the
other children under Subsection (a)(1)(B) or the testamentary beneficiaries under Subsections (a)(1)(A)
and (a)(2) other than the parent of the pretermitted child, ratably, out of the portions of such estate
passing to such persons under the will. In abating the interests of such beneficiaries, the character of the
testamentary plan adopted by the testator shall be preserved to the maximum extent possible.
(c) A "pretermitted child," as used in this section, means a child of a testator who, during the lifetime of the
testator, or after his death, is born or adopted after the execution of the will of the testator.
(d) For the purposes of this section, a child is provided for or a provision is made for a child if a disposition
of property to or for the benefit of the pretermitted child, whether vested or contingent, is made:
(1) in the testator's will, including a devise or bequest to a trustee as authorized by § 58(a) of this code;
or
(2) outside the testator's will and is intended to take effect at the testator's death.
(e ) UPDATE

Texas law on attorney accidentally disinheriting

 Intended beneficiary cannot sue attorney in tort for screwing up will and inadvertently disinheriting
her (but can in most states)

Uniform Probate Code

§ 2-302. Omitted Children.
(a)  Except as provided in subsection (b), if a testator fails to provide in his [or her] will for any of his [or her]
children born or adopted after the execution of the will, the omitted after-born or after-adopted child
receives a share in the estate as follows:
(1) 
after-adopted child receives a share in the estate equal in value to that which the child would have
received had the testator died intestate, unless the will devised all or substantially all of the estate to
the other parent of the omitted child and that other parent survives the testator and is entitled to take
under the will.

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(2) 
devised property or an interest in property to one or more of the then-living children, an omitted
after-born or after-adopted child is entitled to share in the testator's estate as follows:
(i)  The portion of the testator's estate in which the omitted after-born or after-adopted
child is entitled to share is limited to devises made to the testator's then-living children under the
will.
(ii) The omitted after-born or after-adopted child is entitled to receive the share of the
testator's estate, as limited in subparagraph (i), that the child would have received had the testator
included all omitted after-born and after-adopted children with the children to whom devises were
made under the will and had given an equal share of the estate to each child.
(iii) To the extent feasible, the interest granted an omitted after-born or after-adopted child
under this section must be of the same character, whether equitable or legal, present or future, as
that devised to the testator's then-living children under the will.
(iv) In satisfying a share provided by this paragraph, devises to the testator's children who
were living when the will was executed abate ratably. In abating the devises of the then-living
children, the court shall preserve to the maximum extent possible the character of the
testamentary plan adopted by the testator.
(b) Neither subsection (a)(1) nor subsection (a)(2) applies if:
(1)  it appears from the will that the omission was intentional; or
(2) 
and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements
or is reasonably inferred from the amount of the transfer or other evidence.
(c) 
solely because he [or she] believes the child to be dead, the child is entitled to share in the estate as if the
child were an omitted after-born or after-adopted child.
(d)  In satisfying a share provided by subsection (a)(1), devises made by the will abate under Section
3-902.

Hypo
Problem 3 p. 532
Suppose that, when T executes will, she has 2 living children, A and B. Her will devises 7.5k
T devised 10k to A and 5k to B, her 2 children living at the will’s execution She has another child C born
after the execution of the will
What could C take under the UPC and w
They abate ratably, C’s share comes from 2/3 from A and 1/3 from B. A gives up 3,333 and B gives up
1,667.
In Texas, §67 A and B equal to intestate share
Hypo
H married W, will made in ’99 before had ANY kids, then the two kids were born, A in 2000 and B
in 2002. T dies in 2006 leaving a will w/ $100k to W. Rest of estate totals $5k SP.
 Texas: W gets $100k per the will. A gets $2,500, B gets $2,500. Distribute rest as if intestate w/o
surviving spouse.
 UPC: W gets everything b/c left substantially all estate to her, she’s parent of surviving kid and W
would take whole amount under intestacy anyway.
Same hypo as above, but assume A was born in ’98, a year before the will was executed.
 Texas: B gets whole $5k, presumption that cut A off purposefully, A gets 0
 UPC: A gets 0, B gets 0 since 0 was given to A
What if T left $1.00 to A in his will?
 Texas: A gets 50 cents and B gets 50 cents
 UPC: same result, A gets 50 cents and B gets 50 cents

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 Under both, share of children is limited to what they would have gotten under the will, split what was
given to the children. If you want to cut your kids off in a will – best to leave them a dollar! If leave money to
older child, all children will split that amount of money.

P.481 Problem 3:
 $15,000 divided by 2 children; then there is another child,so divide among 3 = $5000.
 $10,000 to A, $5,000 to B = see that A gets 2/3, B gets 1/3. Add total = 15000. C gets 1/3 of that. Then
take the remaining portion and divide that so that A gets 2/3 of $10K and B gets 1/3.

DIFFERENCE BETWEEN TX AND UPC

Hypo: § 67 TXPC—get portion of T’s estate that they would have gotten if T died intestate w/no
surviving spouse. Distribute $500 to child instead of to the sister.
 UPC follows the Conduit theory: If T leaves everything to the parent of the child, then parent takes care of
the child—Not so under TX law.
 Another (more important) Difference: A born before will executed. T left nothing to A. Under the UPC,
S, child born after the will’s execution would get what, if anything?
o UPC: If nothing given to other kids, then after-born pretermitted child takes nothing. (§ 2-302
doesn’t mention this, but Tate says it’s in a comment. (Assumes that if will left nothing to kids,
that T didn’t want kids to get anything.)
o TX: Gets portion of estate not devised to the parent of the pretermitted child. (Assumes that if
will left nothing to existing kids, then still might have wanted to give something to other kids.)
 If you have an illegitimate kid that you want to disinherit, you should accomplish that through inter vivos
transfers (revocable trust).

Azcunce v. Estate
Florida Court of Appeal, Third District, 1991
586 So.2d 1216
 FACTS: T wrote codicils, one before daughter was born and one after. Daughter is cut out b/c the codicil
revoked will, cutting child out = inadvertent exclusion of kid
 ISSUE: Whether a child born after her father’s will was executed granting a trust to 3 other living
children, but before a codicil is executed is entitled to take a statutory share of her father’s estate.
 HOLDING: No. Only pretermitted at time of will and first codicil (when still unborn); but not when
second codicil executed.
o ISSUE #2: Whether T’s execution of the 2d codicil to the will after P’s birth destroyed her
pretermitted child status.
o HOLDING: YES. B/c T did not provide for P in the 2d codicil, she was disinherited.
 P argues that 1) the codicils are ambiguous & ct should have let in parol evidence; and 2) should be void
for mistake.
o Ct shoots these down b/c first, there’s no ambiguity and second, this isn’t the kind of mistake that
voids a will.
 DISPOSITION: Affirms lower court.
 Doctrine that is causing a problem: Republication by codicil—the entire will is re-executed after the
daughter’s birth b/c of the codicil (brings everything forward in time).
 Attorney failed to warn T about what would happen when he executed the codicil.
 Court applies the Plain Meaning Rule—says there’s no ambiguity.
 Tate says result should have been that daughter got something; Doesn’t think T would have left out a 2
yr-old kid

In re Estate of Laura

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Supreme Court of New Hampshire, 1997

141 N.H. 628, 690 A.2d 1011
 Facts: Disinherited the children of his dead daughter (his grandkids). Grandkids trying to
include selves as pretermitted children.  Will left everything to the surviving daughter. 
 ISSUE: Were the T’s great-grandkids pretermitted heirs?
 Holding: No. B/c T gave to their mother, the grandchildren are barred.  Naming one heir in an
effort to disinherit is sufficient to do so under this statute. This is an unusual case since it extends
rule to all the issue of children, i.e. grandchildren. Note: If you disinherit one of your heirs –
that is good enough to disinherit the heirs’ issue. Tate thinks this is bad reasoning b/c people
may feel different about grandkids than they do about children.
 CLASS: Extends the rule to ISSUE of children (descendents) and sometimes includes kids
who were alive when the will was executed.
o What would have happened if the will gave some stuff to some of the kids of the
grandkids, but not others? Assume that all should have been provided for; or do you assume that T
didn’t want to provide for those others not mentioned? Tate not sure how that would work out.

In re Estate of Treloar—Seven Years after Laura

 Facts: Mother was mentioned at one point in an earlier will.  Grandchildren wanted to be
pretermitted children.  Executor argued that mention of the son-in-law as executor (in the will)
indirectly referenced mother and should bar the children. (shows she was doing it intentionally)
 Holding: Court decided opposite from case above, grandchildren were considered
pretermitted children. 
 By naming son-in-law did not mean that T wanted to cut the family off. T didn’t
affirmatively express exclusion; court said that T wanted them to take—if he hadn’t, he would have
said so.
IV. NON-PROBATE TRANSFERS (TRUSTS) AND PLANNING FOR INCAPACITY

A. Introduction Casebook: 295-98

Non-probate transfers and planning for incapacity
 Non-probate assets pass at death under an instrument other than a will. As such, they are not subject
to probate.
o E.g., joint tenancies, life insurance, pension accounts, joint accounts, revocable trusts,
contracts w/ payable on death provisions, employee benefit plans, individual retirement
accounts, interests in trust.
 The effect keeps property of a person’s estate.
 Non-probate transfers are an important part of estate planning b/c they provide welfare for other
people’s lives
B. Pure Will Substitutes
Will Substitutes
 Perfect or mass will substitutes
o Reserves complete dominion to owner, who has the owner to decide who gets the property
until their death.
o Transfers are asset specific
o Types: life insurance, pension accounts, joint accounts, revocable trusts
o You retain all control during your lifetime, including ability to change beneficiaries until
death.
 Imperfect will substitutes
o Types: joint tenancies

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o Cannot just change at your discretion.

1. Revocable Trusts & Pour-Over Wills Page 299-322, Ex. 16A
Revocable Trusts (aka Inter Vivos Trusts)
 Separation of legal and equitable title
o Legal title: With trustee
o Equitable title: With beneficiaries (for whose benefit the property is being managed by the
trustee)
o Manages the trust: Settlor (or trustor)
 Retains the power to revoke/amend the trust.
 Equitable title is in the beneficiaries while the legal title is in the trustee (this is based on old CL
where there was a distinction b/w courts of equity and courts of CL).
 Trustee manages the property on behalf of the beneficiaries and owes certain duties to them.
 Revocable trust v. other trusts: settlor has the right to revoke or amend the trust to receive trust
income
 UTC: allows a trust to be revoked in any manner that provided CCE of intent to revoke, unless the
trust specifies otherwise
 Texas: Trust must be revocable in writing unless the trust provides otherwise. (Also, same person can’t be
trustee and sole beneficiary)
 Creditors rule: Creditor can reach assets of the deceased settlor if (1) the settlor had control over the
assets during his life and (2) the debt cannot be satisfied out of the decedent’s estate. (not
beneficiary’s creditors)
o Forms that are not subject to creditors’ claims: life insurance, property in joint tenancy, assets
in an irrevocable trust (which is treated the same as a lifetime gift). However, if settlor
creates an irrevocable trust after taking out a loan, the assets may be reachable if the trust was
made to defraud creditors.
 Advantages of a revocable trust: can provide for incompetency (will only takes effect at death
and can’t deal w/ health contingencies)
 Disadvantages of a revocable trust: Cannot transfer property you haven’t acquired yet through a trust
– this needs to be done w/ a pour-over will
Revocable Trust and Divorce  Texas statute revokes an interest of a spouse in a revocable trust
established by the other spouse, upon divorce… only covers written revocable trusts.
Use of Revocable Trust to plan for Incompetence
 Revocable trust can be used to help manage for incompetency of the settler/trustee/testator….
 By appointing another trustee
 Question/Issue is how do you determine incompetence
o By a physician
o By unanimous consent of the family members
o No provision, by consent of the trustee….
Pour-over wills (POW)
 Pour-over will: Contents of the will are poured over into a trust. Devises the estate into a trust. Usually
goes into the residuary clause. Give estate to the trustee of the X trust to be held under the terms of that trust.
Distinction to draw: POW (goes into inter vivos trust) vs. a testamentary trust (trust created by the will). Could
say in the will, “I hereby create the X trust with this property.”
o A bequest to a pour over will is treated just a bequest to a person in the will.
o Theories to justify:
 Doctrine of incorporation by reference: Separate instrument names beneficiaries, the
will is inc. that by reference.
 Doctrine of acts of independent significance.

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o Every state allows for POWs. Some have dispensed with the requirement that the trust must
be in existence when the will is executed.
o PP: Don’t want people to know what you had and what you gave to whom (e.g. John
Lennon).
 Will that transfers property into a trust created in the T’s lifetime / into an existing trust.
o If the trust was established by the will, that is called a “testamentary trust.”
o You write the trust and then write the will or vice versa
o Pour-overs to unfunded trusts are okay – can also devise property to people who are not born
yet
 Theories of wills law used to justify pour-over wills:
o You might want a trust during your lifetime to effect a non-probate transfer or to manage
certain property, you don’t want to put everything into the trust in life b/c you will want some
control over some of your assets during life. Also, you may want to transfer prop you haven’t
acquired yet with a pour-over will. (Can’t do that with a trust)
 You can not execute a deed of trust that transfers all after acquired property or any after acquired
property… can not transfer property to the trust that you have not yet acquired… but you can do this
via a pour over will.
 Reasons for creating a POW
o Don’t want to have to keep transferring everything into the trust when you acquire property—
want just to say that whatever is left over in the end goes into the trust. Can’t transfer
property into the trust that you haven’t acquired yet. Cannot say that you’re going to fund this
with some property that I’m going to acquire tomorrow—have to convey the property after
acquired. The POW allows you to pour over what is left in the estate into a trust after you die.
 Independent significance: trust has independent significance if assets are transferred to trust during
life
 Incorporation by reference: will can incorporate the trust in a state that recognizes this doctrine
 Amendments under UPC: can orally amend inter-vivos trust/pour-over will–effectively creates oral
will.
 Example: O sets up a revocable inter vivos trust naming X as trustee. O transfers to X, as trustee, his
stocks and bonds. O then executes a will devising the residue of his estate to X, as trustee, to hold
under the terms of the inter vivos trust. The pour-over by will of probate assets into an inter vivos
trust is a useful device where O wants to establish an inter vivos trust of some of his assets and wants
to merge after his death his testamentary estate, insurance proceeds, and other assets into a single
receptacle subject to unified trust administration.

Texas Law on Revocable Trusts and Pour-Over Wills

 Settlor can retain the right to amend or revoke trust. However, same person cannot be trustee and
sole beneficiary.
 To revoke a written trust, there must be a writing unless it provided an alternative means of
revocation.
 TPBC §68(a) Pour over-wills: T may validly devise or bequeath property in a will to a trust
established or to be established during the T’s lifetime
 Amendments: can only amend an inter-vivos trust/ pour-over will in writing (but this can be
overridden by language in the trust instrument – effectively creates an oral will!)
 TX Probate Code § 58A – does not require the trust to be established; can be established after
execution; expressly authorizes pour-over into unfunded trusts (technically not in existence at the
time of death, because they lack property

Problem #2, p.312

 Aunt Fanny executes a will pouring over all of her property into the trust.
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 How will property be distributed?

o UPC: According to the trust instrument (in writing). But amendments can take any form.
o TX: Similar to UPC, but if the trust is in writing, the amdmts have to be in writing unless the
trust specifies otherwise. In this case, the trust says it can be amended by an oral
communication, so the terms of the trust take precedence over the statute b/c the statute is just
a default rule. Could create an oral will if you create a trust that says that you can create oral
amendments. “Interesting result,” says Tate, but “not a good idea” to allow oral modifications
to a trust b/c raises problems of misunderstanding if trustee is confused as to what the
requirements were. Possibility of fraud.
 Was memo found at death a communication to W?
o Estate of Kirk (Idaho 1995) says that ct should give effect to the memo, but this memo wasn’t
included.

Problem #2, p.315

Pablo executes an unfunded inter vivos trust naming Eduardo as beneficiary. Pablo executes pour-
over will. The will states that if there is a contest of the will, then the contestor disclaims any benefit.
Pablo amends the trust and names Maria as beneficiary. Eduardo fights the amendment stating that
Pablo lacked mental capacity. What result?
Maria is going to claim that Climber rules and that the probate rules and wills act make the will apply to the
trust.
Eduardo is going to argue that the Will and Trust are separate documents, so the “clauses” of the will do
not all apply to the trust.

2 types of will substitutes

1. Perfect will substitutes
a. Revocable inter vivos trust
i. Presumed to be revocable unless specifically irrevocable
2. Imperfect will substitutes

Farkas v. Williams
Supreme Court of Illinois, 1995
5 Ill.2d 417, 125 N.E.2d 600
 Facts: Albert Farkas created a trust containing stocks for the benefit of Williams. Farkas appointed
himself trustee, and retained the power to do anything needed with the stock. The heirs of Farkas argued that
Farkas had retained so much power with the stock that it was not a inter vivos trust. Trust had certain
“contingencies” (factual situations) that must exist or the trust would be revoked.
 Holding: Court found inter vivos trusts, not a will/not testamentary transfers. These contingencies
showed that the trust must still exist after T’s death – so it couldn’t be a will.
 Issue: When you have so many contingencies, did the interest pass to Williams or not?
 Holding: There is some interest acquired, but it’s a “mystery” interest.
o Sub-issue: Does settler retain all incidents of ownership that he had in the beginning?
 Rule: Even though the settler retains the power to revoke the trust and appoints himself as trustee, if
the beneficiary obtains any interest in the trust before the settler dies, a valid inter vivos trust may
have been formed.
 No fraud or conversion b/c detailed enough to show enough evidence that T knew what he was doing.
 If 1 trustee is 1 beneficiary, then it’s de facto fee simple
 Tate: something they can’t say, but they allude to:
o Formality in the process
 CLASS: You could do this instead of creating a will. Make yourself the trustee & settler and name
your beneficiaries.

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o TX: sec. 112.033—Makes it ok to do what Farkas did.

Linthicum v. Rudi
148 P.3d 746 (Nev. 2006)

 Claire executes a will and a revocable trust, Ernette and Myra (successor trustees and beneficiaries)
 She then executes a new will and amendment, replacing girls as beneficiaries and successor trustees
 Rudi petition for guardianship, state awarded guardianship
 Ernette and Myrna challenge amended trust seeking constructive trust or cancellation
 Holding: they don’t have standing because they are contingent beneficiaries
 Reasoning: unlike Farkas, no interest until it vests
o If pure will substitute: no real harm in calling them devisees
Texas: Moon v. Lesikar

UTC §603 Settlor’s Powers; Powers of Withdrawal

a) While a trust is revocable [and the settlor has capacity to revoke the trust] , rights of the beneficiaries are
subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
b) During the period the power may be exercised, the holder of a power of withdrawal has the rights of a
settlor of a revocable trust under this section to the extent of the property subject to the power.

In re Estate of Atkinson
175 N.E.2d 548 (Ohio Prob. 1961)
Contracts payable on death
Rule: life insurance can be payable on death
Not giving effect to decedent’s intent-

Applying Subsidiary Laws to Will Construction

In re Estate and Trust of Pilafas

836 P.2d 420 (Ariz. App. 1992)
 Facts: couldn’t find T’s will or his trust documents
 Issues:
o is the will revoked?
 Presumption of revocation
o Is the trust revoked?
 Doesn’t apply to trust
 Must be done in writing, or
 Difference between wills and trusts
 Will- must comply with statute
o Writing or physical act
o Presumption if can’t find it
 Trust-doesn’t have to comply with formalities for execution, nor for revocation
o Accordance with trust language
o Or, under uniform trust code, revoked in any manner w/ CCE with
intent to revoke
 Texas has to be revoked in writing, unless different than in the
trust
 Rule of law & Holding: will is revoked under the CL presumption, but the trust is not revoked since it is
present (not a future) transfer

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o PP: Can only revoke a trust if done in writing. Beneficiaries are entitled to rely on the trust
provisions that state that it can only be revoked in writing.
o TX: amendment, revocation, modification must be in writing UNLESS the trust specifies
otherwise.
o UTC: III Rest. Of Trusts: Allows T to revoke any way you want, as long as clear and
convincing evidence. Can provide otherwise in the trust (like that it has to be revoked in
writing).

State Street Bank & Trust Co. v. Reiser

389 N.E.2d 768 (Mass. App. 1979)
 Facts: T had a trust. T took out a loan that was not secured for $75k
 ISSUE: whether the trust assets were reachable by the bank after T’s death. Can the creditor reach
assets transferred to the revocable trust after settler dies?
 Rule of law & Holding: creditors can reach a trust to satisfy debts that were not satisfied by the
estate, as long as T had the power to amend and revoke that trust (trust is part of prop and reachable
to pay debts from)
o Reasoning: Because settlor had right to control and change during his lifetime and the debt
cannot be settled outside the settlor’s estate, then can go after the trust. Shouldn’t treat this
will substitute any differently than a will.
 Creditor could attack payments to trust as fraudulent

How to shield against creditors

1. Life insurance
2. Us bonds payable
3. Irrevocable trust

Texas case: no specific case on it

Climber v. Mayo
473 N.E.2d 1084 (Mass. 1985)
 Does the T’s subsequent divorce revoke the will and the trust?
 Holding: divorce revoked an interest in an inter vivos trust when there’s a pour-over will since the
trust and the will are so connected that the same rule had to apply to the trust as well as the will
(divorce revokes will provisions to an ex-spouse)
 Texas: recent law  divorce revokes a disposition made in favor of an ex-spouse in a revocable
trust. The ex-spouse remains the beneficiary of an irrevocable trust or a revocable oral trust.
o § 472—Don’t make a revocable oral trust if you’re concerned about divorce.
 Advantages of Trust: Provide for incapacity—have a successor trustee. Put the bank account in the
name of the trust, then successor trustee can go to the bank and tell them to let you into the bank acct.
o Doctor can decide. Or say that the settlor’s spouse & kids have power to decide if he’s
incompetent. Or say nothing and hope that settlor will be talked into resigning as trustee.

Texas Probate Code § 58A. Devises or Bequests to Trustees

(a) A testator may validly devise or bequeath property in a will to the trustee of a trust established or to be
established:
(1)
person, including a funded or unfunded life insurance trust, in which the settlor has reserved any or
all rights of ownership of the insurance contracts; or
(2)
the testator's will and its terms are in a written instrument, other than a will, that is executed before,
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with, or after the execution of the testator's will or in another person's will if that other person has
predeceased the testator, regardless of the existence, size, or character of the corpus of the trust.
(b) A devise or bequest is not invalid because the trust is amendable or revocable or because the trust was
amended after the execution of the will or the testator's death.
(c) Unless the testator's will provides otherwise, property devised or bequeathed to a trust described by
Subsection (a) of this section is not held under a testamentary trust of the testator. The property becomes a
part of the trust to which it is devised or bequeathed and must be administered and disposed of in
accordance with the provisions of the instrument establishing the trust, including any amendments to the
instrument made before or after the testator's death.
(d) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's
death causes the devise or bequest to lapse.

Texas Probate Code § 472. Revocation of Certain Nontestamentary Transfers on Dissolution of

Marriage
(a) Except as otherwise provided by a court order, the express terms of a trust instrument executed by a
divorced individual before the individual's marriage was dissolved, or an express provision of a contract
relating to the division of the marital estate entered into between a divorced individual and the individual's
former spouse before, during, or after the marriage, the dissolution of the marriage revokes the following:
(1)
individual's former spouse in a trust instrument executed before the dissolution of the marriage;
(2)
marriage that confers a general or special power of appointment on the individual's former spouse;
and
(3)
marriage that nominates the individual's former spouse to serve in a fiduciary or representative
capacity, including as a personal representative, executor, trustee, conservator, agent, or guardian.
(b) After the dissolution of a marriage, an interest granted in a provision of a trust instrument that is revoked
under Subsection (a)(1) or (2) of this section passes as if the former spouse of the divorced individual
who executed the trust instrument disclaimed the interest granted in the provision, and an interest granted
in a provision of a trust instrument that is revoked under Subsection (a)(3) of this section passes as if the
former spouse died immediately before the dissolution of the marriage.

Texas Property Code § 112.008. Capacity of Trustee

(a) The trustee must have the legal capacity to take, hold, and transfer the trust property. If the trustee is a
corporation, it must have the power to act as a trustee in this state.
(b) Except as provided by § 112.034, the fact that the person named as trustee is also a beneficiary does not
disqualify the person from acting as trustee if he is otherwise qualified.
(c) The settlor of a trust may be the trustee of the trust.

Texas Property Code § 112.033. Reservation of Interests and Powers by Settlor

If during the life of the settlor an interest in a trust or the trust property is created in a beneficiary other than
the settlor, the disposition is not invalid as an attempted testamentary disposition merely because the settlor
reserves or retains, either in himself or another person who is not the trustee, any or all of the other interests
in or powers over the trust or trust property, such as:
(1) a beneficial life interest for himself;
(2) the power to revoke, modify, or terminate the trust in whole or in part;
(3) the power to designate the person to whom or on whose behalf the income or principal is to be paid or
applied;
(4) the power to control the administration of the trust in whole or in part;

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(5) the right to exercise a power or option over property in the trust or over interests made payable to the
trust under an employee benefit plan, life insurance policy, or otherwise; or
(6) the power to add property or cause additional employee benefits, life insurance, or other interests to be made
payable to the trust at any time.

Texas Property Code § 112.034. Merger

(a) If a settlor transfers both the legal title and all equitable interests in property to the same person or retains
both the legal title and all equitable interests in property in himself as both the sole trustee and the sole
beneficiary, a trust is not created and the transferee holds the property as his own. This subtitle does not
invalidate a trust account validly created and in effect under Chapter XI, Texas Probate Code.
(b) Except as provided by Subsection (c) of this section, a trust terminates if the legal title to the trust
property and all equitable interests in the trust become united in one person.
(c) The title to trust property and all equitable interests in the trust property may not become united in a
beneficiary, other than the settlor, whose interest is protected under a spendthrift trust, and in that case
the court shall appoint a new trustee or co-trustee to administer the trust for the benefit of the beneficiary.

Uniform Probate Code § 2-511. Testamentary Additions to Trusts.

(a) 
testator's lifetime by the testator, by the testator and some other person, or by some other person,
including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of 
ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if
the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a
will, executed before, concurrently with, or after the execution of the testator's will or in another
individual's will if that other individual has predeceased the testator, regardless of the existence, size, or
character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable,
or because the trust was amended after the execution of the will or the testator's death.
(b) 
held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and
must be administered and disposed of in accordance with the provisions of the governing instrument
setting forth the terms of the trust, including any amendments thereto made before or after the testator's
death.
(c)  Unless the testator's will provides otherwise, a revocation or termination of the trust before the
testator's death causes the devise to lapse.
2. Payable-on-Death Contracts

a. Life Insurance Casebook 322-24; Exhibit 16

(TPBC §450)
If you are young and healthy, take out a policy,

Term life vs. Whole Life

1. Term
a. 100k term life policy
b. 20 monthly premiums
c. Lasts 20 years
2. Whole Life
a. 100k policy
b. 100 monthly premiums
c. Paid up after 60 years
d. Has a cash surrender value

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Life insurance
 Outside probate system
 Two kinds of life insurance
o Whole
 Will have a higher premium and covers your whole life
 Will be “paid up” at some point
 Will have a cash surrender value (savings component of this policy)
 Not a good investment from a savings perspective
o Term
 At the end of the term, you are no longer insured, unless you renew (if available).
 Best for a young, healthy person.
 Keep in mind that you may not need life insurance after your children grow up (no one
to compensate in case of your death)

Wilhoit v. Peoples Life Insurance Company

United States Court of Appeals, Seventh Circuit, 1955
218 F.2d 887
 Facts: Sarah Wilhoit received life insurance money from her husband. After receiving the money,
she returned it to the Life Insurance Company for them to hold in trust. If Sarah was to die, the money was to
be paid to her brother Robert G. Owens. Robert died in 1932. Sarah died in 1951. In her will, Sarah left the
money to her stepson’s son. Robert’s heirs reopened his estate claiming the money was owed to his estate.
The law in the state required that the CD or POD designation had to meet the wills act.
 Problem with ct’s approach: (here ok b/c designated someone in her will) What if she’s only made
the POD designation? The POD designee wouldn’t have gotten the property. To preserve the rights
of the will beneficiary,
 Resulting RULE: POD designations in most kinds of accounts are no longer treated as testamentary
dispositions; they are non-probate transfers, therefore, don’t have to conform with the wills act.
 Rule: A party who establishes a trust consisting of the proceeds of a life insurance policy may, by
will, designate a trust beneficiary other than the one named in the trust instrument.

Estate of Hillowitz
Court of Appeals of New York, 1968
22 N.Y.2d 107, 238 N.E.2d 723, 291 N.Y.S.2d 325
 Facts: Pursuant to a partnership agreement, Hillowitz’s share of an investment club passed to his
widow. His executors claimed that this asset should have passed to his estate.
 Rule: A partnership agreement clause providing that each partner’s interest, upon his death, shall
pass to his spouse, is valid and enforceable. CONTRACT NOT TESTAMENTARY, SO DO NOT
HAVE TO COMPLY WITH WILLS FORMALITIES
 Tate doesn’t agree with this: because keeping assets in partnership important for business reason, but
not as much of a reason here, but it has some formalities, so it should stand because of that

Cook v. Equitable Life Assurance Society

428 N.E.2d 110 (Ind. App. 1981)
 Facts: Douglas Cook purchases whole life policy naming wife as beneficiary. They divorce. The
divorce decree made no mention of the insurance policy. Douglas remarries and makes a holographic
will leaving all “worldly possessions” to his current wife, including the life insurance policy.
 Issue: Can the beneficiary of the insurance policy be changed by will?
 Rule: When the policy terms required a change in beneficiary to be made in writing a change by will
is ineffective. The ex-wife takes the policy. This is the majority rule.

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 Texas family Coded Divorce revokes spouse as beneficiary unless this is in the divorce decree, the
insured re-designates the spouse, or the spouse is a trustee. Only applies to spouse not the spouse
relatives. It’s in the Texas Family Code.
 3 exceptions
 If divorce decree designates spouse as beneficiary
 If the insured re-designates spouse as beneficiary
 If spouse is trustee for dependent child of either spouse
In Texas divorce revokes life insurance policy beneficiary left to ex-spouse.
Texas Probate Code § 450. Provisions for Payment or Transfer at Death
(a) Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, promissory
note, deposit agreement, employees' trust, retirement account, deferred compensation arrangement, custodial
agreement, pension plan, trust agreement, conveyance of real or personal property, securities, accounts with
financial institutions as defined in Part 1 of this chapter, mutual fund account, or any other written instrument
effective as a contract, gift, conveyance, or trust is deemed to be nontestamentary, and this code does not
invalidate the instrument or any provision:
(1)
after his death to a person designated by the decedent in either the instrument or a separate writing,
including a will, executed at the same time as the instrument or subsequently;
(2)
the death of the promisee or the promissor before payment or demand; or
(3)
decedent in either the instrument or a separate writing, including a will, executed at the same time as the
instrument or subsequently.
(b) Nothing in this section limits the rights of creditors under other laws of this state.
(c) In this section:
(1) "Employees' trust" means:
(A) a trust that forms a part of a stock-bonus, pension, or profit-sharing plan under § 401…
(B) a pension trust under Chapter 111, Property Code; and
(C) an employer-sponsored benefit plan or program, or any other retirement savings
arrangement, including a pension plan created under § 3, Employee Retirement Income Security Act
of 1974, regardless of whether the plan, program, or arrangement is funded through a trust.
(2)
(b)…
(3)
simplified employee pension, or any other retirement savings arrangement.
(4)
1954 (26 U.S.C.A. § 403 (1986)).
(5)
Texas Family Code § 9.301. Pre-Decree Designation of Ex-Spouse as Beneficiary of Life Insurance
(a) If a decree of divorce or annulment is rendered after an insured has designated the insured's spouse as a
beneficiary under a life insurance policy in force at the time of rendition, a provision in the policy in favor of
the insured's former spouse is not effective unless:
(1) the decree designates the insured’s former spouse as the beneficiary;
(2) the insured redesignates the former spouse as the beneficiary after rendition of the decree; or
(3)
of a child or a dependent of either former spouse.
(b) If a designation is not effective under Subsection (a), the proceeds of the policy are payable to the named
alternative beneficiary or, if there is not a named alternative beneficiary, to the estate of the insured.

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(c) An insurer who pays the proceeds of a life insurance policy issued by the insurer to the beneficiary under a
designation that is not effective under Subsection (a) is liable for payment of the proceeds to the person or
estate provided by Subsection (b) only if:
(1)
at the home office of the insurer from an interested person that the designation is not effective under
Subsection (a); and
(2)
in accordance with the Texas Rules of Civil Procedure.
Texas Family Code § 9.302. Pre-Decree Designation of Ex-Spouse as Beneficiary in Retirement Benefits
and Other Financial Plans
(a) If a decree of divorce or annulment is rendered after a spouse, acting in the capacity of a participant,
annuitant, or account holder, has designated the other spouse as a beneficiary under an individual retirement
account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other
employer plan or financial plan of an employee or a participant in force at the time of rendition, the
designating provision in the plan in favor of the other former spouse is not effective unless:
(1) the decree designates the other former spouse as the beneficiary;
(2)
rendition of the decree; or
(3)
or for the benefit of a child or dependent of either former spouse.
(b) If a designation is not effective under Subsection (a), the benefits or proceeds are payable to the named
alternative beneficiary or, if there is not a named alternative beneficiary, to the designating former spouse.
(c) A business entity, employer, pension trust, insurer, financial institution, or other person obligated to pay
retirement benefits or proceeds of a financial plan covered by this section who pays the benefits or proceeds to
the beneficiary under a designation of the other former spouse that is not effective under Subsection (a) is
liable for payment of the benefits or proceeds to the person provided by Subsection (b) only if:
(1)
written notice at the home office or principal office of the payor from an interested person that the
designation of the beneficiary or fiduciary is not effective under Subsection (a); and
(2)
jurisdiction in accordance with the Texas Rules of Civil Procedure.
(d) This section does not affect the right of a former spouse to assert an ownership interest in an undivided
pension, retirement, annuity, or other financial plan described by this section as provided by this subchapter.
(e) This section does not apply to the disposition of a beneficial interest in a retirement benefit or other financial
plan of a public retirement system as defined by § 802.001, Government Code.
b. Pension Accounts Casebook 333-41
Pension Accounts
 Defined benefit plans: Guaranteed benefit for life (not after death). Employer agrees to make payments
after retirement. Make annuity payments, which continue until death.
 Defined contribution plans: More relevant for estate planning b/c there will be money left over in the
account if you die before you use it all (benefits after death). Employee & employer contribute. Participant bears
market risk.
o ERISA statute controls the aspects of these pension plans (Federal law)
Texas Law on pension accounts
 Divorce can revoke pension plan if waiver and assignment of benefits in the divorce decree are specific
enough

Eggelhoff v. Egelhoff
Supreme Court of the United States, 2001
532 U.S. 141, 1221 S.Ct. 1322, 149 L.Ed.2d 264

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 Facts: Washington statute said that a pension benefits to an ex-wife is invalid.  Egglehoff had a pension
plan and designated his wife as beneficiary. Two months after they divorced, he died intestate.  Debate over
whether ERISA pre-empts the Washington state statute.  It pre-empts if it “relates to” an employee benefit plan. 
 Holding: ERISA pre-empts state statute – pension benefits to an ex-wife are valid—does not
automatically revoke ex-wife as beneficiary like the state law
o Also, said that slayer statutes would not be pre-empted by ERISA because most states have slayer
statutes
o J. Breyer’s opinion: ERISA should not pre-empt the divorce revocation statute. 
o Tate likes Breyer’s opinion b/c result the majority reaches seems to conflict with the couple’s
intents. This case may be decided wrongly since all the states are trying to distinguish it (see below). 
o Distinguished slayer stautes. Not worried if those are preempted by ERISA. (Breyer disagreed:
people don’t have the awareness/time to change beneficiary designations—most T&E lawyers would agree that
we shouldn’t have separate rules for wills as for will substitutes.)
 Rule: ERISA preempts a state statute that provides for the automatic revocation of a spouse as the
designated beneficiary of a nonprobate asset upon the couple’s divorce.
 Case not well received in lower courts. They don’t apply state statute, but rather, federal common law.
o TX Case says that pension plan designation can be revoked at divorce provided that the waiver is
specific enough in the divorce (said they were applying federal CL). Courts’ creativity suggests to Tate that this
decision was wrong.

Former spouse can assign through QDRO to substitute another person

How do you avoid this?- get a QDRO to change beneficiarie
Same Texas Family Code §9.302- divorces remove spouses as beneficiaries of retirement accounts

Keen v. Weaver (Texas case, same issues as US SC)

 Holding: divorce can revoke a pension plan beneficiary designation if the waiver and
assignment of the pension benefits in the divorce decree is specific enough. 
 They got around the Egglehoff opinion by saying they were following federal common law
rather than following the TX state statute (which, under Egglehoff would have been preempted by ERISA)

c. Brokerage and Bank Accounts p. 341-42, Ex. 16C (TPBC §§ 439(a), 451, 452, 454)
Joint tenants in bank accounts and realty (non-probate property—automatically passes)
 General rule in bank accounts: Each person can draw on the account and the remainder belongs to the
survivor. There is no power of disposition—it will necessarily go to your surviving spouse
 In bank accounts, if you decide you don’t want a joint tenancy, you can just withdraw all the money and
put it somewhere else.
 Either party can unilaterally withdraw from the bank account – this is why they are called pure will
substitutes
 Joint BA with right of survivorship—either party can withdraw and the amt goes to the survivor.
Possible in TX to do this, but have to explicitly state the condition of survivorship in the agreement.
(When you go to the bank, not enough to open a joint account—have to be more specific.)
o CP: Used to not be able to create a right of survivorship for the surviving spouse in that. C’l
amendment allows spouses to create an agreement in writing signed by both spouses. Why
would you do this? Avoid probate, but not good reason in TX b/c our probate system OK.

Varela v. Bernachea
Ct. of App. Florida, 2005 917 So. 2d 295
Facts: person not wife added under joint acct. with survivor rights, gets credit card.
B- lacked donative intent, sole owner

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V- donative intent, joint owners

Presumption, of donative intent w/ funds of one person, rebutted by CCE
Holding: no restrictions- so joint survivor, has access to the

If convenience or POD acct., other does not have access. Survivor not entitled to balance at death for
convenience account.

Texas law on bank accounts

 In TX, two people can open a joint bank account with right of survivorship if the agreement is
explicitly stated. 
 It is NOT presumed that there is a right of survivorship even if the property is community property
and the people are H&W- this must be explicitly stated
 You can create a right of survivorship in community property §451-452
 Reason for this is step-up in basis at death
 Can be revoked according to its terms, if no terms,
 Written agreement by both spouses
 Written agreement by one spouse given to the other
 TPBC 451 and 452: Agreement must be in writing and signed by both spouses

Texas Probate Code § 439. Right of Survivorship

(a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or
parties against the estate of the decedent if, by a written agreement signed by the party who dies, the
interest of such deceased party is made to survive to the surviving party or parties. Notwithstanding any
other law, an agreement is sufficient to confer an absolute right of survivorship on parties to a joint
account under this subsection if the agreement states in substantially the following form: "On the death
of one party to a joint account, all sums in the account on the date of the death vest in and belong to the
surviving party as his or her separate property and estate." A survivorship agreement will not be inferred
from the mere fact that the account is a joint account. If there are two or more surviving parties, their
respective ownerships during lifetime shall be in proportion to their previous ownership interests under
§438 of this code augmented by an equal share for each survivor of any interest the decedent may have
owned in the account immediately before his death, and the right of survivorship continues between the
surviving parties if a written agreement signed by a party who dies so provides.

Texas Probate Code § 451. Right of Survivorship

At any time, spouses may agree between themselves that all or part of their community property, then
existing or to be acquired, becomes the property of the surviving spouse on the death of a spouse.

Texas Probate Code § 452. Formalities

An agreement between spouses creating a right of survivorship in community property MUST be in writing
and signed by both spouses. If an agreement in writing is signed by both spouses, the agreement SHALL
be sufficient to create a right of survivorship in the community property described in the agreement if it
includes any of the following phrases:
(1)
(2)
(3)
(4)
An agreement that otherwise meets the requirements of this part, however, shall be effective without
including any of those phrases.

Texas Probate Code § 454. Transfers Nontestamentary

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Transfers at death resulting from agreements made in accordance with this part of this code are effective by
reason of the agreement involved and are not testamentary transfers. Such transfers are not subject to the
provisions of this code applicable to testamentary transfers except as expressly provided otherwise in this
code.

C. Joint Tenancies/Tenancy in Common in Realty Casebook: 344-45, Ex. 17

 Imperfect will substitute—cannot change them after you’ve created the JT. By contrast, a joint bank
account can be unilaterally withdrawn. If A put $100K in there, then made B your JT, A can take the $
out and B has no interest in it. Bank account is a perfect will substitute—can do all functions of a will.

Texas Law on Real Property

 In Texas, joint tenancy of land can be created if parties agree in writing to a right of survivorship
 Joint tenancies of land in TX are rare because:
o Prior to 1987, community property could not be held with right of survivorship
o They create a present interest in each of the tenants
o Cannot revoke a joint tenancy. That is why joint tenancy in land is an “imperfect” will
substitute

Texas Probate Code § 46. Joint Tenancies

(a) If two or more persons hold an interest in property jointly, and one joint owner dies before severance, the
interest of the decedent in the joint estate shall not survive to the remaining joint owner or owners but
shall pass by will or intestacy from the decedent as if the decedent's interest had been severed. The joint
owners may agree in writing, however, that the interest of any joint owner who dies shall survive to the
surviving joint owner or owners, but no such agreement shall be inferred from the mere fact that the
property is held in joint ownership.
(b) Subsection (a) does not apply to agreements between spouses regarding their community property.
Agreements between spouses regarding rights of survivorship in community property are governed by Part
3 of Chapter XI of this code.

Holmes v. Beatty-this case makes the law more predictable.

Totten trust- not really a trust. It is a POD designation done before you had specific statutes.

POD beneficiary has to survive depositor under Texas and UPC. UPC has anti-lapse statutes for POD's. Not
the rule in Texas

Revocable trust helps you deal for incapacity. You can name yourself as the original trustee, but have
someone take over.

Pour over wills allow testator to put the residue in the trust in case he forgets to transfer some of his property
tot he trust. Texas 58a is similar to 2-511 UPC.

Texas and UPC cover written revocable trust in regard to divorce.

Brinker v. Wobaco Trust Ltd.

Ct. of Civ. App. Texarkana 610 S.W.2d 160 (1980)
Facts: brought by kids to construe/reform trust to exclude kids born to 2nd marriage
make constructive trust of asserts removed from estate and put into Bahamian trust
1st marriage- 2 kids (death)
2nd marriage- 2 kids (divorce)
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Norman settlor, Maureen and Bank trustees,

maureen died, residuary went to family trust
paid to “issue of settlor”
2 other trusts for first 2 kids to “settlor’s issue then living”
took money from family trust and put in Wobaco Trust in Bahamas for tax reasons, he told the girls after the
divorce

issue of the settlor- meant kids from their marriage

didn’t want to include other kids

If not a will plain meaning rule does not apply applies to inter vivos trusts and other written instruments
plain meaning rule: for wills

Good reasons to set these up:

Testamentary tr

Have to transfer property to the trust, or pour-over will

Clymer v. Mayo
473 N.E.2d 1084 (Mass. 1985).
Life insurance trust, changes policy to go to someone, but doesn’t change trust

By its terms, the statute revokes ex-spouses’ interest under will

Court: finds legislative intent to extend this to revocable trust

Texas law: since 2005- §472- non-testamentary are revoked by divorce

Joint tenancy of Land

Not often in Texas (couldn’t have right of survivorship in community property)
Title insurance companies wouldn’t issue policies if there was a right of survivorship
Problems going from CP to SP state- set it up as joint tenancy, lose step-up in basis

Problem as will substitute- giving interest to other person, not revocable

D. Planning for Incapacity

1. Durable Power of Attorney Casebook: 345-50

 Lasts beyond the principal’s incapacity. If the P becomes incapacitated, the durable power still intact and
can manage during P’s incapacity.
 Doesn’t survive the P’s death. If P dies, durable POA doesn’t survive. Not a probate avoidance
mechanism/not a will substitute. Just allows someone else to vanish the property.
 Trustee has broader powers and the trust can survive the death of the settlor or trustee. Trust can be a
probate avoidance mechanism/will substitute.
 People w/o a lot of money cannot create a trust, but trust is better option than DPOA.

Vocabulary
 Person executing power – principal
 Person receiving power – agent or power of fact

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Ordinary Power of Attorney (POA)

 Simple instrument that assigns to someone else (agent) some of the power you (the principal) have
with respect to your property or your healthcare.
 Can be: specific and comprehensive, or general and in indefinite duration. Power continues until it
is revoked.
o Specific E.g., married couple wants to buy a house in another state, but H is in another state
and can’t leave. H can give W the POA. Gives W power to do the house closing. This one
ends when the transaction is complete.
o General: May be revoked if person becomes incapacitated. E.g., if you go on a long trip
overseas and didn’t know when you’d return, you might give power to someone to make
decisions and do things for you while you’re away.
 Power ends/is not effective when principal become incapacitated (unlike DPOA)

Durable Power of Attorney (DPOA)

 Remains effective during periods of incapacitation.
 Use this to protect oneself
 Durable power ceases when the principal dies = holder of the power can make no transfers after the
principal’s death (die = no power anymore)
 Without it, state law will determine who has the authority to manage the incapacitated persons affairs
and make decisions on their behalf – they become the conservator and/or guardian.
o Preference – Spouse, Adult Children, Parents
 The agent who operates under the power of attorney has a fiduciary duty to the principal…. But this
is not the same level of fiduciary duty that a trustee has to the beneficiaries of a trust.
 An agent can not execute a will under a power of attorney on behalf of the principal… only the
testator can execute a will. But CAN draft a trust b/c a will is more of a personal expression of the
intent of D.

DIFFERENCE Between TRUST and DURABLE POWER OF ATTORNEY

 Agent cannot act after death of principal – if the agent dies the power terminates unless a successor
agent is named by the principal; durable power does not avoid probate
 Trust continues after the settlor’s death, transferring property w/o probate.
 If a trustee dies, a successor trustee is appointed by a court, a trustee has title to the trust assets and
generally has all the powers an owner has, trustee can sell and reinvest the trust property
 Authorizations/powers: Holder of a durable power cannot make a will for the principal, but may be
authorized to amend or revoke an existing trust, make financial or medical decisions, POD
designation, sever joint tenancies, or make lifetime gifts of the incompetent’s property. (Will is more
person and letting the durable power of atty draft it would violate the wills act.)
 Better at persuading third parties- because more use it
Hypos
1. Frances: Brother sells house to pay for her medical care. Problem: If she leaves a will giving
her house to someone, it could be adeemed and no longer belong to the estate and that person
wouldn’t get the house. Should we say that the devise is adeemed? If brother sells house, should
be adeemed (failure of a specific gift) [p.248, Crosby case]. Holders of a DPOA does hold a
fiduciary duty to the principal, it just might not be as rigid as a trustee.
2. Mother gives daughters money every year. Mom gives Danny DPOA. Do the daughters have
to return their gifts to the estate when the D continued giving gifts after M was incapacitated?
Unless you have the power to make gifts, then you cannot make gifts and expect to be able to keep
them after the person dies.

Franzen v. Norwest Bank Colorado

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955 P.2d 1018 (Colo. 1998)

 Facts: power of atty to brother did not specifically reference a specific trust by name, debate over
whether the brother (who has power of atty) has the power to remove bank as trustee and revoke the
trust
 Holding: Power of atty has power to make decision about trusts – as long as he is given the power to
control the trusts in a general sense – do not have to specifically mention which trusts, a general
reference is good enough
 Involved DPOA and a trust. Widow given right to revoke the trust. She said she didn’t want to do
this, and the bank continued to administer the trust. She appointed her bro as agent under DPOA.
Brother attempted to revoke the trust. Does the brother have the authority to do this? Court said this
authority was sufficient to allow the agent to revoke this particular trust. Generally, is enough to
revoke the trust. Unlikely to have reached same result if the DPOA had not referred to revoking trust
as a power.

2. Advance Directives (Living Will) Casebook: 350-60

Methods for Carrying Out Advance Directive
1. Living Will / Medical Directive / Advance Directive: specify either generally or by way of hypo
example how one wants to be treated in end-of-life situations or in the event of incompetence (how,
not who makes decisions)
 coma, incapacitated, on life support—want to be taken off life support
 Why is the default rule to keep people alive for as long as possible?
 Doctors have a lot of power in this country; maybe the state has a special purpose in
preserving life (some moral imperative to preserve life).
2. Durable Power of Attorney for Health Care / Health Care Proxy: designate an agent who will make
healthcare decisions for the PT; power of the agent does not expire with the principal’s incompetency
 Instructional—living will; allows you to specify what you want to happen in several
scenarios.
 Medical—Transfers decision making to someone else.
 Which is better depends on whether you trust a person to make those kinds of decisions
for you. If you want to make all decisions, I is better. If you trust someone else, M is ok.
Can do both.
 Proxy: DPOA for healthcare
3. Hybrid: directing treatment preferences and designating an agent to make substituted decisions; Uniform
Health-Care Decisions Act

Bush v. Schiavo
Supreme Court of Florida, 2004
885 So.2d 321
 Summary: no advance directive, H was appointed guardian and wanted to remove life support,
H won over her parents.

V. T R U S T S

A. Introduction Casebook: 485-98

 Delivery establishes a trust.
 Benefits:
o Equitable LE
o Legal LE—problems: lack of freedom of using and disposing of the property

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 Tate doesn’t know of a case when this is better.

 Parties
o Settlor – person that creates the trust and donates the property to the trust
o Trustee – person who manages the trust on behalf of the beneficiaries
o Beneficiaries – May include the trustee, but can not be limited to the trustee
 Merger: If the trustee and the sole beneficiary are the same person, then the legal and equitable
estates merge into one estate.
 Creation:
o Can be made during a person’s life, but can start at the start OR end of someone’s life.
o Can be created by will or a separate document
o Often lasts a certain number of years, ex. till beneficiary reaches a certain number of years
Trust often involves a life estate with a future interest – give remainder in fee simple to
someone else
o Beneficiary may include trustee but can’t be limited to the trustee – can’t be sole beneficiary
and trustee
o Need clear indication of intention to create a trust
o No magic words to create a trust (Courts allow informal language as creating a trust). Just has
to be clear intent of creating a trust or transferring property to the trust or to the trustee to hold
for the benefit or in trust for another.
o Ct can appoint a trustee to cure the defect if trustee not named in the trust.
 A court can find a trust even in an informal family relationship, classifying a gift from
one family member to another as a trust….
 A court can infer creation of a trust from the “intention of the donor” and the
expressed belief of the “trustee”
 Also that is required is the “intention to leave property with someone for the benefit of
another would create trust….”
 A Trustee does not have to be named, the court can appoint any or a competent person
to serve as trustee.
 Trustee has a fiduciary duty to the beneficiaries
 The trust document should spell the duties and powers of the trustee
 The Trustee once appointed would have a difficult terminating the relationship –
because of his fiduciary duty
Texas Property Code
§ 112.001. Methods of Creating Trust
A trust may be created by:
(1) a property owner's declaration that the owner holds the property as trustee for another person;
(2) a property owner's inter vivos transfer of the property to another person as trustee for the transferor or a
third person;
(3) a property owner's testamentary transfer to another person as trustee for a third person;
(4) an appointment under a power of appointment to another person as trustee for the donee of the power or
for a third person; or
(5) a promise to another person whose rights under the promise are to be held in trust for a third person.

§ 112.002. Intention to Create Trust

A trust is created only if the settlor manifests an intention to create a trust.

§ 112.031. Trust Purposes

A trust may be created for any purpose that is not illegal. The terms of the trust may not require the trustee
to commit a criminal or tortious act or an act that is contrary to public policy.

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§ 112.032. Active and Passive Trusts; Statute of Uses

(a) Except as provided by Subsection (b), title to real property held in trust vests directly in the beneficiary if
the trustee has neither a power nor a duty related to the administration of the trust.
(b) The title of a trustee in real property is not divested if the trustee's title is not merely nominal but is
subject to a power or duty in relation to the property.

Requirements for trust and trustee

 Trustee requirement: loose requirement, any competent person can serve and even if this
component of the trust is lacking, a trust will still arise and in the absence of a trustee, court will
appoint one
 Only real requirement for a trustee is for them to have something to do – a power to exercise
 Consequences of being a trustee: high consequences, stringent duties to beneficiaries, once
appointed may have difficulty getting out of it

Prob 1, p.491
O names X as trustee of Trust with the income to A for life, remainder to B. Then O delivers $100K
and the trust instrument to X and tells him that it is to be held under the terms of the trust. Then X
puts it in a safe deposit box. When O dies, instead of paying income to A, he divides the $ between D
& E who are the legatees of O’s estate.
 Has a trust been established? YES. Because the trust property was delivered to X. Doesn’t matter
if X accepts. A trust is created. If X declines, court can appoint another trustee.
 Is X a trustee? Some jurisdictions say you have to accept the role of trustee. Most say that since X
put in deposit box and took property, that’s enough to make X a trustee.
 Can A & B go after D & E? Yes. Can still recover because X as bailee had no right to give property
to D & E.

B. The Required Elements of Trust Creation

1. Intent
2. Trust Property (Res)
3. A Beneficiary
4. A Writing (?)

1. General Principles and IntentCasebook: 498-504, Ex. 18 (TPPC §§ 112.001-.002, 112.031-.032)

Clear indication of intent (not language)
 Must be clear indication of intent to create a trust – but no formal language required.

Jimenez v. Lee
Supreme Court of Oregon, 1976
274 Or. 457, 547 P.2d 126
 Facts: Daughter claimed that a trust was created by mother. Two gifts were given to the
children. The father was designated trustee and spent all of it, so she sued him. Father even stated
that he thought the money was to be held in trust for the daughter’s education.
 Normally this wouldn’t end up in court (b/c a small gift given to parent on behalf of child).
Child probably figured out that she had nothing to lose by suing her father and known.
 Rule: Where funds are held in trust for a specific purpose, the trustee will be liable for all
expenditures not related to that purpose.
 Holding: Court holds that he was in fact a trustee and holds him liable.

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o A trustee, rather than a custodianship, was created primarily from the father’s own beliefs about
his role.
o Could have given father a discretionary trust and he would have had the authority over the
property.
2. Trust Property (Res) Casebook: 508-11, Ex. 19 (TPPC § 112.005)
1. Trusts must have property; more than just land, or tangible objects, or cash.
Can include any interest in property, including future interests.
 Examples: Contingent remainders, leasehold interests, choses in action, royalties, life
insurance policies
2. Cannot be a promise to pay into the future a fixed sum; cannot bind the estate
to pay; must specify how the estate will fund the obligation and from which property it will come from.
This way there is defined differentiation between an estate debt and a trust.
3. A resulting trust – is created when the transferring of all the property into a
trust ultimately fails. The resulting trust is created, requiring the return of the property to the reversionary
interest of the failed trust.

Texas Property Code

§ 112.005. Trust Property
A trust CANNOT be created UNLESS there is trust property.

Unthank v. Rippstein
Supreme Court of Texas, 1964
386 S.W.2d 134
 Facts: Rippstein argues that a letter from C.P. Craft days before his death was a declaration of
trust.
 Rule: A mere promise to give periodic gifts in the future will not support a finding that a trust
has been established.
 Holding: Court holds that no trust was created b/c there was no trust property and no intent to
impose duties– just said he would pay her $200/mo., but no identification of where that 200 was
coming from. Unenforceable promise to make a gift in the future. (If he had said where the $200 was
coming from, this case may have been different.)
 Compare this case with the Curralt case supra – letter for giving property in Montana – found
to be a codicil to the will). Crt doesn’t say why this is not a holographic codicil, but Tate thinks there is
as good of case for one in this case as there was in the Curralt case.

3. Beneficiary Requirement Case Book 518-28, Ex. 20

 Must be more than a generic person; must be an identifiable group of people or persons who can
enforce the fiduciary duties against the trustee. Don’t have to be born yet or yet ascertained.
 B listed as only “friends” is not descriptive enough; too indefinite.
 The class of beneficiaries must be so described that some person might reasonably be said to answer
the description. Pets/animals cannot be Bs.
 General rules of trust law require that a beneficiary can hold a trustee accountable….
 Honorary Trust
 General common law rule – animals or pets can not be the beneficiary of the trust… but the person
holding the property can choose to honor the wishes expressed in the trust.
 Texas Code § 112.037 – Trust for Care of Animal – Allows a trust for the benefit of a pet or animal.
 UPC § 2-907, p. 527
Clark v. Campbell
Supreme Court of New Hampshire, 1926

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82 N.H. 281, 133 A. 166

 Facts: Residuary beneficiaries challenged provision in will claiming “friends” was indefinite both as
to property and beneficiaries. Proponents of will argued T did not intend to create a trust, but give
outright, absolute gifts.
 Rule: Where the beneficiaries of a noncharitable trust cannot be adequately be determined, the trust
fails.
 Holding: The language in the will intends to create a trust, not an absolute gift. But, this was not a
valid trust since there were no real beneficiaries – “my friends” is not class of people who can
be identified.

In re Searight’s Estate
Ohio Court of Appeals, Ninth District, 1950
87 Ohio App. 417, 95 N.E. 2d 779
 Settlor, by will, left $1000 to his executor to pay Florence Hand $0.75 per day to care for
his dog for the rest of the dog’s life. He wanted his friend to be trustee (Florence).
 Problem: Dog cannot hold the trustee accountable for fiduciary duties, so a dog cannot be
a beneficiary of the trust.
 Trust created, but Flo isn’t the trustee, the executor is the trustee and Flo is the
beneficiary. No problem in this case, but no guarantee that Flo will use the property for the benefit of the
dog if you name her as the beneficiary.
 Rule: An “honorary trust” is valid where it is for a valid purpose and the trustee accepts
the testator’s wishes, even though there is no beneficiary who can enforce the trust.
 Perpetuities: Dog cannot be a measuring life. Assume that dogs are immortal and can live
forever, so could be paid out more than 21 years after all humans dead.
o Court gets around by saying assume normal rate of interest (6% or so), and if that
were the interest, then would run out of money in 4 years.
Problem: RAP problem—you don’t think about what is LIKELY but what MIGHT happen.

Sara vs. Primarily Primates-compare to the Holmes case where the legislature intended the statue to
interpreted broadly. In this case the court did not interpret the statute broadly to fit this situation.

statut

Texas Property Code

§ 112.037. Trust for Care of Animal
(a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust
terminates on the death of the animal or, if the trust is created to provide for the care of more than one
animal alive during the settlor's lifetime, on the death of the last surviving animal.
(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if a
person is not appointed in the terms of the trust, by a person appointed by the court. A person having an
interest in the welfare of an animal that is the subject of a trust authorized by this section may request the
court to appoint a person to enforce the trust or to remove a person appointed to enforce the trust.
(c) Except as provided by Subsections (d) and (e), property of a trust authorized by this section may be applied
only to the property's intended use under the trust.
(d) Property of a trust authorized by this section may be applied to a use other than the property's intended use
under the trust to the extent the court determines that the value of the trust property exceeds the amount
required for the intended use.
(e) Except as otherwise provided by the terms of the trust, property not required for the trust's intended use
must be distributed to:
(1) if the settlor is living at the time the trust property is distributed, the settlor; or

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(2) if the settlor is not living at the time the trust property is distributed:
(A) if the settlor has a will, beneficiaries under the settlor's will; or
(B) in the absence of an effective provision in a will, the settlor's heirs.
(f) For purposes of § 112.036, the lives in being used to determine the maximum duration of a trust authorized
by this section are:
(1) the individual beneficiaries of the trust;
(2) the individuals named in the instrument creating the trust; and
(3) if the settlor or settlors are living at the time the trust becomes irrevocable, the settlor or settlors
of the trust or, if the settlor or settlors are not living at the time the trust becomes irrevocable, the
individuals who would inherit the settlor or settlors' property under the law of this state had the settlor or
settlors died intestate at the time the trust becomes irrevocable.

4. A Writing (?) p. 528, Exhibit 21

 Default rule – requires that a trust can only be created by a writing (SOF)
 Texas – (exception to writing requirement) If you convey the property to a 3d party that is neither a
settlor nor a beneficiary with the intent to create a trust, then it will be valid without a writing. But the
trust property will only consist of personal property (?).

Texas Property Code

§ 112.004. Statute of Frauds
A trust in either real or personal property is enforceable ONLY if there is written evidence of the trust's
terms bearing the signature of the settlor or the settlor's authorized agent. A trust consisting of personal
property, however, is enforceable IF created by:
(1) a transfer of the trust property to a trustee who is neither settlor nor beneficiary if the transferor expresses
simultaneously with or prior to the transfer the intention to create a trust; or
(2) a declaration in writing by the owner of property that the owner holds the property as trustee for another
person or for the owner and another person as a beneficiary.

Trustee response doesn’t matter

For oral trust, must be proved by CCE
Texas left that out

Texas law on writing requirement

 Both trusts for real property and personal property have to be in writing
 Exceptions for personal property
o Transfer of trust property to a trustee who is neither settlor nor beneficiary OR
o Declaration in writing by the owner of prop that the owner holds the prop as trust for another
person or for the owner and another person is named beneficiary

Ayers
Facts:
Problem: were missing complete transfer of the trust property
Maintained control of the bank account

C. Rights of the Beneficiary to Distributions Casebook: 533-43, Ex. 22

What can you do with a trust? T’s discretion varies:
 Mandatory: Has to pay all income to beneficiaries. No discretion as to how to distribute.
Just acct mgr.

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 Discretionary: Trustee gets to decide how to manage the property and how much to give the
beneficiary or how to divide among different beneficiaries. (Giving T too much allows misuse and problems
with ownership of the trust property.)
 Has duty of inquiry into whether the conditions of the B are such that he is entitled to a
distribution or a change in the distribution.
 Can have a combination of both—mandatory amt, but can give some to the principal.

Exculpatory clauses
 Exculpatory clause: excuses trustee from liability, except for “willful neglect or default.” (maybe not
ethical)
 UTC: Presumption that if an attorney who is also the trustee drafts the trust, it is presumed invalid
o Overcome by showing that the clause was fair under the circumstances and that its existence
and content was adequately disclosed to the settlor.
 If trustee is not an atty and he drafts the document  safe harbor provision.
 Texas Property Code - § 114.007: Don’t have burden shifting to the T to establish that it was fair, but
you can still set aside the ex clause if you can show it was put in there as the result of an abuse of fed
duty or confide relationship. Not fid to beneficiary but to the settlor.
o Cannot exculpate for breach of trust committed in bad faith, intentionally, or w/reckless
indifference
o Void to the extent it is inserted into the trust instrument as a result of abuse of a fiduciary or
confidential relationship.

Texas Property Code

§ 114.007. Exculpation of Trustee
(a) A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that the
term relieves a trustee of liability for:
(1) a breach of trust committed:
(A) in bad faith;
(B) intentionally; or
(C) with reckless indifference to the interest of a beneficiary; or
(2) any profit derived by the trustee from a breach of trust.
(b) A term in a trust instrument relieving the trustee of liability for a breach of trust is ineffective to the
extent that the term is inserted in the trust instrument as a result of an abuse by the trustee of a fiduciary
duty to or confidential relationship with the settlor.
(c) This section applies only to a term of a trust that may otherwise relieve a trustee from liability for a
breach of trust. Except as provided in Section 111.0035, this section does not prohibit the settlor, by the
terms of the trust, from expressly:
(1) relieving the trustee from a duty or restriction imposed by this subtitle or by common law; or
(2)
or restriction imposed by this subtitle or by common law.

In re Estate of Fournier- George asked two of his friends to hold $400,000 for his sister. He wanted it all
to go to one sister because the other sister was well off. Apply UTC. Oral trusts have to be proved by clear
and convincing evidence. This court decided the trust meets the standard. The sister gets the money. This
case would have come out the same in Texas.

Texas uses formalistic rules.

Marsman v. Nasca

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Massachusetts Appeals Court, 1991

30 Mass. App. 789, 573 N.E.2d 1025
 Facts: Trust said to provide for the “comfortable support and maintenance of the beneficiary”
(payments were mandatory, but the amt was discretionary). T was given absolute discretion. Trust
included an exculpatory clause drafted by the lawyer who was also the T. The clause said that the T
wouldn’t be liable unless willful neglect/default. Beneficiary lost his house b/c he didn’t have enough
money, so asked T for some of the principle.
 Rule: Where a trust give the trustee a discretionary power to pay amounts of the principal for he
comfortable support and maintenance of a beneficiary, the trustee has a duty to inquire into the
financial resources of that beneficiary so as to recognize his needs.
 Holding: Court held there is a duty of inquiry on a trustee to inquire into the financial resources of
that beneficiary so as to recognize his needs when the trust has a provisions such as this in it. The
trustee never really has sole discretion. How can you breach your fiduciary duty if there is no
restraint on how you handle the property.
o Trustee has fiduciary duties even when he’s given broad trust powers.
o Office of trustee involves serious duties
o Tate thinks an atty shouldn’t serve as a trustee unless the trustee is related to them
 She can’t get house- bona fide purchasers
 Can’t get money from trustee
 Uniform Trust Code
o If drafted by trustee, they must prove it’s fair
 If independent lawyer reviews it, it’s ok
D. Rights of the B’s Creditors

1. Discretionary (& Protective) Trusts Case Book 544-47

 Where a trust is discretionary, the creditors cannot get to the trust assets or income from the trust directly.
They are limited to pursuing the income after payment to the beneficiary.
 However, this does not apply to children, spouses, and ex-spouses.

Discretionary trusts
 CL: Traditional view is that a creditor cannot reach a beneficiary’s interest.
 UPC: adopts CL rule w/ an exception for court-ordered claims for a child of spouse or former spouse of
beneficiary
 Restatement: Takes the view that Creditor’s can stand in Beneficiary shoes and demand payment

Hamilton v. Drogo
Procedure where beneficiary doesn’t get paid unless creditor gets paid
Doesn’t guarantee they get anything
Pros: beneficiary can settle amt. due, might be easier to assign

Rather than give money to A, X will pay bills indirectly

Can’t be done, even if trust allows it

If support trust, creditor who furnishes necessaries can compel distribution for beneficiary, even if trustee
thinks otherwise

Uniform Trust Code has gotten rid of distinction between support/discretionary trusts

p. 613- Third Restatement of Trusts- B is insolvent, T refuses, creditor tries to compel distribution to get it

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nothing says C is necessaries, child support, etc. can’t bring something in

612- §60 if terms of trust, creditor is allowed to attach, but comment suggests opposite result

Uniform Trust Code § 504. Discretionary Trusts; Effect of Standard

(a) In this section, “child” includes any person for whom an order or judgment for child support has been
entered in this or another State.
(b) Except as otherwise provided in subsection (c), whether or not a trust contains a spendthrift provision, a
creditor of a beneficiary may not compel a distribution that is subject to the trustee’s discretion, even if:
(1) the discretion is expressed in the form of a standard of distribution; or
(2) the trustee has abused the discretion.
(c) To the extent a trustee has not complied with a standard of distribution or has abused a discretion:
(1)
beneficiary for support or maintenance of the beneficiary’s child, spouse, or former spouse; and
(2)
equitable under the circumstances but not more than the amount the trustee would have been required
to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not
abused the discretion.
(d) This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for
an abuse of discretion or failure to comply with a standard for distribution.
(e) If the trustee’s or cotrustee’s discretion to make distributions for the trustee’s or cotrustee’s own benefit
is limited by an ascertainable standard, a creditor may not reach or compel distribution of the beneficial
interest except to the extent the interest would be subject to the creditor’s claim were the beneficiary not
acting as trustee or cotrustee.

Protective Trusts
 In England and rest of world, cannot create spendthrift trust – so create a protective trust that pays
income to beneficiary, but if creditors attach the interest, than it becomes a discretionary trust rather than
a mandatory trust.

2. Spendthrift Trusts (Mandatory) Case Book 547-57, Ex. 23

Trust that (1) prohibits the B’s interest from being assigned & (2) also prevents a creditor (tort creditor) from
attaching that interest. Just have to say in the instrument that this is the kind of trust you’re creating.
 If debtor/beneficiary cannot transfer interest (no alienability) then creditors and tort creditors cannot
reach the interest. Under a spendthrift – beneficiary cannot transfer interest UNTIL they get the $.
 However, this does not apply to children, spouses, and ex-spouses. – Public Policy demands family
support payments….
 Texas – probably reaches the same result as it relates to child support, but not spousal support
payments.
 Almost all states recognize these.

By creating a spendthrift trust, the beneficiary has a guaranteed right to receive money from trust.
Creditors cannot reach interest by not allowing a beneficiary to alienate her interest, this is true even if trust
provides for mandatory payments to beneficiaries.
 Exceptions
o A person who has furnished necessary services or support (doctor, grocer) CAN reach the
beneficiary’s interest in a spendthrift trust.
o Child support and alimony can be taken out of a spendthrift trust if there’s a valid judgment
(in the majority of states)
 In most states, trusts are not spendthrift unless the settler expressly inserts a spendthrift clause.

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 Protective trust: a trust that pays income to the beneficiary, but if the beneficiaries’ creditors try to
reach the trust, then the trust turns into a mandatory trust/ spendthrift trust.
 Unless specified in the provisions, the beneficiary ordinarily has the power to transfer his interest in the
trust. If the beneficiary has the ability to transfer his interest in the trust, then creditors can get to his interest in
the trust as well.

 Uniform Trust Code

o § 502: ST restrains both voluntary and involuntary transfers of the beneficiary’s interest.
o § 503: Exception for child, spouse, or former spouse for support and maintenance
 Can not be reached even in bankruptcy.

 Texas Property Code 112.035

o Can be created in Texas… use of the term “spendthrift trust” is sufficient to restrain alienation
o If the settlor is also a beneficiary, then creditors can reach his interest in the trust.
o Can take child support payments out of a spendthrift trust (but not alimony since we don’t
technically have that in Texas).
o ST can be considered a material purpose in Texas. TX law is more pro-beneficiary about this
than the current UCC. (Therefore if beneficiaries seek to terminate a trust, they can argue that the
material purpose of a the spendthrift trust has been accomplished. See termination below.)
Texas Property Code § 112.035. Spendthrift Trusts
(a) A settlor may provide in the terms of the trust that the interest of a beneficiary in the income or in the
principal or in both may not be voluntarily or involuntarily transferred before payment or delivery of the
interest to the beneficiary by the trustee.
(b) A declaration in a trust instrument that the interest of a beneficiary shall be held subject to a "spendthrift
trust" is sufficient to restrain voluntary or involuntary alienation of the interest by a beneficiary to the
maximum extent permitted by this subtitle.
(c) A trust containing terms authorized under Subsection (a) or (b) of this section may be referred to as a
spendthrift trust.
(d) If the settlor is also a beneficiary of the trust, a provision restraining the voluntary or involuntary transfer
of the settlor's beneficial interest does not prevent the settlor's creditors from satisfying claims from the
settlor's interest in the trust estate. A settlor is not considered a beneficiary of a trust solely because a
trustee who is not the settlor is authorized under the trust instrument to pay or reimburse the settlor for, or
pay directly to the taxing authorities, any tax on trust income or principal that is payable by the settlor
under the law imposing the tax.
(e) A beneficiary of the trust may not be considered a settlor merely because of a lapse, waiver, or release of:
(1) a power described by Subsection (f); or
(2)
property affected by the lapse, waiver, or release in any calendar year does not exceed the greater of
the amount specified in:
(A) §§ 2041(b)(2) or 2514(e), Internal Revenue Code of 1986; or
(B) § 2503(b), Internal Revenue Code of 1986.
(f) A beneficiary of the trust may not be considered to be a settlor, to have made a voluntary or involuntary
transfer of the beneficiary's interest in the trust, or to have the power to make a voluntary or involuntary
transfer of the beneficiary's interest in the trust, merely because the beneficiary, in any capacity, holds or
exercises:
(1) a presently exercisable power to:
(A) consume, invade, appropriate, or distribute property to or for the benefit of the beneficiary, if
the power is:
(i) exercisable only on consent of another person holding an interest
adverse to the beneficiary's interest; or
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(ii) limited by an ascertainable standard, including health, education,

support, or maintenance of the beneficiary; or
(B) appoint any property of the trust to or for the benefit of a person other than the
beneficiary, a creditor of the beneficiary, the beneficiary's estate, or a creditor of the beneficiary's
estate;
(2) a testamentary power of appointment; or
(3) a presently exercisable right described by Subsection (e)(2).

Texas Family Code § 154.005. Payments of Support Obligation by Trust

(a) The court may order the trustees of a spendthrift or other trust to make disbursements for the support of a
child to the extent the trustees are required to make payments to a beneficiary who is required to make
child support payments as provided by this chapter.
(b) If disbursement of the assets of the trust is discretionary, the court may order child support payments
from the income of the trust but not from the principal.

Uniform Trust Code § 502. Spendthrift Provision

(a) A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a
beneficiary’s interest.
(b) A term of a trust providing that the interest of a beneficiary is held subject to a “spendthrift trust,” or
words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the
beneficiary’s interest.
(c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except
as otherwise provided in this [article], a creditor or assignee of the beneficiary may not reach the interest or
a distribution by the trustee before its receipt by the beneficiary.
Uniform Trust Code § 503. Exceptions to Spendthrift Provision
(a) In this section, “child” includes any person for whom an order or judgment for child support has been
entered in this or another State.
(b) A spendthrift provision is unenforceable against:
(1) a beneficiary’s child, spouse, or former spouse who has a judgment or court order against the
beneficiary for support or maintenance;
(2) a judgment creditor who has provided services for the protection of a beneficiary’s interest in the
trust; and
(3) a claim of this State or the United States to the extent a statute of this State or federal law so provides.
(c) A claimant against which a spendthrift provision cannot be enforced may obtain from a court an order
attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the
award to such relief as is appropriate under the circumstances.

Self-Settled Asset Protection Trust

 Trust in which settlor transfers $ to a trust with himself as the beneficiary, but makes it a spendthrift
trust. This must be done before the creditors’ claims arise. This isn’t really allowed in most states
(it’s kind of unethical).
 Lets someone put property into a trust, naming himself as B and making it a ST so it cannot get to the
creditors. (Dr. who causes a lot of med mal). Can’t do this if after the tort or debt created, but can do
beforehand.
 Tate: thinks it’s okay if we allow these since the issue here really comes down to notice. The
creditors will NOT rely on the money in the self-settled asset protection trust if they know they will
not be able to touch it. However, Tate thinks that tort creditors should be able to reach these types of
trust. I.e., doctors and lawyers should not be able to use these to shield themselves from malpractice
suits.

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 Self-settled asset protection trust: does NOT allow self-settled asset protection trusts – creditors can
reach these.
 Not allowed in Texas or UTC
 NOT REACHABLE IN BANKRUPTCY

Shelly v. Shelly- Shelly children get income and principal as beneficiaries. Ex-wife can get income but
not principal.
Scheffel (π) v. Krueger (∆)
Supreme Court of New Hampshire, 2001
146 N.H. 669, 782 A.2d 410
 Summary: Mother, a tort creditor, was not able to reach the spendthrift trust of her husband, who had
sexually molested their child and then disappeared after there was a criminal and civil judgment
against him. (by it’s plain language, the statute did not provide for a tort creditor exception) There is
no distinction b/w tort creditors and regular creditors. (even w/ public policy reasons)
 Rule: Spendthrift trust assets are not reachable by tort creditors even when the beneficiary’s conduct
constitutes a criminal act, unless the beneficiary is also the settler or the assets were fraudulently
transferred to the trust. No exception for tort creditors.
 Tate thinks ST shouldn’t be protected from tort creditors b/c goes against PP. Go around committing
torts.
 If a voluntary creditor, then had the ability to negotiate.
 Once paid, the victim can get it from the other person
 Should a ST have a tort victim exceptions?
o Testator’s intent might be for beneficiary to pay for this
o Allow modification and termination

Shelley v. Shelley
354 P.2d 282 (Or. 1960)
 Summary: Runaway husband’s spendthrift trust was subject to the claims of a beneficiary’s children
and former wives – they could get to the $ in the trust. Deadbeat dad was the B. Part ST and part
discretionary. Could wife and kids get to the trust?
o Both spouses and kids could get the interest, but could not reach the principle as creditors b/c
that was discretionary. Kids able to get that $ anyway b/c clause said that in case of
emergency, kids could get the principle.
o If this was in TX, probably get same result w/kids b/c TX lets kids attach ST trust and the
income w/discretionary trust, they can’t get principle, but b/c they’re beneficiaries, could get
the principle; but no provision for spouses in TX. Could argue that this makes sense b/c
although kids didn’t choose to be born of this person, the spouses did choose that person when
they married and so more like voluntary creditors, who had ability to negotiate.
 Texas family code – court may order trustees to disperse money from spendthrift trust
for child support purposes – only entitled to income, not principal.
 No similar provision in code for alimony – so former wives would not be able to
attach alimony.
p. 615
kids can get interest in spendthrift trust, not clear that he wouldn’t want them to take

E. Flexibility: Powers of Appointment, Modification, & Termination

1. Powers of Appointment Case Book 589-91

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The right to designate the new owner of property or trust beneficiary (next to take an interest in some
property).
 If the trustee (or another person) has any discretion of disposition – then he or she has
power of appointment. Allows for great flexibility of disposing of one’s property. (most trust involve
some power of appt, even if just distributing assets at death)
 When tied to the trust, it grants the power to appoint new beneficiaries and how
property will be distributed at the termination of the trust.
 Ex. put property in trust, then give trustee of life estate beneficiary the power to decide who gets
what according to your guidelines or can give them complete discretion
 Ex. Trust may specify who gets how much or how many people may get it. Trustee must divide
up b/w children for example.
 Right to transfer/alienate property is one of the bundle of sticks; distinct from right to exclude others.
Can be severed and given to another. When giving POA, giving your right to transfer to another person.
 WHO: Most trusts involve some POA. T has some authority to distribute the income or the principle
among a group of designated persons. Might specify more or less how much each person should get and
have a narrow group of people that the trustee can distribute. But if T has any discretion, then T has a
POA.
 Non-trustees can also have this. Common for a life-estate beneficiary to have that power. H
creates a trust for W for life, then W decides how much property each child gets after she dies.
(E.g., daughter has testamentary power of appointment).
o If the donee of the power is not also a trustee (just a beneficiary), then the donee has no
duties to manage the property or give an accounting.
 Purpose: Provide flexibility in dealing with the property. If you have a general idea who you want the
property to go to, but don’t know exactly who, then you can give the POA to another.
 Two kinds:
 General Powers: Power to appoint the property to anyone INCLUDING yourself, your
estate, your creditors, and the creditors of your estate exercised in fabor of the person who holds
the power. If you have the power to appoint all of those people, then you are treated as owning
the property for federal tax law purposes. (Thus subject to estate, gift tax.)
a. Exception: You might have the power to w/draw principle. Ascertainable
standard relating to your health, etc. Tax laws can treat as not a general POA.
b. Special Powers: Can’t appoint self; can only appoint others. Treated
differently for tax purposes.
 Federal Tax Laws govern. Key difference: Able to appoint yourself and others in GP.
 If you’re concerned about taxes, then this makes a difference. If you give someone a
SPOA, then not treated as owner of the property for tax purposes.
 In general it’s better to create a special power of appt if you are concerned with estate
taxes. But there may be exceptions to this. If your clt is wealthy enough to have to pay estate taxes,
do research to make sure they don’t get stuck in a higher tax bracket
 Property taxed when trust created. Not when distributed. When H makes the gift, that is
subject to gift tax. If H has used up all of his gift tax exemption, then will be taxed. If he
gives through will, then is subject to estate tax. But if H creates a generation-skipping
trust (GST). If H has used up his GST exemption, then will be taxed.
 Best to use GPOA than SPOA.

HYPO: Suppose H wants to create trust for D as the B who will get income for her life, then H wants to give
D power to decide who gets the principle after she dies. If H gives her GPOA, then that property is taxed
twice—once when H creates (by gift or will—gift or estate tax), then again when D either gives it away or
devises it by will. Unless it falls under federal exemptions, then taxed twice.

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 If H gives her SPOA, that she can appoint anyone BUT herself or creditors, then not taxed
when she appoints. Just taxed once.

2. Modification & Termination Case Book 572-85; Ex. 24

Modification:
 Claflin Doctrine – A trust can not be modified/terminated before the time fixed for termination, even if
all of the beneficiaries consent, if termination or modification would be contrary to the material purpose
of the settlor.
o If S had a material purpose of holding the property before B turned 30, then can’t modify.
o Other countries are different. England—when Bs are of legal age, can terminate the T whenever
they want. Can get it whenever they’re old enough to demand it; and if not old enough, ct can still
override that.
 Tend to give Bs anything they want.
o Cts in the U.S. are more reluctant to do that.
o Material purposes
 Spendthrift (changed in Texas)
 Discretionary
 Support
 Postponed enjoyment
 Uniform Trust Code § 412, p 577 – If the modification would further the purpose of the trust without
the need for consent of the donor/settlor, if not available, so long as all of the beneficiaries consent.
(More liberal with modifying rules)
 Material purpose – would modification to the trust defeat the material purpose… and is it necessary to
maintain the material purpose.
 Texas Property Code § 112.054
o Adopted the UTC rule: can modify w/ consent of Bs if it will further trust purpose. Court may
modify the trust “because of circumstance not known or anticipated by the settlor, the order will
further the purposes of the trust;”
o Mandatory – the court can modify the trust under this provision even if the settlor indicated he did
not want it modified.
o A trustee or beneficiary may petition the court for modification
 if the purpose of the trust has been fulfilled.
 because of circumstance not known and unanticipated by the settlor
 to satisfy tax objectives
o Must still keep the material purpose of the trust in mind.
 New Third RST: trust can be modified even if doing so will violate a material purpose of the trust if the
crt determines the reasons for modification outweigh the material purpose
o Can modify a trust even if contrary to material purpose of settlor as long as reasons for
modification outweigh the original purpose. (Tate thinks this may go too far, but basically is a
good idea.)
o Tate’s Proposal: Tate agrees with this but thinks someone should have the incentive to argue
against the modification! (so both sides are represented) Incentive should be given to the trustee
in the directions.
o Old - Second RST: only allowed modification of trust when the continuation of it would defeat
the purpose of the trust
 Ex. of changed circumstances: serious medical problem and beneficiary needs to reach the principal
before the age 3o requirement OR trust says $ can only be used for education, but learning disability
prevents him from going to college

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Incentive trusts: Settlor puts conditions on how you get the money.
 Trusts that are designed to use money to encourage, modify, or discourage certain behavior
w/incentive.
o Ex. Pays a dollar out for every dollar earned  encourages working!
o Ex. Only get money if graduate from college
 These settlors may not be happy if these provisions are modified! Tension b/w what beneficiaries
wanted and what the settlors wanted.
 Not good, says Tate. Throwing money at someone who is already interested in education would
make them think the opposite—they might think the only reason they’re doing it is to get the money.
 But good for some lazy asses who might not do anything.

Texas law on incentive trusts

 Broader than RST, same as UPC.
 Rule: can modify trust w/ consent of beneficiaries if it will further purposes of the trust. Court has
mandatory power to modify – even if settlor didn’t want modification.

Termination:
 A trust can terminate naturally when the time specified in the trust instrument has elapsed.
 The trust can be terminated when its purpose has been served.
 Bs can also terminate under certain circumstances.
 RULE: Has the material purpose been met?
 Texas Property Code § 112.051
o Settlor may revoke a trust, unless irrevocable, by the express terms of the trust.
o If a trust is created by a written instrument, then the trust can only be revoked by a written
instrument.

Probably can Revoke a Trust BY WILL

In re Trust of Stuchell
Oregon Court of Appeals, 1990
104 Or. App. 332, 801 P.2d 852
 Facts: All the beneficiaries sought to modify trust so the mentally-retarded child could NOT get the
remainder interest right away. Beneficiaries wanted trust to continue so he could still qualify for
public assistance.
o Tate: In reality, mom is just trying to get more $ to her other kids. The mentally retarded
child would be able to use his trust $ till it runs out, then he would get public assistance and
would be left on the street like the s claimed.
o Normally discretionary trusts aren’t considered available income if the settlor, here the
grandfather, had not duty to care for them – a parent would have had a duty.
 Holding: No modification. Mentally retarded child can reach trust $. Will not allow the
beneficiaries to “exploit the state treasury” like this. Doesn’t rely on PP.
o RST: Would not be able to modify under the RST either.
o Texas: broader discretion to modify, so Texas may have modified this trust
 Rule of law: under CL, cannot deviate from terms of trust merely b/c it would be advantageous to the
beneficiaries
i. In re Riddell
1. trustee appeals to create special needs trusts
a. daughter suffers schizophrenia affective and bipolar
2. parents, George and Irene, create trust for their son Ralph

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3. trust benefits to gkids until 35 and then distributions

a. he married Beverly, have 2 kids
i. 1, nancy has schizophrenia, not expected to live independently
ii. argue for special needs trust
iii. TC: advantage=no modification
2. Arg: if they had known extent, they would have modified the trust
3. Reasoning: 2 prong approach to equitable deviation
a. because of circumstances not anticipated by the settlor
i. satisfied if circumstances changed since creation
ii. settlor unaware of the circumstances
b. the modification or deviation will further the purposes of the trust
i. must find modification would advance trust purpose
1. subjective process of attempting to infer relevant purpose
of trust from general tenor of provisions

In re Estate of Brown—Spendthrift clauses

Supreme Court of Vermont, 1987
148 Vt. 94, 528 A.2d 752
 Facts: Trustee supposed to pay for nephews’ education until that is achieved, then the remainder (not
the principal) goes to a different couple so they can live a nice lifestyle, remainder to their kids.
Couple wants more than just income, they want the principal – so they petition for termination so
they could get their hands on the $.
 Holding: This trust cannot be terminated because the second and continuing material purpose of the
trust (to pay the couple so they can have a good lifestyle) has not been accomplished. Both material
purposes must be met to be terminated, not just the educational material purpose.
o NOT a support trust since not only entitled to what is necessary as support – they also get
income. They get more than just for their standard of living.
o NOT a spendthrift trust because no terms in here intend to create one.
o Family does have another option here – Can transfer their life interest to their children, then
could no longer further material purpose since kids have all the money. Since it’s not a
spendthrift trust – can assign interest to kids. (can’t assign interests in spendthrifts trusts)
 TX: 112.054(b) Is a ST provision material?: TX is pro-B, more than UTC (interesting).
 What if T not doing a good job? Not good at administering trust? Traditionally, B cannot replace T
unless a clear breach of fiduciary duty or the T is just unfit.
o TX: Can only remove if cause for removal. Cases define as something more than just ill will
or hostility between T and Bs. Just b/c they don’t get along, that’s not cause to remove T.
o UTC: Default law. Can override by a provision in the trust instrument. Specify that you
don’t want T to be removed under those circumstances.
 Texas law: more favorable to beneficiary: court shall consider spendthrift provisions as a factor,
not determinative (411(c) in UTC says that it is otherwise)
Flexibility
 Trust modification/termination
o ST clause presumed to be a material purpose of settlor in most states. Can’t change ST
provision or terminate early, b/c that would violate the material purpose, which is to protect
trust from creditors.
o UTC tried to say that this isn’t a material purpose, but state legislatures didn’t like it, so the early
adoptions of it took it out, and now UTC is silent on whether a STC is presumed to be a material purpose of the
settlor.

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o TX: Not presumed to be a material purpose of the settlor, rather, just one factor the court can
consider in deciding whether to terminate the trust. TX is more pro-B or pro-flexibility than the UTC. (Tate
says pro-flexibility)
o Brown case: Trust termination. S created trust for benefit of the kids of W&R for their
educational purposes. As long as the kids in school, they’d get funding. After school, then for
benefit of W&R, who would also get part of trust as necessary to maintain their standard of
living.
 Kids consent to have trust terminated, but T doesn’t want to do this (T likes collecting fees
from trust).
 W&R’s argument: Trust has one material purpose: education of kids, and that’s been
fulfilled, so now no bar to terminating the trust. Ct disagrees.
 Ct holds that another purpose is a steady lifelong income for W&R. Problem: W&R
say that if they don’t get all of the principle now, they will now fall below their
standard of living.
 Would termination serve the trusts purposes? Tate: Yes, it would further that purpose
by letting them maintain their standard of living now.

Judicial Modification of Trusts

UTC §411(b) All beneficiaries consent
TX §112.054(a)(5) Not inconsistent with purposes of trust
UTC §412(a) Unanticipated circumstances
TX 112.054(a)(2) Furthers purposes of trust
UTC §412 Modifying un/noneconomic trusts
TX 112.059 (difference UTC says nothing about following
settlor’s intent for administrative rules, in Texas it
applies to both
These don’t apply to trustee removal
UTC §706
TEXAS stuff ^^^ also applies to trustee removal

Texas Property Code § 112.051. Revocation, Modification, or Amendment by Settlor

(a) A settlor may revoke the trust unless it is irrevocable by the express terms of the instrument creating it or of
an instrument modifying it.
(b) The settlor may modify or amend a trust that is revocable, but the settlor may not enlarge the duties of the
trustee without the trustee's express consent.
(c) If the trust was created by a written instrument, a revocation, modification, or amendment of the trust
must be in writing.

Texas Property Code § 112.052. Termination

A trust terminates if by its terms the trust is to continue only until the expiration of a certain period or until the
happening of a certain event and the period of time has elapsed or the event has occurred. If an event of
termination occurs, the trustee may continue to exercise the powers of the trustee for the reasonable period of
time required to wind up the affairs of the trust and to make distribution of its assets to the appropriate
beneficiaries. The continued exercise of the trustee's powers after an event of termination does not affect the
vested rights of beneficiaries of the trust.

Texas Property Code

§ 112.054. Judicial Modification or Termination of Trusts
(a) On the petition of a trustee or a beneficiary, a court may order that the trustee be changed, that the terms of
the trust be modified, that the trustee be directed or permitted to do acts that are not authorized or that are

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forbidden by the terms of the trust, that the trustee be prohibited from performing acts required by the terms
of the trust, or that the trust be terminated in whole or in part, if:
(1) the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill;
(2)
purposes of the trust;
(3)
prevent waste or avoid impairment of the trust's administration;
(4)
the settlor's intentions; or
(5) subject to Subsection (d):
(A) continuance of the trust is not necessary to achieve any material purpose of the trust; or
(B) the order is not inconsistent with a material purpose of the trust.
(b) The court shall exercise its discretion to order a modification or termination under Subsection (a) in the
manner that conforms as nearly as possible to the probable intention of the settlor. The court shall consider
spendthrift provisions as a factor in making its decision whether to modify or terminate, but the court is not
precluded from exercising its discretion to modify or terminate solely because the trust is a spendthrift trust.
(c) The court may direct that an order described by Subsection (a)(4) has retroactive effect.
(d) The court may not take the action permitted by Subsection (a)(5) unless all beneficiaries of the trust have
consented to the order or are deemed to have consented to the order. A minor, incapacitated, unborn, or
unascertained beneficiary is deemed to have consented if a person representing the beneficiary's interest
under § 115.013(c) has consented or if a guardian ad litem appointed to represent the beneficiary's
interest under § 115.014 consents on the beneficiary's behalf.
Texas Property Code § 112.057. Division and Combination of Trusts
(a) The trustee may, unless expressly prohibited by the terms of the instrument establishing the trust, divide
a trust into two or more separate trusts without a judicial proceeding if the result does not impair the
rights of any beneficiary or adversely affect achievement of the purposes of the original trust. The trustee
may make a division under this subsection by:
(1)
this subsection, to each beneficiary who might then be entitled to receive distributions from the trust or
may be entitled to receive distributions from the trust once it is funded; and
(2)
take acknowledgements of conveyances of real estate stating that the trust has been divided pursuant
to this section and that the notice requirements of this subsection have been satisfied.
(b) A trustee, in the written instrument dividing a trust, shall allocate trust property among the separate trusts
on a fractional basis, by identifying the assets and liabilities passing to each separate trust, or in any other
reasonable manner. The trustee shall allocate undesignated trust property received after the trustee has
divided the trust into separate trusts in the manner provided by the written instrument dividing the trust
or, in the absence of a provision in the written instrument, in a manner determined by the trustee.
(c) The trustee may, unless expressly prohibited by the terms of the instrument establishing a trust, combine
two or more trusts into a single trust without a judicial proceeding if the result does not impair the rights
of any beneficiary or adversely affect achievement of the purposes of one of the separate trusts. The
trustee shall complete the trust combination by:
(1)
the combination, to each beneficiary who might then be entitled to receive distributions from the
separate trusts being combined or to each beneficiary who might be entitled to receive distributions
from the separate trusts once the trusts are funded; and
(2)
take acknowledgments of conveyances of real estate stating that the trust has been combined pursuant
to this section and that the notice requirements of this subsection have been satisfied.

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(d) The trustee may divide or combine a testamentary trust after the will establishing the trust has been
admitted to probate, even if the trust will not be funded until a later date. The trustee may divide or
combine any other trust before it is funded.

Texas Property Code

§ 112.059.  Termination of Uneconomic Trust
(a)
or who would be distributees or permissible distributees if the interests of the distributees or the trust
were to terminate and no powers of appointment were exercised, the trustee of a trust consisting of trust
property having a total value of less than $50,000 may terminate the trust if the trustee concludes after
considering the purpose of the trust and the nature of the trust assets that the value of the trust property is
insufficient to justify the continued cost of administration.
(b)  
consistent with the purposes of the trust.
(c) A trustee may not exercise a power described by Subsection (a) if the trustee's possession of the power
would cause the assets of the trust to be included in the trustee's estate for federal estate tax purposes.
(d) This section does not apply to an easement for conservation or preservation.
Mandatory 111.0035 p. 185- terms of the trust don’t prevenet court from having those powers
Texas Trust Code 111.0035(b)(5)(A)-power of ocurt in interest of justice can modify or terminate trust is
MANDATORY LAW
MANDATORY LAW FOR TRUSTEE REMOVAL IN TEXAS

Page 215:

Ugo Deportovno- trust with Ugo as beneficiary, half-siblings are suing him, the codicils that created the
trust, allow to go to heirs at law in LA, his heirs at law are his half-siblings, challenge by half-siblings to
guardians to modify and consolidate the 8 trusts, change the trustees HOLDING: don’t want grandson’s half-
siblings to take,

3. Trustee Removal Pp. 585-87, Ex. 25

 UTC § 706 Removal of Trustee (relaxes the traditional rule, so more pro-removal than TX)—DOES
NOT REQUIRE CAUSE
o Lets the Court remove Trustee at the option of Beneficiaries when removal serves the B’s
interests and isn’t inconsistent w/the material purpose of the trust (in best interest of Bs) and a
suitable co-T or successor is available.
o can remove if
 (1) the T has committed a serious breach of trust;
 (2) lack of cooperation among co-trustees substantially impairs the administration of
the trust;
 (3) b/c of unfitness, unwillingness, or persistent failure of the trustee to administer the
trust effectively, the court determines that removal of the T best serves the interests of
the beneficiaries; or
 (4) there has been a substantial change of circumstances or removal is requested by all
of the qualifies beneficiaries, the crt find that removal of the T best serves the interests
of all of the beneficiaries and is not inconsistent with a material purpose of the trust,
and a suitable co-trustee or successor T is available
 Traditional CL: Have to show clear breach of fiduciary duty or that T is unfit to perform T duties.
Allows removal of T when there are changed circumstances that defeat/ substantially impair the
trusts’ purpose.
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 Modern CL Rule: can remove trustee if circumstances have changed to the point that they change or
defeat the purpose of the trust
o CAN remove a trustee: who is dishonest or who has engaged in a serious breach of trust
o CANNOT remove over: a disagreement, a less-than-serious breach, charging too high of a
fee, hostility/ill will toward beneficiaries, nor if dissatisfied in general w/ performance of
trustee
o Trustee that is chosen by the settlor is less likely to be removed.
o Old CL Rule: beneficiaries could replace him if there was a clear violation of duties or a clear
indication of fitness (banks didn’t want to make it east to remove a trustee, too strict of a
rule!)
 Trust protector has fiduiciary duties to beneficiaries- default, can be opted out of
 TX (113.082): More like CL. Only allow removal for unfitness, breach of duty, or cause for removal.
—MUST HAVE CAUSE
o Cause for removal: ct discretion (but simple hostility/ill will isn’t sufficient). Must be some
kind of failure to administer the trust effectively. Requires breach of duty.
 Rosenberg case: (hypothetical problem): Named NY bank as T. After death, bank acquired by a
German bank. Beneficiaries want to remove trustee because bank involved in holocaust.
o TX: No cause for removal—moral problems with what a bank did 50 years ago isn’t valid.

Texas case, being confused is not an unanticipated circumstances

Not irrevocable just because it says forever, on the conveyances

Texas Property Code § 113.082. Removal of Trustee

(a) A trustee may be removed in accordance with the terms of the trust instrument, or, on the petition of an
interested person and after hearing, a court may, in its discretion, remove a trustee and deny part or all of
the trustee's compensation if:
(1)
attempted violation results in a material financial loss to the trust;
(2) the trustee becomes incapacitated or insolvent;
(3)
(4) the court finds other cause for removal.
(b) A beneficiary, cotrustee, or successor trustee may treat a violation resulting in removal as a breach of
trust.
(c) A trustee of a charitable trust may not be removed solely on the grounds that the trustee exercised the
trustee's power to adjust between principal and income under § 113.0211.

Cause = something like the enumerated duties

112.054- also applies to removal of trustees, and it’s MANDATORY
You can’t opt out of it, if beneficiaries agree…(LOOK AT CHART)
You can

§103 interests of the beneficiaries defined

F. Trust Administration: Fiduciary Duties (Ch. 13—Trust Administration)

3 areas are useful
1. Still might be approached to serve as a fiduciary
a. Be careful about accepting this
2. Be a beneficiary/devisee

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3. Drafting a will/trust yourself are important

1. Introduction Case Book 771-74, 777-78, Ex. 26
Texas Property Code
§ 113.001. Limitation of Powers
A power given to a trustee by this subchapter does not apply to a trust to the extent that the instrument
creating the trust, a subsequent court order, or another provision of this subtitle conflicts with or limits the
power.
§ 113.002. General Powers
Except as provided by § 113.001, a trustee may exercise any powers in addition to the powers authorized by
this subchapter that are necessary or appropriate to carry out the purposes of the trust.

Trustees, executors and administers administering an estate (in a sense executors and administers are also
trustees since they have the SAME fiduciary obligation)
 Usually T only has a short time to administer an estate—collect assets, do inventory, pay off
creditors, distribute property
 But a trust, on the other hand, can last a lot longer. Invest large sums of money over a long period of
time. Length of assignment is longer (more opportunities to breach fiduciary duties).
 Same basic duties apply to administers, executors, and trustees.
 Be careful about accepting the role of executor or trustee for a client (can get sued).
 TRUSTEES HAVE COMPLICATED RULES SO KNOW THEM

Trust Powers and Third Party Transactions with Trustees

 Trustee only has powers in the instrument (trust document) necessary to carry out the trust purposes,
but most states have widened their power through legislation:
o Settlor can incorporate these powers by reference – don’t get them automatically.
o Other state statutes gives mandatory powers to T unless trust instrument gives power to the
contrary! Texas falls into the second category – trustee has these statutory powers unless the
instrument specifically says he doesn’t get those powers.
 Traditional CL rule about 3rd parties who engage in transactions w/ trustees: Traditionally there was a
duty on a third party to inquire whether the trustee had authority to engage in a transaction (such as
selling an asset).
 UTC eliminates this duty on the third party and replaces it with a duty to act in good faith. Sec. 816
lists 24 specific transactional powers and a broad catchall.

Texas law on trustee powers and third party transactions rule

 TPPC 113.002 on trustee powers: Trustee can exercise any powers in addition to the powers
exercised by code that are necessary and appropriate to carry out powers of the trust. (general
powers, then specific powers)
o It’s a good idea to list these powers specifically in the trust – the third parties want to see a
specific list. Plus, trustee might move to another state, etc.
 Third party duty: third party does not have a duty to make sure money is put to proper use! He is not
liable if money is mishandled. No duty of inquiry!

Third-party Duty (3d parties that deal with the Trust)

 Independent 3d party could be given ability to modify the trust (“trust protector”)
o Can replace trustee
o Approve modifications to trust provisions
o Terminate trust; or
o Select a successor trust protector

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 CL: If power not necessary for trust purposes or settlor doesn’t give you, then don’t have that power;
Required the 3d party to inquire into whether the T had the authority to engage in the transaction.
 States have modified this. Two kinds of statutes:
o settlor can incorporate powers at his discretion; if don’t add the powers, they don’t apply
o grants powers to trustee unless the trust specifies the contrary (TX)
 TX: Can exercise any powers in addition to those authorized in the code that are necessary or
APPROPRIATE to carry out the purposes of the trust (enumerates the list of powers); someone who
pays money to a trust is not responsible for determining whether the T puts the $ to proper use.
o Clause in trust that T doesn’t have duty of inquiry, then don’t have to inquire into the duties of
the T. In the absence of a clause, 3d party would have a duty of inquiry to determine whether
T had authority to make that transaction. Also the 3d party is protected if they gave fair
value.
 UTC: Removed the duty of inquiry; now 3d party just has to act in good faith.
 Still good idea to put powers in the trust for various reasons (statutes change, might move to a
different jurisdiction, 3d party is comforted to see a list of powers—no confusion).

Trustees Powers: One of two options:

1. Incorporate by express reference
2. (TX) Grants to trustees basic powers: List of powers applies unless specifies to the contrary. So no
question about specific powers.

Hypotheticals
 T given power to sell certain real property under a certain condition (that it’s necessary to
provide support to A). Only have authority to sell property if necessary to support A.
o B is the buyer. What should B have done? Had lawyer review the trust to see that T is who
he says he is and how the power to do this. Is the sale of property actually necessary for the
support of A? No. But B thought that it was.
 T has no authority to buy property that doesn’t produce income. Nevertheless, Land in the
desert. No chance of getting income from the land. Should seller have to pay back the $ that
the T paid if the B complains? T who sold land would have to refund the purchase price if B
complains. (Different under UTC—if in good faith, then protected.)

Texas Property Code § 113.051. General Duty

The trustee shall administer the trust in good faith according to its terms and this subtitle. In the absence of any
contrary terms in the trust instrument or contrary provisions of this subtitle, in administering the trust the trustee
shall perform all of the duties imposed on trustees by the common law.

Texas Property Code § 113.052. Loan of Trust Funds to Trustee

(a) Except as provided by Subsection (b) of this section, a trustee may not lend trust funds to:
(1) the trustee or an affiliate;
(2) a director, officer, or employee of the trustee or an affiliate;
(3) a relative of the trustee; or
(4) the trustee's employer, employee, partner, or other business associate.
(b) This section does not prohibit:
(1)
instrument or transaction establishing the trust; or
(2) a deposit by a corporate trustee with itself under § 113.057 of this Act.

§ 113.053. Purchase or Sale of Trust Property by Trustee

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(a) Except as provided by Subsections (b), (c), (d), (e), (f), and (g), a trustee shall not directly or indirectly
buy or sell trust property from or to:
(1) the trustee or an affiliate;
(2) a director, officer, or employee of the trustee or an affiliate;
(3) a relative of the trustee; or
(4) the trustee's employer, partner, or other business associate.
(b) A national banking association or a state-chartered corporation with the right to exercise trust powers that
is serving as executor, administrator, guardian, trustee, or receiver may sell shares of its own capital
stock held by it for an estate to one or more of its officers or directors if a court:
(1) finds that the sale is in the best interest of the estate that owns the shares;
(2) fixes or approves the sales price of the shares and the other terms of the sale; and
(3) enters an order authorizing and directing the sale.
(c) If a corporate trustee, executor, administrator, or guardian is legally authorized to retain its own capital
stock in trust, the trustee may exercise rights to purchase its own stock if increases in the stock are
offered pro rata to shareholders.
(d) If the exercise of rights or the receipt of a stock dividend results in a fractional share holding and the
acquisition meets the investment standard required by this subchapter, the trustee may purchase additional
fractional shares to round out the holding to a full share.
(e) A trustee may:
(1)
for deed, earnest money contract, buy/sell agreement, or stock purchase or redemption agreement;
and
(2)
to its corporate affiliate if the sale is made under an agreement described in Subdivision (1) or
complies with the duties imposed by Chapter 117.
(f) A national banking association, a state-chartered corporation, including a state-chartered bank or trust
company, a state or federal savings and loan association that has the right to exercise trust powers and
that is serving as trustee, or such an institution that is serving as custodian with respect to an individual
retirement account, as defined by Section 408, Internal Revenue Code, or an employee benefit plan, as
defined by Section 3(3), Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002(3)),
regardless of whether the custodial account is, or would otherwise be, considered a trust for purposes of
this subtitle, may:
(1)
administrative, custodial, or other account services for the trust or custodial account and charge the
trust or custodial account for the services, provided, however, nothing in this section shall allow an
affiliate or division to engage in the sale or business of insurance if not otherwise permitted to do so;
and
(2)
or division within the financial institution, whether in the form of shared commissions, fees, or
otherwise, provided that any amount charged by the affiliate or division for the services is disclosed
and does not exceed the customary or prevailing amount that is charged by the affiliate or division, or
a comparable entity, for comparable services rendered to a person other than the trust.
(g) In addition to other investments authorized by law for the investment of funds held by a fiduciary or by the
instrument governing the fiduciary relationship, and notwithstanding any other provision of law and subject
to the standard contained in Chapter 117, a bank or trust company acting as a fiduciary, agent, or otherwise,
in the exercise of its investment discretion or at the direction of another person authorized to direct the
investment of funds held by the bank or trust company as fiduciary, may invest and reinvest in the securities
of an open-end or closed-end management investment company or investment trust registered under the
Investment Company Act of 1940 (15 U.S.C. § 80a-1 et seq.) if the portfolio of the investment company or
investment trust consists substantially of investments that are not prohibited by the governing instrument.

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The fact that the bank or trust company or an affiliate of the bank or trust company provides services to the
investment company or investment trust, such as those of an investment advisor, custodian, transfer agent,
registrar, sponsor, distributor, manager, or otherwise, and receives compensation for those services does not
preclude the bank or trust company from investing or reinvesting in the securities if the compensation is
disclosed by prospectus, account statement, or otherwise. An executor or administrator of an estate under a
dependent administration or a guardian of an estate shall not so invest or reinvest unless specifically
authorized by the court in which such estate or guardianship is pending.

§ 113.054. Sales From One Trust to Another

A trustee of one trust may not sell property to another trust of which it is also trustee unless the property is:
(1) a bond, note, bill, or other obligation issued or fully guaranteed as to principal and interest by the United
States; and
(2) sold for its current market price.

§ 113.055. Purchase of Trustee's Securities

(a) Except as provided by Subsection (b) of this section, a corporate trustee may not purchase for the trust
the stock, bonds, obligations, or other securities of the trustee or an affiliate, and a noncorporate trustee
may not purchase for the trust the stock, bonds, obligations, or other securities of a corporation with
which the trustee is connected as director, owner, manager, or any other executive capacity.
(b) A trustee may:
(1)
prescribed by Chapter 117; and
(2) exercise stock rights or purchase fractional shares under § 113.053 of this Act.

UTC §815
Unmarried person similar to Texas statute

When drafting a trust, list all the specific powers, because this helps third parties and the trustee
And for future changed law

Risk of costly litigation if you try and buy some trust property without a certification

2. Duty of Loyalty Casebook: 779-91, Ex. 27 (TPPC §§ 113.051-113.055)

Duty of loyalty rule: Must put interests of beneficiaries above their own interest in all dealings/transactions
related to the trust property. Must give undivided loyalty to the beneficiaries. Trustee must administer trust
solely in the interest of the beneficiaries.
 No self-dealing and no conflict of interest allowed.
o Self-dealing: selling property to self or buying property in trust
 No further inquiry required. Doesn’t matter if in good faith.
o Conflict of interest: transaction w/ someone you have a relationship with
 Need more than just a relationship. See if there was some unfairness or if the
beneficiaries were harmed.
 Rules from the relevant cases on duty of loyalty:
o Conflict of Interest RULE: Trustee must refrain from placing himself in a position where his
personal interest or that of a third person does or may conflict with the interest of the
beneficiaries. An executor who knows that co-executor is committing breaches of trust and
not only fails to exert efforts directed toward prevention, but accedes to them is legally liable
even if he acted on the advice of counsel.

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o RULE about interest in the transaction: Trustee not liable just because has an interest in the
transaction if he acted in good faith & was fair (i.e. trustee can be a beneficiary/friend getting
something)
o RULE against individual capacity: trustee cannot deal in his individual capacity with the trust
property (ex. can’t live on property—cannot be trustee and tenant)
o RULE against self-dealing: as trustee, cannot sell property to yourself, nor to your spouse if
you are the trustee. If trustee sells property to himself or buys property from the trust, that is
self dealing and no further inquiry is need, even if acted in good faith (see below).
o No further inquiry RULE: Once it is shown that a trustee has engaged in self-dealing, the no-
further-inquiry rule is triggered; the trustee will be liable for any profit realized, without
inquiry by the court as to the trustee’s good faith or the transaction’s reasonableness. The
strict no-further-inquiry rule is justified by the fiduciary relationship between the trustee and
the beneficiaries, which is held to a higher standard than arm’s-length transactions.
 Remedies: see cases below about duty of loyalty for remedy formulas and appreciation claims
 Defenses the trustees may assert against a self-dealing claim:
o (1) the self-dealing was approved by the settlor or
o (2) self-dealing was fully disclosed to the beneficiaries, who then gave their consent.

Two Ways Duty of Loyalty can be Violated

1. Actual self dealing: Actually doing something in which they are directly benefiting from the
transaction (T sells property to herself/buys trust property. Selling to a spouse is the same as self-
dealing.) A subset of conflict of interest. (Hartman case)
o Don’t look into fairness of the deal except to calculate damages.
2. Acting with conflict of interest: Sell property to someone or a group to which the T has a loyalty.
(President of a club, and sells to that club.) Must be some harm and unfairness.

Trustee Unanimity: Co-Trustee/Executor situation

EXECUTORS:
 Traditional Rule: Consent of all executors is required to transact the property (has to be unanimous)
 UPC: Applies same rule for executors—must act in unison for the transaction to be valid; if Levine
had just refused to go along with this transaction, it wouldn’t have happened.
 TX: (different for executors)
o Personal Property: Any one Executor can act alone to transact with that property.
o Real Property: Same as UPC rule (have to act together in unison)
TRUSTEES
 Under the traditional rule, all trustees must agree and act in unison to engage in transaction relating to
the property (i.e. all trustees have to agree to a sale transaction)
o UTC applies this same rule to executors!
o Texas: any executor acing alone can deal w/ estate except for real property. In order to
convey real property, executors must join in conveyance
 Co-trustee is liable for the wrongful acts of the other trustees. A trustee that doesn’t join in a co-
trustee’s action isn’t liable for the consequences of those actions unless the trustee failed to exercise
reasonable care to prevent/rectify a breach of trust.
 However, the rule of trustee unanimity is fading in some jurisdictions for majority rule. (Charitable
trusts have long deferred to the majority.)
 Co-trustees who haven’t reached a unanimous decision can just go by a majority.
o Trustee who does not join in an act of a co-trustee is not liable for the other’s action.
 CAVEAT: T has to exercise reasonable care to prevent the co-T to commit a serious
breach of trust. Always liable to prevent a serious breach of trust.

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o When a majority vote to do X, and A doesn’t go along with that, then A isn’t liable unless it
was a serious breach of trust.
o In Rothko, Levine should have gone to the court.
o Tate thinks the same rule applies to the executor (other Es have duty to stop that).

Texas law on trustee & executor unanimity

 Executors can act separately except when they want to convey real estate and then they have to act
jointly.
 For Trustees, however, the rule is different. A majority of them have to agree for the sale to be valid.
NO liability on co-trustee, but one exception – if the T fails to exercise reas care to prevent a serious
breach of trust from occurring or to compel the other T to rectify a serious breach. Same rule for
executors.

Texas Probate Code

§ 240. Joint Executors or Administrators
Should there be more than one executor or administrator of the same estate at the same time, the acts of one
of them as such executor or administrator shall be as valid as if all had acted jointly; and, in case of the
death, resignation or removal of an executor or administrator, if there be a co-executor or co-administrator of
such estate, he shall proceed with the administration as if no such death, resignation or removal had
occurred. Provided, however, that this Section shall not be construed to authorize one of several executors or
administrators to convey real estate, but in such case all the executors or administrators who have qualified
as such and are acting as such shall join in the conveyance, unless the court, after due hearing, authorizes less
than all to act.

Texas Property Code

§ 113.085. Exercise of Powers by Multiple Trustees
(a) Cotrustees may act by majority decision.
(b) If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust.
(c) A cotrustee shall participate in the performance of a trustee's function unless the cotrustee:
(1)
law, or other temporary incapacity; or
(2)
the trust or applicable law, has communicated the delegation to all other cotrustees, and has filed the
delegation in the records of the trust.
(d) If a cotrustee is unavailable to participate in the performance of a trustee's function for a reason described
by Subsection (c)(1) and prompt action is necessary to achieve the purposes of the trust or to avoid injury
to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the
trust.
(e) A trustee may delegate to a cotrustee the performance of a trustee's function unless the settlor specifically
directs that the function be performed jointly. Unless a cotrustee's delegation under this subsection is
irrevocable, the cotrustee making the delegation may revoke the delegation.

Texas Property Code

§ 114.006. Liability of Cotrustees for Acts of Other Cotrustees
(a) A trustee who does not join in an action of a cotrustee is not liable for the cotrustee's action, unless the
trustee does not exercise reasonable care as provided by Subsection (b).
(b) Each trustee shall exercise reasonable care to:
(1) prevent a cotrustee from committing a serious breach of trust; and
(2) compel a cotrustee to redress a serious breach of trust.

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(c) Subject to Subsection (b), a dissenting trustee who joins in an action at the direction of the majority of
the trustees and who has notified any cotrustee of the dissent in writing at or before the time of the action
is not liable for the action.

Hartman v. Hartle
New Jersey Court of Chancery, 1923
95 N.J. Eq. 123, 122 A. 615
 Facts: Named two spouses of her children as executors. Executors sold the property to their
brother-in-law, who is one of the T’s 5 children, but as it turns out, he is buying the property for his
sister – who is the wife of one of the executors and is one of the five children. Sale was 30% less
than market value since the wife was able to sell it for 30% more.
 Held: Clearly a breach of duty of loyalty. If you treat the wife as the real purchaser, then breach of
duty of loyalty was committed. T cannot sell to himself or spouse. Doesn’t matter if acted in
good faith with self-dealing, once there has been self-dealing there is no further inquiry! (see
below) But, this might be relevant to the remedy.
o Two remedies:
 (1) return property to estate and undue the transaction (can’t do that here) OR
 (2) return profit made by executor or his spouse to the estate (damages). Since the
third-party person bought the land in good faith, the court chooses the second option.
Complainant gets 1/5 of the profit – since 5 kids were supposed to split the profits.
o No further inquiry rule: Once there’s been self-dealing, go no further. Even if she had
sold the property at market value, there would still be a breach of duty of loyalty, but
the question of damages becomes sticky. Even if she didn’t sell it for 30% more – this
would have still been a breach. Called the “no further inquiry rule.”
o Appreciation claim: Complainants may have a claim to the appreciation, according to Tate.
They should get what makes them whole – they should get what property is worth the day
of litigation.
 Could also impose punitive damages if the court allows it and if there is no
appreciation (TX has restrictions on when you can get punitive damages, so would
not work here).

In re Gleeson’s Will
124 N.E.2d 624 (Ill. App. 1955)
 Facts: Lady who died leased 160 acres to friend, then in her will she gave him the land, he held over
in time after she died for a year, basically he stayed on the property living while he was a trustee
 Held: Here, he was acting as both the trustee and the tenant—you must choose between these two!
Can’t be both! He breached his duty of loyalty by holding over on the property. Breach of trust.
1. Being a holdover T probably had a lot to do with the court’s decision. Should have either not
been trustee or accepted that and asked court to make exception, or moved off the land. Now
liable for all profit he got from lease.
2. Result: had to give up everything he made
3. Wasn’t trying to cheat the beneficiaries
 Alternative course of action: Guy should have asked court if he could stay there on the land.
1. Decline to continue as tenant
 Pros
 Cons- replacement might be tough to find, bad tenants would bring in no money
2. Decline to serve as trustee
 Pros
 Cons- deny settlor’s intent, trustee might be a bad investor
3. Obtain waiver from beneficiaries

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 Can contest later

4. Obtain court approval to stay as trustee and also renew lease
 Safest option
5. Texas: Judicial approval can be sought by banks, must have statutory authorization to do so.
 Statutes on books for banks to allow self-dealing 112.054- court modification of the
trust
 Must show all beneficiaries consent
 Unanticipated circumstances
 Law review articles against this rule
 Lesson: Prohibition on Self-Dealing is strict. If you’re thinking about it, don’t do it. S could
authorize it, but T would have to prove authorization and then show that it was FAIR.
 No further inquiry rule: self-dealing is strict, and is prohibited

In re Rothko
Court of Appeals of New York, 1977
372 N.E.2d 291
 Facts: dead abstract painter’s paintings sold for a lot, estate had 798
paintings, three close friends were trustees—one didn’t have a
Conflict of Interest, but got in over his head. Executors entered into two contract
which dealt with the entire 798 paintings within 3 weeks of probate. The contract gave two galleries
commissions and paintings to display and sell, but one of the gallery directors was a trustee (Reis).
Stamos was an unsuccessful artist so the contracts with the gallery improved his stature with the
galleries, so there was self-dealing. Levine was found to not have acted with prudence, but he did not
have any self-dealing.
o Fiduciary Relationships: With the gallery and the estate. Breach of the duty of loyalty as to
Reese and Stamos. Levine didn’t have a COI, but he breached the duty of PRUDENCE
(should have investigated the relationship and when he discovered the conflict, should have
gone to the court to stop this relationship).
 Remedy: Why this makes a difference for Levine. Lowers his liability. Other two also
had to pay appreciation damages.
 Rule: A trustee must refrain from placing himself in a position where his personal interest or that of a
third person does or may conflict with the interest of the beneficiaries.
 If no self-dealing but breach of prudence, must look to
o 1. If he knew about it, failed to stop it
o 2. Accedes to it
 Holding: trustees had a conflict of interest and divided loyalty b/w the galleries and to Rothko’s
estate; The agreements with the galleries were not fair or in the best interest of the estate
 Damages: must make the beneficiaries whole – damages market price at the time of the sale minus
the amt already received by the estate + interest. A couple of exceptions to this: (1) if the fiduciary is
charged with a duty not to sell the property, they will get stuck with the damages based on current
market value (2) malfeasance on top of failure to get a good price for failure of the property – such as
a serious conflict of interest
o Breach of duty of loyalty is appreciation damages
 Work done by promoter should be factored in
 Problem: speculative
o Breach of duty of prudence, value at time of sale-sale price
 Alternative courses of action-Levine
o Get out of the job, he won’t be able to do it well
o Retain an expert familiar with the art world to do it

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o Name as trust protector

o Waive the duty of loyalty in the trust
 Why is the AG involved?
o At the time, able to set aside ½ of property for charity
o Smithers’ argument: allow AG as heirs of donor

What if Levine had not approved the transaction. Under UPC executors have to act in unison for
their actions to be valid.
Texas- act of any one executor is valid unless it regards real property.
UTC- can act by majority vote, except the trustee is not liable for acts the trustee does not join in
unless he does not act to remedy the breach.

For trustees UPC, Texas the same, if they can’t agree majority of them can authorize
Trustee who does not join isn’t liable
Unless they
 Fail to exercise reasonable care
 Fails to compel trustee to redress wrong

No further inquiry rule only applies to self-dealing.

Elliot v. Weather
Example of problem from co-trustees who are beneficiaries
 2 daughters fought w/ brother
 Relatives of settlors
 Tc appointed receiver, appellate reversed because of adequate notice
 Always a risk of fighting, if a lot of money involved, get an institutional trustee

3. Duty of Prudence

a. Introduction p. 791-92
Common in trust INVESTMENT.
 Some things are clearly too risky.
 But also can’t let assets sit there and not gain any interest.
 Broad range of transactions that fall between these extremes. Whether or not an investment is
permissible depends on a lot of factors.
 Evolving area of the law. Big changes at end of last century.

b. Old Trust-Investment Law: Prudent Man Rule p. 792-96

Prudent Man Rule v. Prudent Investor Standard
 Prudent man (old) rule: invest how a prudent man would invest, had to invest in certain categories.
o Investments were divided into two categories:
 (1) safe investments were prudent investments (okay to invest in) and
 (2) speculative investments were imprudent investments (presumptively imprudent)
o Could actually lose money if the inflation rate exceeds return on investment
o This was the default rule – people could change this in their trust documents and avoid the
rule by specifying a different standard.

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o Wasn’t always the best to be the safest investment. Correlation between risk and return.
Some could actually lose money if the inflation rate was greater than the return on the
investment.
o Not sufficiently tailored to specific circumstances of each trust. Lasted so long b/c it was a
default rule.
o No duty to diversify.
o Rigid list was made
o Transition: focus on default risk, ignored inflation risk
o Hindsight bias
o Opt-outs difficult

Estate of Collins
California Court of Appeals, Second District, 1977
72 Cal. App.3d 663, 139 Cal. Rptr. 644
 Facts: decided under old prudent man rule, trustees invested estate property by giving a loan to real
estate developers, trustees failed to diversify, failed to investigate (liens, lawsuits, and defaults
against these real estate developers), failure to get adequate security, and failure to consult experts
(appraisal)
 Rule: The trustee is under a duty to the beneficiary to distribute the risk of loss by reasonable
diversification of investments, unless under the circumstances it is prudent not to do so.
 Holding: Extremely imprudent action. Even if language in the will had given them absolute
discretion, they would have still acted imprudently. Also a breach of loyalty in this case. (Case
would have been decided the same under the prudent investor standard)
o (1) provision allowing every kind of investment implicitly means proper investments, not any
investment
o (2) even w/o language that trustees are ltd by fiduciary obligations, crt would still hold the
trustee liable.

c. Modern Trust-Investment Law: Prudent Investor Standard p. 796-821

Prudent Investor Standard / Uniform Prudent Investor (Texas adopted in 2003): trustee must invest and
manage trust assets as a prudent investor would. Examine these decisions in context of whole portfolio, not
individually.
o Uniform Prudent Invest Act sec. 2.
o Acknowledges that sometimes it is necessary to have risk in a portfolio.
o Reforms include: (1) more sensitive to risk/return tradeoff, (2) diversification imperative, and
(3) reversal of the non-delegation rule (tailored to the needs of each trust).
o Ex. inflation. If all investment are too conservative and the inflation rate is high, then all
returns are eaten up by inflation.
 Sometimes a good investment strategy to put all the assets in stock that doesn’t pay dividends –
Trustee can invest in whatever way can maximize the return.
 Trustee can create a wealth maximizing portfolio without worrying about dividend
 Uni-trust – trustee supposed to pay percentage of trust assets to beneficiaries each year.

Uniform Prudent Investor Act (1994)

§ 2. Standard of Care; Portfolio Strategy; Risk and Return Objectives.
(a) A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes,
terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the
trustee shall exercise reasonable care, skill, and caution.

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(b) A trustee's investment and management decisions respecting individual assets must be evaluated not in
isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy
having risk and return objectives reasonably suited to the trust.
(c) Among circumstances that a trustee shall consider in investing and managing trust assets are such of the
following as are relevant to the trust or its beneficiaries:
(1) general economic conditions;
(2) the possible effect of inflation or deflation;
(3) the expected tax consequences of investment decisions or strategies;
(4)
may include financial assets, interests in closely held enterprises, tangible and intangible personal
property, and real property;
(5) the expected total return from income and the appreciation of capital;
(6) other resources of the beneficiaries;
(7) needs for liquidity, regularity of income, and preservation or appreciation of capital; and
(8) an asset's special relationship or special value, if any, to the purposes of the trust or to one or more of
the beneficiaries.
(d) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of
trust assets.
(e) A trustee may invest in any kind of property or type of investment consistent with the standards of this
[Act].
(f) A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's
representation that the trustee has special skills or expertise, has a duty to use those special skills or
expertise.

Social Investing
 Social investing: investing that has more than a financial stake alone – investing to achieve social
goals.
 If you invest in a “socially responsible” mutual fund, you may get less return. Tate suggests that the
best interest of the beneficiaries is often the best option for this type of investing. (intentions of
settlor may conflict with those of the living beneficiaries)

Diversification (reduces portfolio risk)

 Quasi- duty to diversify is the default position, but the settlor can change this in the trust instrument.
However, the court will interpret these provisions as narrowly as possible. This duty is not absolute:
(Don’t want “all eggs in one basket.”)
 Exceptions to diversification requirement: Trustee may depart from usual investment strategies in
order to maintain liquidity for unanticipated expenses OR may chose not to diversify b/c assets/stock
are for family business or family farm – a particular reason for holding onto assets.)
 Risks: Market risk, industry risk, and firm risk (diversification helps the most with firm risk).
 Remember that the actual rate of inflation could exceed the anticipated rate of inflation, so having a
riskier investment could actually reduce the risk of unanticipated inflation.

Corporate trustees/experts—Have a higher standard of care, or behavior

Layman trustees—at a normal standard

Damages for Breach

 Actual losses and interest
 Make Whole Remedy
o To put the beneficiary in at least as good a position that she would have been in but for the
trustee’s breach

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Delegation
 CL: Traditionally trustee is not supposed to delegate to others (he should be playing a nominal role),
Under CL, can’t escape liability by saying that you asked someone else to take care of it.
o However, trustee must delegate some responsibility, such as just entering information into a
computer for the purposes of the duty to account rule (below).
 Ideal situation would be that the trustee can delegate non-discretionary tasks, but NOT non-
discretionary decisions, like investment decisions. (But beneficiaries don’t always pick trustees
based on their investment skills, so delegation of this task also is inevitable.)
 RST & Texas: The non-delegation rule has been reversed by the 3rd RST of Trust via the Prudent
Investor Rule and the Uniform Prudent Investor Act sec. 9, p. 820 – now some delegation allowed!
o Allows delegation of investment decisions, but must exercise care in selecting the agent,
establish the scope and limits of the agent’s powers, and periodically review agent’s actions.
Distinction between:
o Discretionary responsibility—e.g., how to manage the trust
o Non-discretionary functions—e.g., inputting data
 Texas modification requires intent of the settlor

Uniform Prudent Investor Act (1994)

§ 9. Delegation of Investment and Management Functions.
(a) A trustee may delegate investment and management functions that a prudent trustee of comparable skills
could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and
caution in:
(1) selecting an agent;
(2) establishing the scope and terms of the delegation…; and
delegation, consistent with the purposes and terms of the trust; and
(3) periodically reviewing the agent’s actions…
monitor the agent’s
(b) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to
comply with the terms of the delegation.
(c) A trustee who complies with the requirements of subsection (a) is not liable to the beneficiaries or to the
trust for the decisions or actions of the agent…

Texas law on delegation

 Texas embraced the reversal of the non-delegation rule via the Uniform Prudent Investor Act

In re Estate of Janes
 Summary: Trustee should have diversified the Kodak assets/stock. (Hindsight bias perhaps)
Damages were calculated as value of lost capital, therefore not appreciation damages
o Factors to look at : amount of the estate, situation of the beneficiaries, inflation, deflation,
marketability of investment, tax implications.
o elderly widow needs diversification
o May not have been imprudent to sell all the stock – Kodak is and was a leading company
(blue chip).
 Rule of law: Duty to diversify now, unless the assets/stock are part of the family business or family
farm, i.e. a particular reason for holding onto the asset.
 Some questions about whether violation of loyalty if trustee does nothing

Wood v. U.S. Bank, N.A.

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828 N.E.2d 1072 (Ohio App. 2005)

 Facts: revocable trust w/ 8 million, successor trustee, trust says trustee may retain any securities in
the same form as when received, including shares of a corporate trustee
 Retains trustee stock, which then plummets
1. Trustee claims this authorizes not to diversify
2. Beneficiary- has to do w/ duty of loyalty, not duty of prudence
 Court agrees with this approach
3. Capital gains issue- avoid basis problems by holding on to i

Shriners Hospital for Crippled Children v. Gardiner

733 P.2d 1110 (Ariz. 1987)
 Laurabel Gardiner created a trust to pay income to her daughter, Mary Jane, and her two
grandchildren (Charles and Robert), with the remainder to the Shiner Hospital. Mary Jane was
appointed trustee, but she was inexperienced, so she delegated her job of investing to one Charles.
Charles embezzled $317,000, so Shriners brought action against Mary Jane for the money for
improperly delegating duty.
 ISSUES (1) Whether T could delegate her authority? No b/c discretionary duty—could advise, but
not handle entirely. And (2) was there a breach of duty? Yes.

4. Impartiality and the Principal & Income Problem p. 821, 827-30

 Must treat beneficiaries equally unless there is a reason not to (like it’s in the trust)– this comes down to
balance b/w beneficiaries, giving due regard to their respective interests.
o Trustees required not just to imprejudice their own interests over beneficiaries, but also to avoid
favoring one beneficiaries over the others.
o Ts are supposed to be like ideal legislators, and serve interests of all constituents.
 When trustee is confused about his obligations he should: start with instrument, look to state statutes,
when in doubt ask court what to do.
 Where the trust is set up as a life estate
o The life tenant is only entitled to the income
o The remainder men will be entitled to the principle
o Income would include rents, interest, and dividends
o Principal includes such capital gains and growth
 1997 - Uniform Law that gives the trustee the power to rebalance the equities and redistribute gains
between principal and interest based upon fairness

 In reaching a decision as to how to prudently invest the trust funds, T might find that it’s prudent to
invest more of the property into investments that don’t carry an income. Might appreciate faster if
invested in non-income-producing assets.
 May B sue T for not investing in income-producing assets? Yes.
 Lets trustees elect for fixed formula for income
o 4% NFMV of the assets in trust on 1st day of business of current valuation year” for first 3
years of unitrust treatment
o 4th year, value calculated by average of
o NFMV on first day of val. year
o NFMV on first 2 val years
 income in excess is applied to principal
 Principle of Equitable Adjustment—default rule. Can write in the instrument that you don’t want
it to apply.

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 Texas has adopted the UPI.

 If settlor instructs favoritism, then trustee follows that- Duty of Obedience

Can’t adjust if trustee is a beneficiary

Texas has no unitrust conversion
Then you ask the court to permission to modify
Unanticipated circumstances
Or further the purposes of the trust
All beneficiaries consent

Other option… Unitrust

Unitrust- average over 3-5 year period
Problem, market fluctuations may make this out of whack
Texas does not have this type of statute- unitrust conversion statutes
In re Matter of Heller
1. residuary testamentary trust for W’s life,
a. brother Frank trustee, sons Herbert and Alan Heller are trustees after F death
b. W gets 40k or total income
c. remainder to sons and daughters 4
2. 190k in income
a. in 2003, trustees elected for uniform provision to apply, income reduced to 70k
3. court affirms denial of W’s complaint
a. Act allows trustee to “adjust income to the extent the trustee considers advisable to enable the
trustee to make appropriate present and future distributions in accordance with clause (b)(3)(A) if
the trustee determines, after applying the rules in article 11-A, that such an adjustment would be
fair and reasonable to all beneficiaries, so that current beneficiaries may be given such use of the
trust property as is consistent with preservation of its value”
i. lets trustees elect for fixed formula for income
1. 4% NFMV of the assets in trust on 1st day of business of current valuation year”
for first 3 years of unitrust treatment
2. 4th year, value calculated by average of
a. NFMV on first day of val. year
b. NFMV on first 2 val years
3. income in excess is applied to principal
ii. even if they are remainder beneficiaries
1. not impeded by interested trustee
2. there is a rule against self dealing, but because there are other remainder
beneficiaries then it’s ok
a. courts must review unitrust conversions to make sure they are fair
Factors which matter
1. identity and circumstances of beneficiaries

5. Sub-rules Relating to the Trust Property p. 830-32

 Duty to Collect and Protect Trust Property  Trustee must collect the property, upkeep, and maintain
the property
 Duty to Earmark Property  must also earmark the property – keep it separate from her own and
mark the property as belonging to the trust
o Failure to earmark creates liability for any loss that results from the failure to earmark.
o Guards against deceit and personal dealings; prevents T’s personal creditors from reaching the
property; prevents confusion as to who gets what.
 Duty to not commingle property  must keep trust assets separate as possible.
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o Prevents risk that T’s personal creditors will get to assets

o Hard to trace funds when commingled.
 Duty to keep and maintain records (make an accounting whenever the B demands it in most
jurisdictions, not every year). Mandatory with Bs whose interest is vested, not contingent.
 Duty to keep B informed (mandatory with Bs over 25 yrs)
 UTC- Duty to keep them informed 813(a)
 TEXAS: no longer a statutory duty, but there is a CL one
 Duty of obedience- must follow instruction of settlor
 Conflicts with duty of impartiality

In re Lavarelles’ Estate
13 Pa. D & C 703 (Orph. 1930), aff’d, 101 Pa. Super 445 (1931)
 Rule of law: Cannot keep trust assets in your personal safe-deposit box (trustee’s box) because
rubber-band could break or writing could disintegrate, etc.

Hypothetical 1—Page 831 (Earmark Hypo)

A trustee deposits money in Security Bank in the trustee’s own name. Security Bank fails. Is the
trustee liable for the amount of the deposit?
Traditional Approach—The failure to earmark means the trustee has breached his duty.
Modern Approach—The trustee is only liable if the failure to earmark caused the loss
What if the trustee was an officer of the bank and knew it was in trouble?
Other duties are breached, but not the duty to earmark.

6. Duty to Inform & Account p. 836-37

Duty to inform UTC §813
 Duty to keep beneficiaries reasonably informed about administration of the trust and of the material
facts necessary for them to protect their interest,
 Trustee must promptly respond to beneficiaries request about the administration of the estate unless
unreasonable under the circumstances.
 T allowed to charge fees—but if T is also a B, must make sure the transfers are clear/distinct.

Duty to give account if DEMANDED by beneficiaries TPC § 113.151

 The beneficiary must DEMAND an accounting
 Trustee must still keep adequate records.
COMMON LAW DUTY TO KEEP BENEFICIARIES INFORMED—NO STATUTORY REQUIREMENT

Huie v. DeShazo
Communications between trustee and his attorney are protected from disclosure to beneficiaries

Texas Property Code § 113.151. Demand for Accounting

(a) A beneficiary by written demand may request the trustee to deliver to each beneficiary of the trust a
written statement of accounts covering all transactions since the last accounting or since the creation of the
trust, whichever is later. If the trustee fails or refuses to deliver the statement on or before the 90th day
after the date the trustee receives the demand or after a longer period ordered by a court, any beneficiary
of the trust may file suit to compel the trustee to deliver the statement to all beneficiaries of the trust. The
court may require the trustee to deliver a written statement of account to all beneficiaries on finding that
the nature of the beneficiary's interest in the trust or the effect of the administration of the trust on the
beneficiary's interest is sufficient to require an accounting by the trustee. However, the trustee is not
obligated or required to account to the beneficiaries of a trust more frequently than once every 12 months
unless a more frequent accounting is required by the court. If a beneficiary is successful in the suit to

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compel a statement under this section, the court may, in its discretion, award all or part of the costs of
court and all of the suing beneficiary's reasonable and necessary attorney's fees and costs against the
trustee in the trustee's individual capacity or in the trustee's capacity as trustee.
(b) An interested person may file suit to compel the trustee to account to the interested person. The court
may require the trustee to deliver a written statement of account to the interested person on finding that
the nature of the interest in the trust of, the claim against the trust by, or the effect of the administration
of the trust on the interested person is sufficient to require an accounting by the trustee.

Texas Property Code § 113.152. Contents of Accounting

A written statement of accounts shall show:
(1) all trust property that has come to the trustee's knowledge or into the trustee's possession and that has not
been previously listed or inventoried as property of the trust;
(2) a complete account of receipts, disbursements, and other transactions regarding the trust property for the
period covered by the account, including their source and nature, with receipts of principal and income
shown separately;
(3) a listing of all property being administered, with an adequate description of each asset;
(4) the cash balance on hand and the name and location of the depository where the balance is kept; and
(5) all known liabilities owed by the trust.

Uniform Trust Code (2000, as amended 2004) § 813. Duty to Inform and Report.
(a) A trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration
of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable
under the circumstances, a trustee shall promptly respond to a beneficiary’s request for information
related to the administration of the trust.
(b) A trustee:
(1)
(2)
acceptance and of the trustee’s name, address, and telephone number;
(3)
or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable,
whether by the death of the settlor or otherwise, shall notify the qualified beneficiaries of the trust’s
existence, of the identity of the settlor or settlors, of the right to request a copy of the trust instrument,
and of the right to a trustee’s report as provided in subsection (c); and
(4)
trustee’s compensation.
(c) A trustee shall send to the distributees or permissible distributees of trust income or principal, and to
other qualified or nonqualified beneficiaries who request it, at least annually and at the termination of the
trust, a report of the trust property, liabilities, receipts, and disbursements, including the source and
amount of the trustee’s compensation, a listing of the trust assets and, if feasible, their respective market
values. Upon a vacancy in a trusteeship, unless a cotrustee remains in office, a report must be sent to the
qualified beneficiaries by the former trustee. A personal representative, [conservator], or [guardian] may
send the qualified beneficiaries a report on behalf of a deceased or incapacitated trustee.
(d) A beneficiary may waive the right to a trustee’s report or other information otherwise required to be
furnished under this section. A beneficiary, with respect to future reports and other information, may
withdraw a waiver previously given.

Non-judicial settlement agreements Texas Trust Code 114.032

Court approval can be obtained by these
VI. Trust Duration and Perpetuities

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A. The Rule Against Perpetuities Casebook: 671-78, Ex. 30 (TC art. I, § 26; TPPC 112.036)
1. How to avoid RAP: Saving clause.
a. Logical clause
2. What ct will do if you fail to avoid the RAP problem.

Rule defined: interest in real or pers. prop. must vest or destroy within 21 years after the death of an
ascertainable life in being (someone who was alive at the time of the creation of the interest)
 Rule of logical proof. If any possibility causes it to vest more than 21 years after any life in being,
then not good. Supposed to make property more alienable and keep it from being tied up for several
generations. Tate thinks Ts are conservative investors than those who own it outright. Miht not be
good to have a lot of property tied up in a trust.
 Two contexts in real life:
o Client wants to create a trust.
o Client receives a bequest under a trust and you want to see if it can be challenged under the
RAP
 Theory: head of family should be able to assess he capabilities of living members of his family, but
not unborn persons since he could know nothing about them
 RAP prevents property interests from being tied up forever – it prohibits interests that MAY remain
contingent beyond the perpetuities period
 Purposes: (1) keep property marketable and available for productive development in accordance w/
market demands AND (2) limit “dead hand” control over property, which prevents the current owners
from using the prop to respond to present needs
 Crucial question: When will the interest vest?
 RAP & trusts: indirectly limits the duration of the trust, ascertained beneficiaries can terminate the
trust when the RAP period expires
 Validating life: Validating lives do not have to have a connection at all w/ he family involved – the
sole issue is whether these lives permit you to prove hat the gift will fail or vest w/in 21 yrs after their
death. Validating life must be a person alive at the settlor’s death. For a will, validating life has to be
in being at the time of T’s death.

Texas law on RAP

 RAP applies to trusts other than charitable trusts.
 Any interest in a trust, however, may be reformed or construed.

Constitution of the State of Texas

Art. I, § 26. Perpetuities and monopolies; primogeniture or entailments
Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor
shall the law of primogeniture or entailments ever be in force in this State.

Texas Property Code

§ 112.036. Rule Against Perpetuities
The rule against perpetuities applies to trusts other than charitable trusts. Accordingly, an interest is not
good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of
the interest, plus a period of gestation. Any interest in a trust may, however, be reformed or construed to the
extent and as provided by § 5.043.

Hypos pp. 676-677

 Hypo Case 1: O transfers a fund in trust to “pay the income to A for life, then to A’s children for
their lives, then to pay the principal to B.” A has no children. A’s life estate is vested in possession
upon creation. The remainder to A’s children for their lives will vest in possession OR if there are

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not children – fail upon A’s death. B’s remainder is vested in interest upon creation and is therefore
valid. It is valid despite the fact that it may vest in possession at the death of A’s children, which
could be well beyond the relevant lives in being plus 21 years if A has children born after the
transfer. Thus, all interests created by the transfer are valid. This trust may endure for the lives of
A’s children born after the date of the transfer. So the rust might last longer than lives in being at the
date of the transfer plus 21 yrs. Trust is not void – the RAP does not directly limit trust duration. It
is only concerned w/ the time when interests vest. RAP indirectly limits the duration of the trust.
 Hypo Case 2: T bequeaths $10k “to A, when she marries” & $5k to “A’s first child.” A is unmarried
and w/o children The bequest to A will vest during A’s life, if at all, is valid. The bequest to A’s first
child also will vest during A’s life, if at all, is valid. Will vest or not vest during A’s lifetime, so it’s
valid.

 Hypo Case 3: O, a teacher, declares a trust of her first edition of a Dicken’s book, o “the first student
in O’s current W&T class to be sworn in as a judge.” The gift will vest or fail w/in the lives of the
students. The students as a group are the lives in being – this is a closed group, no one else can be
added. The condition precedent will necessarily be met, if it is ever met, before the last surviving
student dies. Valid.

 Hypo Case 4: O transfers a fund in trust “to pay the income to A for life, then to pay the principal to
A’s children who reach 21.” The remainder is valid b/c it will vest, at the latest, 21 yrs after A’s
death, for all A’s children must reach 21 w/in 21 yrs after A dies (plus pd of gestation). Valid b/c
will know if kids reach 21 in 21 yr limit.

 Hypo Case 5: T bequeaths a fund in trust “To A for life, then to the first child of A to be admitted to
the bar.” A is measuring life. Invalid (violates RAP) because it must vest within 21 years and a child
of A here may be admitted to the bar in 22 years. T has a reversion when A dies the property may
revert to T. A could also have child born later. Not valid, so now just have trust to A for life. T has a
reversion. Contingent remainder is stricken.

 Three-part hypo case 6:

a) To A for life, then to B if B goes to the planet Saturn. Valid. B is measuring life/life in
being/validating life. Will necessarily vest or fail during B’s lifetime. Either will go and it will
vest or B will die and not have gone.
b) To A for life, then to B if any person goes to the planet Saturn. Invalid. No measuring life. (can’t
use B as validating life because it might vest after B’s death – no certainty). Someone could go to
Saturn 21 years after A’s death – property would go to B’s heirs b/c Fee Simple. No measuring
life.
c) To A for life, then to B for life if any person goes to the planet Saturn. Valid. B is validating life.
Will know if it will vest or fail at the end of B’s life – so this is valid. This is just a life estate.
 Under cy pres doctrine, could say “to B to life” or put a savings clause in. Or, say “to A
to life, then to B” – no contingency.

 Hypo case 7: Gives fund in trust to A for life, then to such of A’s nephews and nieces to attain
21. Invalid b/c could have more nephews and nieces if brother/sister are still alive. Not all lives are
ascertained at the moment. A could also have more brothers and sisters who could have more
children who could have nephews and nieces. A’s parents are relevant because they determine if A
will have more brothers and sisters. (ignores frozen sperm possibility) If A’s parents are dead, there
could still be brothers and sisters out there of A. Children of half-siblings would be nieces and
nephews.

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B. Perpetuities Reform Casebook: 695-98, Ex. 31 (TPPC § 5.043)

Savings clause
 Savings clause makes sure that the RAP is not violated
 “Trust will automatically terminate 21 years after the death of the last surviving beneficiary of
the trust (after the deaths of ALL beneficiaries)” (limit it to lives in being when the trust was
created and say that it will terminate after the last surviving death of the Bs). To make it stretch out
as long as possible, give one of the Ts power to name additional Bs provided that they were alive
when the trust was created, then it can continue throughout their lives plus 21 years. Give B some
token interest—could name 10 healthy babies born the day that the trust was created, give them some
income under the trust, and then you’ll have a trust that will continue for about 100 years, even under
the traditional rule. If not in there, some RAP problem that could make it void.
 Should give someone a power of appointment to allow addition of beneficiaries – keep adding people
to keep the interest valid for 100 years potentially. (Measuring life must be alive at time of trust, but
can change who by power of appointment) the donee of a power of appt can change he measuring
lives for the trust, provided the donee does no select someone not alive when the rust was created.
 Malpractice not to have this clause in the trust.
 HYPO: No savings clause.
o Ct would strike the part of the trust that violates RAP.
o TX: Ct reforms the trust so as not to violate the rule (Cy pres rule—as near as possible to the
donor’s intent w/o violating the rule)
Attorney Liability
 One case found that an atty is not liable for drafting a trust that violates the RAP – but Tate (and the
book) thinks an atty probably could be liable for malpractice for not including the savings clause to
avoid violating the RAP.

Perpetuities Reform
Cy Pres doctrine (TEXAS Rule)
 Means “as near as possible” in French
 Reforms instrument to prevent it from violating RAP, reforms a trust that violates the RAP so as to
carry out the T’s intent w/in the perpetuities pd
 Texas follows this rule – they allow judicial reformation of an invalid interest at the time the
instrument becomes effective
 Should avoid having to rely on this doctrine by drafting the trust instrument correctly
 Sometimes reform by reducing an age contingency that causes a gift to fail to 21 yrs old instead

Wait and See Doctrine

 We should wait and see what actually happens – we do not invalidate an interest b/c of what might
happen. RAP penalizes people who do not go see a skilled drafter. This doctrine equalizes people.
Arguments against: (1) inconveniences could arise from not knowing whether an interest was valid or
invalid, (2) this is a long step in extending the control of the dead hand, and (3) some critics believed the CL
did no provide any measuring lives for this doctrine

Texas Property Code

§ 5.043. Reformation of Interests Violating Rule Against Perpetuities
(a) Within the limits of the rule against perpetuities, a court shall reform or construe an interest in real or
personal property that violates the rule to effect the ascertainable general intent of the creator of the interest.
A court shall liberally construe and apply this provision to validate an interest to the fullest extent consistent
with the creator's intent.

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(b) The court may reform or construe an interest under Subsection (a) of this section according to the doctrine of
cy pres by giving effect to the general intent and specific directives of the creator within the limits of the rule
against perpetuities.
(c) If an instrument that violates the rule against perpetuities may be reformed or construed under this section, a
court shall enforce the provisions of the instrument that do not violate the rule and shall reform or construe
under this section a provision that violates or might violate the rule.
(d) This section applies to legal and equitable interests, including noncharitable gifts and trusts, conveyed by
an inter vivos instrument or a will that takes effect on or after September 1, 1969, and this section applies
to an appointment made on or after that date regardless of when the power was created.
Youngest beneficiary is six years old.

Texas does not have a 90 year wait and see statute. The title will be uncertain for too long. Cy pres
applies to wills and inter vivos trusts. More trusts are created in a will because out probate system is
good.

Texas still has RAP. Probate committee proposed legislation but the legislature never considered it.

Power of appointment- most trusts will have some kind of power of appointment. Anyone can get a
POA, which is different from the role of trustee because there are no fiduciary responsibilities.

All Beneficiaries consent not inconsistent w/ purpose; UTC 411(b) Gallanis 443-444; TX (a)(5)
Supp. 155-156

Unanticipated circumstances; furthers purpose, UTC 412(a) Gallanis 447; TX Supp. 155.

TX. Prop. Section 111.0035 127-128 Default or mandatory rules. UTC 105; Gallanis 417.

General power of attorney can be exercised in favor of the donee, the donee's estate, or donee's
creditors. Also good if you want to take advantage of annual exclusions.

The same reasons you might want to create a discretionary trust are the same for why you might want
to modify a trust.

In re Estate of Brown: Woolson and Rosemary Brown, the lifetime beneficiaries, have a mandatory
interest in the trust income and a discretionary interest in the principal. All the beneficiaries agree
that there is no remaining purpose for the trust. Trustee does not want the trust to end because they
are getting trustee's fees. Trustee is arguing this is a support trust. If this is a support trust, the
material purpose has not been fulfilled. This is not a support trust because they are guaranteed to get
the income. Settlor who wants a spendthrift protection will look fr a state that says spendthrift clause
is a material purpose of the trust.

Pg. 127 of supplement are the mandatory laws.

Texas provision does not give the court the power to terminate the trust. The trustee is given the
power.

It may actually be easier to remove a trustee in Texas than under the UTC.

UTC 706 Default law you can opt out of. Broader range for how the trustee can be removed: serves
the beneficiaries as defined in the trust and does not go against a material purpose.

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Texas-112.054 applies to trustee removal. More pro-beneficiary than UTC. Must have charitable
intent or the rule against perp applies.

UTC 413 Wastefulness.

Gift over to another charity does not preclude cy pres on the original gift.

UTC has granted standing to the settlor and others to enforce the trust.

Hartman v. Hartle- L buys land for $3900, but he is really buying the land for one of his sisters. The
sister's husband is one of the executors. The sister then sells the land for $5500, making $1600 profit.
Another sibling complains that she deserves 1/5 of the profits under the trust. The court agrees.

In re Gleeson's Will- Colbrook could have continued as trustee but not renew the lease OR decline
the trustee position but hold over. He could have sought the approval of the beneficiaries or seek
court approval.
UTC Incapacitated people and children can waive self-dealing rule.

Langbein is correct on this issue.

Texas Commerce Bank v. Grizzle- The banks are focusing on what is better for their banks than the
trust. The bank swap could have been done at a different time. Court of appeals says the exculpatory
clause does not protect trustee from losses from self-dealing. This particular clause made an
exception. These actions did not constitute gross negligence, so the trustee was not liable. The court
created the trust. There is no settlor. The interest of the beneficiaries are served when a person is
willing to take on the job of a trustee. Trustee wants their duties in the trust to be upheld instead of
changed. If it weren't for the exculpatory clause, there could be a breach of prudence argument.

In re Rothko- Stamos was a fellow artist. Levine should not have gone along with these contracts
because the fees were too low and the commission too high. Levine breached his duty of prudence.
Levine should have hired an expert in art to assess the value of the paintings. It was not wise to go
with the first gallery they found. Levine talked to an attorney. Executors could have tried to get
court approval before this transaction. The court probably would not have approved. Kate would
have to argue like the wife of the donor in the Smithers case, Kate is not getting anything under the
will, she wants to make sure her father's wished are carried out. Remedy : Levine had good faith
and no conflict of interest. \

What if Levine had not approved the transaction. Under UPC executors have to act in unison for
their actions to be valid.
Texas- act of any one executor is valid unless it regards real property.
UTC- can act by majority vote, except the trustee is not liable for acts the trustee does not join in
unless he does not act to remedy the breach.

No further inquiry rule only applies to self-dealing.

Prudent man rule- hindsight bias and inflation problem. Lawyers could opt out of the prudent man
rule, so there was not a lot of pressure to change it. Rule was too conservative as to what was
speculative.

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Janes- Marital Deduction trust was 50% of the estate, wife gets that life income and the testamentary
POA. Charitable remainder trust was 25%, wife gets the lifetime income. The remainder of this trust
goes into the charitable trust along with 25% of his original assets. Rochester bank is the trustee for
all of the trusts. The husband's died in 1973. The accounting did not happen until 1980. The value
of Kodak stock fell in this time. Trial court finds the bank acted imprudently. Intermediate court
agrees but reduces the amount of damages. Final court said the damages is the present value of the
stock as it should have been sold in 1973. Would it have been prudent to sell all of the Kodak stock?
The bank did not have a conflict of interest like Reis and Stamos in Rothko.

Uniform Prudent Investor Act- Texas has it. Section 1.

Texas allows the settlor to make stupid decisions because we look to the settlor's intent.
UTC- when the trust is revocable the duty of the trustee is only to the settlor.

Principal
Proceeds from sale
Capital Gains
Life and Casualty insurance proceeds
Eminent domain
Third Party reimbursements

Income
Rent
Interest on Loans, bonds, bank accounts
Cash divivdends
Net business and farming profits

Power of equitable adjustment- trustee can realocate income or principal. Default rule that the settlor
can mess with. This doctrine brings the two UPIA's together. This doctrine is complicated and does
not protect from litigation is you are not fair.

Unitrust- hard to argue with as long as the math is done correctly.

Charitable Trusts v. Private Trusts

Private Trust Charitable Trust
Purpose For the benefit of an For the benefit of a
ascertainable beneficiary charitable purpose
Modification Claflin doctrine Cy pres doctrine
Deviation Deviation
Enforcement Beneficiaries State Attorney General
Except pet trusts
Other Exempt from Rule Against
Perpetuities and certain
taxes

Charitable purposes
1. Relief of poverty
2. The advancement of knowledge or education
3. The advancement of religion
4. The promotion of health

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5. Governmental or municipal purposes; and

6. Other purposes that are beneficial to the community

Restatement (Third) of Trusts §28 (2003)

Shenandoah Valley v. National Bank v. Taylor

63 S.E.2d 786 (Va. 1951)
1. Divides money equally among each child at a school or interest of education
2. Set up by Charles Henry, violates rule against perpetuities
3. Will contestant
4. Is this charitable?
a. Given straight to kids
5. Holding: not a charitable trust
a. Is it advancing education?
i. Trustee doesn’t have power to make sure it’s for education
b. Is it beneficial to the community?
i. They need to be poor, in needy circumstances
6. Court could have applied the cy pres doctrine
a. Probably didn’t because of sympathetic will contestant

Cy pres Doctrine
Can reform a trust to make it in accordance to a charitable trust, or reform it to make it a valid non-
charitable trust

Traditionally- if you find a charitable purpose, then you can amend how the settlor intended
2 goals
1. Effect of settlor’s intent
2. Further society by recognizing charitable purposes

Expansion
1. Wasteful basis for cy pres
a. Cy pres allowed if stated charitable purpose becomes “unlawful, impracticable,
impossible, to achieve, or wasteful”
2. Presumption of general charitable intent
a. Party opposing cy pres must show donor lacked general charitable intent

In re Neher
18 N.E.2d 625 (N.Y. 1939)
1. “my home in Red Hook Village…to the incorporated Village of Red Hook, as a memorial to
the memory of my beloved husband, Herbert Neher, with the direction to said village that said
property be used as a hospital to be known as “Herbert Neher Memorial Hospital”
2. They didn’t need a hospital
3. Does a testator have a general or specific charitable intent?
a. General charitable intent for cy pres
4. If the testator had a general charitable intent, what alternative charitable purposes would be
consistent with that intent?
a. Just a desire to memorialize husband, not really any importance on hospital
i. Husband not a doctor
ii. Not interested in furthering medicine

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b. If specific desire of charitable purpose, then you don’t modify it

The Buck Trust

1. Trust for needy, trust exploded in value
2. Trustee tries to transfer it to poorer counties, court refuses, modification because of old
doctrine

Under UTC, gift to 2nd charity does not preclude application of cy pres to primary gift
Example: make a trust for benefit of Roman law, at SMU, alternative to other schools
Specific intent seems to be for roman law

Supervision of Charitable Trusts

No ascertainable person that has standing to enforce charitable trusts
That power is given to the state attorney general
Having a politician isn’t ideal

Herzog p. 776
1. Gifts provide scholarships to nursing students
2. University closed its nursing school
3. Herzog wants to xfer to institution with nursing program
4. Holding: Foundation didn’t have standing, because they didn’t reserve the right
a. Standing
i. State atty general
ii. Co-trustee
iii. Someone with stake in charitable trust

Smithers v. St. Luke’s-Roosevelt Hospital Center

723 N.Y.S.2d 426 (App. Div. 2001)
1. He announces 10m gift to alcoholism treatment center
a. After first 1m, purchase a mansion for Smithers center
b. He cancels the gift, because they haven’t lived up to it
c. Later he agrees to gift if they promise in writing to adhere to gift
i. Later move to hospital- defeating the purpose
2. Then
a. Atty General isn’t focused on the good of NY
b. Negotiates agreement with hospital
c. Mrs. Smithers sues
3. Holding: spouse has standing because she’s the special administratrix- GOES AGINST
TRAD. RULE
a. Traditional rule- donor doesn’t have standing
b. Good policy- AG isn’t a good enforcer
c. No case-by case inquiry, one step beyond traditional rule, because personal
representative, particularly a special administrator

UTC-
1. settlor has standing to enforce charitable trust
2. “among others” language is expansive, doesn’t give any limiting factors
a. Some adopting states have nailed this down further

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Texas
1. No statute
2. Caselaw relating to settlor standing
a. Interest must differ from general person- Nicole v. Smith
b. Loki- removal of trustee
c. Example of someone w/ special interest: resident of nursing home with gift to that
nursing home

Charitable trust principles apply to charitable gifts

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