TRUSTS

PRIVATE EXPRESS TRUSTS

1. Private Express Trust: (“PET”) A fiduciary relationship w/ respect to property whereby one person, the trustee, holds
legal title for benefit of another, beneficiary, and which arises out of a manifestation of intent to create it for a legal
purpose

(1) Property of the Trust: Rule: any presently existing interest in property that can be transferred can be the corpus of a trust
a. Illusory Interests: CANNOT be subject matter of a trust (future profits, debts, expectancy)

(2) Beneficiary: any ascertainable person or group of people cab be the beneficiary of a private express trust (includes corps)
a. Unincorporated Associations OK under Modern law (not CL)
b. Class gifs valid (can’t be too big – may be charitable trust though)
c. Child conceived when trust created = ascertainable person
d. Watch for RAP problems

(3) Trustee: A trust must have a trustee, but trust will not fail for lack of one (crt can appoint one)

(4) Manifestation of Trust Intent: There must be a present manifestation of trust intent made by settlor (no magic words)
b. Precatory words (wish, hope, desire) alone cannot create a trust, but precatory words plus parol evidence can.
c. If conclude words are merely precatory and PE won’t show a trust, transferee owns property in fee simple
d. Trusts of personal property do not need a writing (SoF only applies to real property)

(5) Creation:
a. (a) Trust created to take effect at Settlor’s Death: must comply w/ the statute of wills (settlor = testator)
b. (b) Trust created during Settlor’s Lifetime: Two ways to do this:
i. (i) Transfer in Trust: third person = trustee. For real prop, settlor must execute and deliver deed
transferring title to trustee (= writing requirement to satisfy SoF). For trust of personal prop, must be
delivery to trustee of trust prop at time settlor manifests intent to create trust (delivery can be actual,
symbolic or constructive) (no delivery  no trust and a promise to deliver in future =/= delivery)
ii. (ii) Declaration in Trust: Settlor herself is trustee. For real prop, must have a writing indicating settlor is
also trustee (SoF). For personal prop, no delivery required.

(6) Legal Purpose: A trust may be established for any legal purpose
e. (a) Illegal at Creation: excise bad from good. If can, trust stands. If not, two options:
i. (i) Invalidate Trust at Inception: Settler remains owner of property
ii. (ii) Allow Trustee to keep property for himself (to punish settlor when doesn’t have clean hands)
f. (b) Illegal after Creation: Resulting Trust is decreed  transfer property back to settler if alive, and if not, to
settlor’s estate (residuary devisees) if any, and if not, to intestacy. (ex. change in law)

CHARITABLE TRUSTS

1. Charitable Trust = any trust which confers a substantial benefit upon society

2. Creation = same as Private Express Trusts: (1) manifestation of trust intent; which can be done (2) @ testator’s death by will
or during settlor’s lifetime by declaration of trust or transfer in trust; (3) of a presently existing interest in property that can be
transferred; (5) for a legal charitable purpose.
3. Beneficiary: Society at-large is the beneficiary of a charitable trust
a. Small group of people beneficiary = split of authority
i. View #1: private express trust because only few getting benefit
ii. View #2: charitable trust b/c when even few people helped society as a whole benefits
4. Rule Against Perpetuities: does not apply to charitable trusts
5. Cy Pres
a. General Rule: If a settlor manifests a general charitable intent, but the mechanism for effectuating that intent is not
possible or practicable, the court can modify the mechanism cy pres, as nearly as possible to effectuate the settlor’s
general charitable intent.
b. General vs. Specific Intent: Use both intrinsic (trust instrument) and extrinsic evidence to determine settlor’s intent
POUR OVER WILLS (SEE WILLS)

1. Settlor creates an inter vivos trust with provision in her will devising part or all of estate to trustee of trust
2. Pour over provisions validated in 3 ways: (1) incorporation by reference; (2) facts of independent significance; (3) UTATA

MISCHELLANEOUS TRUSTS
HONORARY TRUSTS

1. Honorary Trust: trust which has no ascertainable beneficiaries and confers no substantial benefit on society (not a true trust)
a. Trustee NOT required to carry out settlor’s goal, but has power to carry it out (on honor)
b. Examples: trust for care of grave site, specific pet (many animals could = charitable trust), advance odd politics
2. Issues w/ Honorary Trusts
a. Trustee may refuse to carry out settlor’s wishes, then the trust fails  resulting trust in favor of settlor
b. Rule Against Perpetuities problems come up (no measuring life and no charity exception): Result: (1) some states
strike trust at inception leading to a resulting trust: (2) Other states allow honorary trust to endure for 21 yrs

TOTTEN TRUST

1. Totten Trust: (tentative bank account trust) named beneficiary takes whatever is left in the account at death of owner of the
account (always involves a bank account) (not a true trust, just a will substitute)
a. Depositor/trustee owes NO fiduciary duties to beneficiary and has full control to do what want w/ it during lifetime
b. CAN be elevated to true trust if depositor/trustee exhibits a manifestation of trust intent.

RESTRAINTS ON ALIENATION
1. Voluntary Alienation: The beneficiary of a private express trust can voluntarily alienate his interest in property
2. Involuntary Alienation: Creditors can involuntarily alienate beneficiary’s interest in prop of private express trust (attached)

SPENDTHRIFT TRUST***

1. Spendthrift Trust (provision in PET): Beneficiary cannot transfer his right to future payments of income or principal and
creditors cannot attach the beneficiary’s right to future payments of income or principal (terms of trust expressly provide this)
3 Main Issues:
2. (1) Voluntary Alienation: Generally NO voluntary alienation.
a. Exception: Court will recognize assignment on ground that beneficiary merely has given the trustee direction or
order to pay the beneficiary’s agent or rep. (the assignee). Beneficiary retains right to revoke
3. (2) Involuntary Alienation: Generally NO involuntary alienation
a. CL Exceptions: Preferred Creditors CAN attach beneficiaries right to future payments (special creditors):
i. Preferred Creditors = (1) Government Creditors (IRS); (2) those providing necessities to B; (3) Child
seeking child support; (4) spouse seeking spousal support; (5) Ex-spouse seeking alimony; (6) tort
judgment creditor.
b. Other Rule: in addition to CL exceptions, some allow any creditor to attach “surplus” as measured by beneficiaries
“station in life” (subjective standard based on B’s standard of living)
4. (3) Settlor Creating Spendthrift Trust for Himself
a. (a) Voluntary Alienation: SPLIT Authority
i. (1) Majority: ignore provision restricting alienation and allow settlor to alienate interest
ii. (2) Minority: allow settlor to transfer right to future payments
b. (b) Involuntary Alienation
i. (1) Majority of jurisdictions recognize trust itself but NOT the spendthrift provisions (some do allow
though)

SUPPORT TRUSTS

1. Support Trust (provision in PET): Trustee is required to use only so much of the income or principal as is necessary for the
beneficiary’s health, support, maintenance, or education. (terms of trust expressly provide this)
3 Main Issues
2. (1) NO Voluntary Alienation: would violate settler intent to allow, so B cannot transfer right to future payments
3. (2) Involuntary Alienation: same rules as spendthrift trusts
4. (3) Settlor Creating Support Trust for Himself: same rules as Spendthrift Trusts
DISCRETIONARY TRUSTS***

1. Discretionary Trust (provision in PET): the trustee is given sole and absolute discretion in determining how much to pay the
beneficiary, if anything, and when to pay the beneficiary, if ever (terms of trust expressly provide this)
3 Main Issues
2. (1) Voluntary Alienation: 2 POINTS:
a. (1) On one hand, B cannot voluntarily transfer right to future payments because B may not ever get anything so has
nothing to transfer
b. (2) On other hand, if there is an assignment, then assignee steps into shoes of the B. Because B could not force
payment, neither can assignee. But, if trustee has notice of assignment and does decide to pay, must pay assignee or
will be personally liable.
3. (2) Involuntary Alienation. 2 POINTS:
a. (1) On one hand, creditors cannot attach B’s right to future payments b/c nothing to attach
b. (2) On other hand, if trustee has notice of debt and creditor’s judgment against B, and trustee does decide to pay,
must pay creditors or be held personally liable.
4. (3) Settlor Creating Trust for Himself: same rules as spendthrift trusts

**NOTE: If trust implicates more than one kind of trust restraint, discuss both in alternative

RESULTING TRUST
1. Resulting Trust: a resulting trust is an implied in fact trust and is based upon the presumed intent of the parties. If a resulting
trust is decreed by the court, the resulting trustee will transfer the property to the settlor if the settlor is alive, and if not, to the
settlor’s estate (residuary devisees, if an, and if none, to the intestate takers (heirs)).
7 Situations
2. (1) When a private express trust ends by its own terms, and there is no provision for what happens to corpus thereafter.
3. (2) When a private express trust fails because there is no beneficiary
4. (3) When a charitable trust ends because of impossibility or impracticability and Cy Pres cannot be used)
5. (4) When a private express trust fails because after creation, the trust becomes illegal
6. (5) When there is excess corpus in a private express trust (more than necessary to accomplish trust purpose)
7. (6) When there is a “purchase money resulting trust” (A pays consideration to B to have title of property transferred to C)
a. If A and C not closely related: rebuttable presump C is holding as purchase money resulting trustee for A’s benefit
b. If A and C closely related: rebuttable presumption that A simply made gift to C
8. (7) Semi-secret trusts: arises when will makes a gift to a person to hold as trustee but does not name the beneficiary
a. “I devise $100k to Abel as trustee” – admitting evidence would violate Statute of Wills  resulting trust

CONSTRUCTIVE TRUSTS
1. Constructive Trust: Not a trust. It is a remedy to prevent unjust enrichment. When a crt decrees a constructive trust, the
wrongdoer becomes a constructive trustee is required to transfer the property to the intended beneficiary as determined by the
court. Arises in 4 situations:
2. (1) Where a trustee of a PET or a charitable trust makes a profit at the expense of the B because of self-dealing.
a. RESULT: Profits must be turned over to intended Bs.
3. (2) W/ respect to law of wills, when there is a fraud in the inducement or undue influence.
a. RESULT: will denied probate and heir is made constructive trustee to transfer prop to intended B
4. (3) Secret Trusts in the law of wills.
a. Secret Trust: will that on its face makes a gift outright to A, but the gift is given on the basis of an oral promise by A
to use the property for the benefit of B. = will is totally silent as to the existence of a trust
i. Compare: Semi Secret trusts where the will provides that the legatee is to hold the property on trusts, but
does not specify the terms of the trust or the beneficiary. w/ semi-secret trusts, courts will impose a
resulting trust NOT a constructive trust. NOTE: If have either, apply rules of both.
b. RESULT: Parol evidence admissible to show B was beneficiary. A becomes constructive trustee and transfers to B.
5. (4) Oral Real Estate Trusts
a. Example: S says to A “If I transfer Blackacre to you, will you hold it for the benefit of B?” A agrees and Blackacre
delivered to A. A seems to owe in fee simple and if B claims property, A can assert SoF defense. A will prevented
from asserting SoF and will be decreed constructive trustee in 3 situations:
i. (a) There’s a fiduciary relationship between S and A.
ii. (b) Fraud in the inducement by A
iii. (c) detrimental reliance by B (B takes possession AND makes improvements)
 TRUSTEE POWERS AND DUTIES
TRUSTEE POWERS

a. All enumerated powers and All implied powers: helpful and appropriate to carry out trust purpose: power to (1) sell
trust property, (2) incur expense, (3) lease, (4) borrow.

TRUSTEE DUTIES (if comes up will see at least 3 or 4 implicated)

2. Duty of Loyalty
a. Trustee must act in best interest of the B at all times. Must administer the trust for the benefit for Bs
b. Trustee not allowed to engage in self-dealing
c. Consequence of violating duty: (1) if loss, trustee is surcharged, (2) if trustee makes personal profit, then made a
constructive trustee and turns over profits.
3. Duty to Invest (3 Rules)
a. (1) State Lists: some states have lists which trustee must follow in absence of directions in trust.
i. Good investments = (a) Federal gov’t bonds, (b) Federally insured certificates of deposit, (c) first deeds of
trust in real estate, and (d) sometimes stocks in publicly traded corporations
b. (2) Common Law Prudent Person Test: duty requires trustee to act as a reasonably prudent person investing his
own property, trying to maximize income while preserving corpus. Each individual investment scrutinized.
i. Good investments = (a) federal gov’t bonds, (b) federally insured certificates of deposit, (c) first deeds of
trust in real estate, (d) blue chip stocks, and (e) sometimes mutual funds.
c. (3) Uniform Prudent Investor Act: adopted by most states. Trustee must invest as a “prudent investor” and
performance measured in context of entire portfolio (no vestment is per se invalid)
d. ADDITIONAL NOTES:
i. (a) Under any standard, trustee has duty to diversify so that if there is a loss, won’t destroy entire portfolio
ii. (b) Under first 2 rules, no speculating allowed
iii. (c) If trustee breaches duty to invest, trustee must make good loss and if profit, B’s can affirm transaction
4. Duty to Earmark
a. Duty to earmark requires the trustee to label trust property as trust property
b. Consequences of breaching this duty:
i. (a) Common Law: trustee personally liable (no causal relationship required)
ii. (b) Modern Approach: trustee personally liable ONLY IF loss was caused by the failure to earmark
5. Duty to Segregate
a. Trustee cannot commingle personal funds with trust funds (or funds of different trusts)
b. Breach – trustee can be removed and held liable for any loss
6. Duty not to Delegate
a. Trustee can rely on professional advisors in reaching decision, but trustee cannot delegate decision-making authority
b. Common Law: (a) trustee can’t delegate duty to invest to prof money manager; (b) trustees must act unanimously
c. Modern Trend: (a) trustee CAN delegate duty to invest; (b) trustees can act by majority decision
7. Duty to Account
a. Trustee, on regular basis, give beneficiaries statement of income and expenses of trust (remedy action for accounting
8. Duty of Due Care**
a. Trustees must act as a reasonably prudent person with his own affairs (can always talk about this one if duties issue)

LIABILITY OF TRUSTEE TO 3RD PERSONS

1. Liability in CONTRACT
a. Common Law Rule: trustee sued in personal capacity (personal assets at stake) but can get indemnification from
trust assets if trustee acted w/in his power and not personally at fault.
b. Modern Trend: If the other party to K, the promise, knows that the trustee is entering into the K in his representative
capacity, then the trustee must be sued in his representative capacity (personal assets NOT at stake)
2. Liability in TORT
a. Common Law Rule: trustee sued in personal capacity but can get indemnification from trust assets if not personally
at fault
b. Modern Trend: trustee sued in individual capacity and is personally liable ONLY IF trustee personally at fault
 MODIFICATION AND TERMINATION OF TRUSTS
1. Modification by Settlor
a. RULE: settlor can modify a trust if settlor expressly reserves power to modify OR reserves power to revoke.
2. Modification by Court
a. (1) Cy Pres: There can be modification by the Court regarding charitable trusts and the Cy Pres power: changing
mechanism to further settlor’s general charitable intent.
b. (2) Doctrine of Changed Circumstances: modification of charitable trusts/PETs regarding court’s deviation power
i. When crt exercises deviation power, crt changes administrative or management provision of trust.
ii. Court NOT changing beneficiaries.
iii. RULE: 2 Elements must be established for court to use deviation power:
1. (1) Unforeseen circumstances on the part of the settlor, AND
2. (2) Necessity (deviation needed to preserve the trust)
3. Termination of Revocable Trusts
a. Majority Rule: To retain power to revoke, the settler MUST expressly reserve the power in the trust instrument
b. Minority Rule: Settlor has the power to revoke, UNLESS the trust is expressly made irrevocable
4. Termination of Irrevocable Trusts
a. Three ways Irrevocable Trusts can terminate Prematurely:
i. (1) Settlor and ALL the Beneficiaries agree to terminate (must account for contingent remaindermen who
and appoint guardian ad litem to represent those incapacitated)
ii. (2) All the Beneficiaries agree to terminate, and all material purposes have been accomplished.
iii. (3) By operation of law: Passive trusts and the Statute of Uses
1. Statute of Uses comes into play when have a private express trust w/ corpus of real property and
trust is passive (trustee has no active duties and just holding bare title)  beneficiaries get title
and trust terminates (NOTE: only applies to real property)

INCOME & PRINCIPAL (UNIFORM PRINCIPAL AND INCOME ACT)

1. Income and Expenses Allocated to the Life Tenant
a. Income = (1) cash dividends, (2) interest income, (3) net business income
b. Pays for = (1) Interest in loan indebtedness, (2) taxes, (3) minor repairs
2. Income and Expenses Allocated to the Remainderman
a. Income = (1) stock dividends, (2) stock splits, (3) net proceeds from the sale of trust assets
b. Pays for = (1) principal part of loan indebtedness, (2) major repairs or improvements
3. Adjustment Power of Trustee
a. Trustee can disregard above rules if different allocation necessary to administer trust fairly.

WILLS
CAPACITY

1. Testator must have capacity at the time of execution =At the time of execution, testator must satisfy 4 elements:
a. (1) Testator must be at least 18 years of age
b. (2) Testator must be able to understand the extent of her property
c. (3) Testator must know the natural objects of her bounty (spouse, issue, parents)
d. (4) Testator must know the nature of her act (know that she is executing a will but not the legal technicalities)
2. Lack of Capacity renders the will invalid and property passes by intestate succession
a. Exception: if testator has a valid prior will that was revoked by the second (invalid) will, then the first instrument
will be probated.
b. Mere appointment of conservator or diagnosis of mental disorder is not alone sufficient to show incapacity

INSANE DELUSION

1. Will (or parts of it) may be invalid if, at the time of execution, testator suffered from an insane delusion (4 elements):
a. (1) Testator has a false belief;
b. (2) that false belief was a product of a sick mind;
c. (3) there is no factual basis to support the belief, not even a scintilla of evidence
 d. (4) Causation – the delusion must have affected the testator’s will
2. Consequence of finding Insane Delusion  Only that part of the will impacted by the delusion is invalid
a. The invalid part will go to residuary devisee, or if none, by intestate succession

FRAUD Constructive Trust Remedy: make devisees or heirs a

1. Elements: constructive trustee whose one duty is to transfer the
a. (1) There must be a misrepresentation; property to the intended beneficiary, as determined by
b. (2) of material fact; the court (use this if wrongdoer would still profit from
c. (3) Known to be false by the wrongdoer; intestate succession)
d. (4) for the purpose of inducing action or inaction; and
e. (5) Causation – the false representation in fact induces the action or inaction desired
2. 3 Types of Fraud:
a. (1) Fraud in the Execution: someone forges the testator’s signature to the will OR testator given something
purportedly non-testamentary in nature, but in fact it is, and testator signs it. (doesn’t intend doc to be will)
i. Entire will invalid and property passes by intestate succession unless prior will validly executed
b. (2) Fraud in the Inducement: wrongdoer’s representations affect contents of testator’s will
i. Only that portion of the will affected by the fraud is invalid.
ii. Court can: (1) give property to residuary devisees; (2) heirs at law by intestate succession; or (3)
constructive trust.
c. (3) Fraud in Preventing Testator from Revoking: variation of fraud in the inducement
i. Court will not probate the will and property goes to heir and decree heir as constructive trustee

UNDUE INFLUENCE

1. Undue Influence: undue influencer is substituting their intent for that of testator (substituted intend). “leave me you’re your
money or I’ll kill you.” If undue influence, the will is invalid. Established in 3 ways:
a. (1) Prima Facie Case
i. (a) Susceptibility: Testator has weakness (physical/mental) such that he’s able to have free will subjugated
ii. (b) Opportunity: The wrongdoer had access to the testator (if friend/associate, always have access)
iii. (c) Motive: wrongdoer has a ‘disposition’ to exert influence (typically financial, revenge)
iv. (d) Causation: An unnatural result which appears to be the result of undue influence
b. (2) Case Law Presumption – If establish presumption, burden of proof on causation shifted to alleged influencer
i. (1) A confidential relationship exists between testator and wrongdoer (attorney-client, etc.). A confidential
relationship arises whenever one person reposes trust in another.
ii. (2) Active in procurement or execution of the will. The influencer was involved in prep or execution of will
(involved in selection of attorney, attended meetings, prepared will)
iii. (3) Undue Benefit: person taking would not ordinarily be expected to take (or greater than expected)
iv. NOTES:
1. Prima Facie Case, Case Law Presumption: Only that part of the will affected by undue influence is
invalid. – To residuary devisee, heirs at law by intestate succession, or constructive trusts remedy
c. (3) Statutory Presumption – presumption that instrument making transfer to following people = undue influence
i. (1) person who drafted or transcribed the instrument; OR
ii. (2) A care custodian of a transferor who is a dependent adult; OR
iii. (3) A person who is a spouse, domestic partner, blood relative, cohabitant, or employee of 1 or 2
iv. Doesn’t apply to: (a) transfer to person who’s a spouse, DP, cohabitant, relative of transferor (b) instrument
transcribed by spouse, DP, cohabitant, relative of transferor; OR (c) transfer < $5k if estate >$100k.
v. Consequences: Transferee is deemed to predecease the transferor w/o issue and gift lapses. Gift passes to
residuary estate, if any, or to heirs at law by intestate succession

MISTAKE
MISTAKE IN CONTENT

1. Mistake in Content: testator’s will names the wrong beneficiary or makes wrong gift due to accidental omission/addition
2. RULE: a will that is unambiguous on its face may be reformed to conform to the testator’s intent if clear and convincing
evidence establishes BOTH:
a. (1) the will contains a mistake in testator’s expression of intent at the time the will was drafted; AND
b. (2) the testator’s actual specific intent at the time will was drafted (extrinsic evidence admissible)
MISTAKE IN EXECUTION

1. Mistake in Execution: Testator signs wrong document

a. (1) mistakenly signs his will thinking it’s something else  will not probated
b. (2) reciprocal wills or mutual wills (husband signs wife’s and vise versa)  court will reform the will

MISTAKE IN DESCRIPTION

1. Mistake in Description: no one, or no thing, fits the description or two or more persons (or things) fit the description.
2. Consequences:
a. (1) Latent Ambiguity: on the face of the will there is no problem. Introduce parol evidence to establish ambiguity
and testator’s intent
b. (2) Patent Ambiguity: ambiguity is apparent on the face of the will. (older cases said no remedy). Modern trend,
introduce parol evidence to determine testator’s intent

DEPENDENT RELATIVE REVOCATION

1. Basis for Dependent Relative Revocation (DRR): allows court to ignore an otherwise valid revocation caused by mistake
2. Background:
a. (1) Will can be revoked by physical act (burning, tearing, etc.)
b. (2) Will can be revoked by a subsequently executed instrument
c. (3) Issue arises where testator executes Will #1, then Will #2 (revoking Will #1). But Will #2 is invalid. Rather than
holding testator intestate, can probate Will #1 under DRR (must be substantially the same)
3. RULE:
a. (1) Testator revokes her will, or portion thereof,
b. (2) in the mistaken belief that a subsequent identical will or codicil effectuates her intent,
c. (3) then, by operation of law,
d. (4) the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating
testator’s intent.
e. (5) If the second does not effectuate testator’s intent, the first was never revoked.
4. NOTE: If Will #1 lost/destroyed, can still be probated under CA’s lost will provisions;
a. Can still be probated if at least one witness testifies as to the terms of the will (attorney)

MISTAKE REGARDING LIVING CHILDREN (PRETERMISSION)

1. Background Situation: (1) Testator writes a will, (2) testator has a child, then (3) testator dies w/o having amended will
2. RULE: Child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any
testamentary instrument (will, codicil, or revocable inter vivos trust)
a. The pretermitted child take an intestate share of the estate
3. NOTE: child born before testamentary instruments pretermitted only if testator erroneously believed child dead/did not exist

THE COMPONENTS OF A WILL

INTEGRATION

1. Integration: those pieces of paper, physically present at the time of execution that the testator intends to be the will.
2. Two Elements Required for Papers to be Integrated:
a. (1) Intent: Testator must have intended papers in question to be part of the will; AND
b. (2) Presence: The paper must have been actually or physically present at the time of the execution
3. Proving Integration:
a. (1) Establish a physical connection among all the pages
b. (2) Establish a logical connection
4. In essay, if issue of outside doc, discuss ALL 3: incorp by reference, Facts/Acts of Independent Significance, Section 6132

INCORPORATION BY REFERENCE

1. Incorporation By Reference: non-integrated writing is given testamentary effect and becomes part of the will IF:
a. (1) A document or writing exists apart from the will;
b. (2) the document or writing must have been in existence when will was executed;
c. (3) the document must be clearly identified in the will; AND
 d. (4) testator must have intended to incorporate the document into the will

FACTS/ACTS OF INDEPENDENT SIGNIFICANCE

1. Facts/Acts of Independent Significance: who a beneficiary is, or what gift is given, may be given meaning by facts of
significance independent from testator’s will (“I leave my property to the church I am a member of”)
a. Fact is significant independent from will (didn’t join church b/c of will) so is susceptible to independent verification
b. Doctrine allows us to fill in the blanks to the testator’s will w/ extrinsic evidence that is trustworthy
c. Ask: Even w/o the will, would this act have occurred, or this fact have existed

WRITING DISPOSING OF LIMITED TANGIBLE PROPERTY (Section 6132)

1. A Writing Can be Incorporated IF:

a. (1) The writing must be referred to in the will, dated and either signed or handwritten by the testator
b. (2) The writing must describe the items and recipients w/ reasonable certainty;
c. (3) The writing may be executed before or after the will;
d. (4) The writing directs disposition of tangible personal property (excluding cash) valued at <$5k ($25k in aggregate)

POUR-OVER WILLS

2. Pour-Over Will: part or all of testator’s estate is devised to the trustee of an inter vivos trust, to be administered pursuant to
terms of that trust.
3. Validating a Pour-Over Provision (Discuss ALL 3):
a. (1) Incorporation by Reference: a writing (trust instrument) in existence at the time that will is executed that is
clearly identified in the will and the testators intended to incorporate the trust instrument into the will
b. (2) Independent Significance: Even w/o the will, would have the inter vivos trust = independent significance
c. (3) UTATA: So long as you have the terms of the trust set forth in a written instrument, which was executed before,
concurrently with, or within 60 days after the execution of the will, the pour-over provision is valid

FORMALITIES OF EXECUTION FOR ATTESTED/FORMAL WILLS

ELEMENTS OF AN ATTESTED WILL (5 Elements)

1. (1) The will must be in Writing

2. (2) The will must be signed by one of the following:
a. (a) Testator (anything testator intends to be a signature counts)
b. (b) Third Person in testator’s presence and at testator’s direction (incapacitated)
c. (c) By a conservator pursuant to court order
3. (3) The signing must be done in the presence (sight or hearing) of 2 witnesses, both present at the same time
4. (4) The witnesses must sign the will during the testator’s lifetime
5. (5) The witnesses understand that they instrument they are signing is the testator’s will

6. HARMLESS ERROR RULE: if will does not satisfy elements 3, 4, or 5 (witnessing component), harmless error rule may
apply. Will can still be admitted to probate if proponent establishes by clear and convincing evidence that at the time the
testator signed the will, he intended the instrument to constitute his will.
7. If witness signs before witness, write: “If there is no issue of fraud or mistake, the will should be deemed valid under CA’s
‘substantial compliance’ doctrine”

INTERESTED WITNESS

1. Interested Witness: A witness who is a beneficiary under the will

2. Consequences: Will is not invalidated BUT, unless there are two other disinterested witnesses, a presumption arises that the
witness-beneficiary secured the gift by wrongdoing (doesn’t apply if taking only in fiduciary capacity – trustee)

CONDITIONAL WILLS

1. Conditional Will: will whose validity is made conditional by its own terms (“this is my will if I die in Europe”)
2. RULE: the will is to be probated only if the condition is satisfied (can be formal or holographic)
 FORMALITIES OF EXECUTION FOR HOLOGRAPHIC WILLS
ELEMENTS OF VALID HOLOGRAPH

1. (1) The holograph must be signed by the testator himself (no third parties or conservators)
a. Signature can be anywhere on the will
2. (2) The material provisions must be in the testator’s own handwriting
a. Material: “who” gets “what”
b. Not Material: Introductory clauses, executor appointments

TESTAMENTARY INTENT

1. Rule: in a holographic will, a statement of testamentary intent (“this is my last will”) need not be on the face of the will or in
testator’s handwriting (can be part of a commercially printed form
2. Extrinsic evidence is admissible to determine testamentary and a series of letters can constitute a will under integration

DATES

1. Rule: a date is not required on a holographic will

2. Rule: if undated holograph inconsistent w/ provisions of another will, undated holograph invalid to extent of inconsistency –
unless the undated holograph’s time of execution is established to be after the date of execution of the other will
3. Rule: if a holograph is undated, and if it is established that the testator lacked testamentary capacity at any time during which
the will might have been executed, the holograph is invalid – unless it is established that it was executed at a time when the
testator had testamentary capacity

CHOICE OF LAW
1. Rule #1: If the will complies with California formalities, the will is admitted into probate in California
2. Rule #2: If will complies with formalities of execution of place where will was executed, will is admitted into probate in CA
3. Rule #3: If will complies w/ formalities of execution of place where testator is domiciled at time of execution, the will is
admitted into probate in California

CODICILS
1. Codicil: testamentary instrument that’s executed in compliance w/ statute of wills, which modifies, amends, or revokes a will

REPUBLICATION

1. A Codicil republishes a will, meaning, that the will speaks from the date the codicil is executed
2. Pour-Over Wills and Incorporation by Reference
a. If first, inter vivos trust executed, then will executed w/ pour over provision, and then trust is amended, the pour
over provision cannot be incorporated by reference because the trust, as modified, was not in existence at time will
was executed. But if subsequently, testator executes a codicil, trust can be incorporated by reference again.
3. Pretermission: Will executed, child born, then codicil executed = no pretermission b/c birth deemed to take place after will
executed. NOTE: alternative theory also prevent intermission b/c codicil = testamentary instrument (discuss both)

REVOCATION OF CODICILS

1. Rule #1: if testator executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebuttable
presumption that the testator intended to revoke only his codicil
2. Rule #2: If testator executes a will, then executes a codicil, and subsequently revokes his will, there is a rebuttable
presumption that the testator intended to revoke the will AND the codicil.

REVOCATION BY PHYSICAL ACT

ELEMENTS

1. (1) Will must be burned, torn, cancelled, destroyed, or obliterated

a. Cancellation: lining/crossing out w/ pen/pencil
b. Obliteration: erasures
2. (2) Testator must have the simultaneous Intent to revoke (no accidents)
 3. (3) The physical act must be done by the testator or by someone in the testator’s presence and at his direction

CANCELLATIONS & INTERLINEATIONS

1. Rule for holographs: handwritten edits made by a testator to an existing holographic will are valid (can edit a holograph)
2. Rule for formal wills: Watch out for DDR – applies only if handwritten change to formal will was to increase benefit to
beneficiary (traditional view is if edit made to decrease gift, considered a cancellation and beneficiary gets nothing)
3. Rule: cannot increase a co-beneficiary’s gift by cancellation (“to X and Y” then cross out Y – x takes half, rest goes to
residuary devisees)

DUPLICATE WILLS

1. Rule: if testator, or someone in testator’s presence and at his direction, revokes by physical act on e the duplicate originals,
then the other duplicate original is also revoked, as a matter of law

MUTILATED WILLS: Will mutilated + last seen in testator’s possession, rebuttable presumption mutilated w/ intent to revoke

REVOCATOIN BY SUBSEQUENT WRITTEN INSTRUMENT

1. Manner of Revoking
a. (1) Express Revocation: Will #2 states “I hereby revoke all previously executed wills”
b. (2) Implied Revocation: Will #2 revokes Will #1 by implication if Will #2 totally disposes of testator’s estate
i. Spot the residue clause: if Will #2 has one, then it purports to dispose of entire estate
2. Revival
a. Situation #1: Will #1, then Will #2 which expressly revokes #1, and then revokes #2 by physical act. #1 revived only
if testator manifested an intent to revive #1 . Oral statements made at time #2 revoked are admissible
i. Rule: if subsequent revocation is by physical act, any evidence of testator’s intent to revive is admissible,
including oral declarations
b. Situation #2: If the subsequent revocation is by a new will/codicil, look only to the new writing for intent to revive

REVOCATION BY OPERATION OF LAW

OMITTED OR PRETERMITTED CHILD

1. Omitted Child: a child born or adopted after all testamentary instruments are executed and not provided for in any.
2. Testamentary Instrument: will, codicil, revocable inter vivos trust
3. Consequence: Omitted child receives a share of decedent’s estate equal in value to that which a child would have received if
decedent had died w/o ever making a testamentary instrument and other gifts abated= revocation by operation of law
4. 3 Exceptions:
a. (1) Decedent’s failure to provide for the child was intentional, and that intention appears in testamentary instrument
b. (2) At the time of execution of the testamentary instrument, decedent had one or more children and transferred by
will or revocable inter vivos trust substantially all of his estate to the parent of the omitted child.
c. (3) Decedent provided for the child by transfer outside the testamentary instrument w/ intention that the transfer be
in lieu of any testamentary provision (ex. annuity, life insurance contract)

OMITTED SPOUSE

1. Omitted Spouse: A surviving spouse who married the decedent after the execution of all testamentary instruments and who is
not provided for in any.
2. Consequence: spouse receives statutory share of the decedent’s estate equal in value to that which spouse would have
received if the decedent had died without a will. Statutory share = ½ of community property (ends up w/ 100% CP), ½ quasi-
community property (ends up w/ 100% QCP), and a share of separate property equal in value to that which a spouse would
have received if decedent had been intestate BUT no more than 50%). Other gifts abated = revocation by operation of law
3. 3 Exceptions:
a. (1) Decedent’s failure to provide for spouse was intentional and intent appears from testamentary instrument
b. (2) Decedent provided for spouse by transfer outside of testamentary instruments w/ intention that the transfer be in
lieu of any testamentary provision
c. (3) Omitted spouse signed a waiver = a voluntary relinquishment of a known right before or during marriage
i. (a) waiver must be in writing, signed by waiving spouse
ii. (b) full disclosure by decedent of decedent’s finances AND independent counsel
 iii. (c) even if no counsel, waiver still valid IF (i) waving spouse had/should have had knowledge of testator’s
finances OR (ii) waiver was in fact fair.
iv. Waiver will not be enforced if unconscionable

OMITTED DOMESTIC PARTNER

1. Domestic Partner: partners must be of same sex OR of opposite sex and at least one person is at least 62 years old; AND the
partners have filed a declaration of domestic partnership with the Secretary of State.
2. Same rights as married couples

FINAL DISSOLUTION OF MARRIAGE OR DOMESTIC PARTNERSHIP

1. Rule #1: By operation of law, there is a revocation of the devise to the spouse or DP if there is an annulment or divorce
2. Rule #2: Legal separation does NOT count. There has to be a final decree of resolution
3. Rule #3: The devise is reinstated if the will is unchanged and the testator remarries the former spouse/ reestablishes DP
4. Rule #4: These rules do not apply if will expressly states otherwise (“even if we divorce, my wife is to take my property”)

REVOCATION BY CHANGE IN PROPERTY HOLDINGS (ADEMPTION)

4 TYPES OF GIFTS

1. (1) Specific Devise: a gift of a particular item (adeem)

a. Testator must have intent the beneficiary takes this particular thing (objective manifestations of the testator’s intent
b. Real Property is always specific. Shares of a closely held corporation
2. (2) General Devise: payable out of the general assets of the estate (nothing special, unique about gift) (do not adeem)
3. (3) Demonstrative Devise: hybrid of SD and DD. A gift from a particular fund, but if that’s not enough, executor can resort to
general property
4. (4) Residuary Devise: all other property not expressly disposed of in the will (“I leave the residue of my estate to Mary”)

ADEMPTION BY EXTINCTION

1. Common Law Test: ademption by extinction is when a specific gifts fails b/c testator did not own the property at his death
2. CALIFORNIA RULE: no ademption by extinction if testator did not intend for gift to fail:
a. (1) No ademption by extinction when securities change form (mergers, stock splits, dividends, re-issued) because
testator did not change the stock, the corporation did
b. (2) No ademption by extinction if a conservator sells off the assets. Testator did not sell property, conservator did
c. (3) No ademption by extinction w/ respect to eminent domain proceeds, insurance proceeds, or installment proceeds,
or installment payments paid after testator’s death. If tracing of proceeds possible, can argue no intent to adeem.

ADEMPTION BY SATISFACTION

1. Ademption by Satisfaction: testator gives beneficiary an inter-vivos down payment on a devise Can establish in 4 ways:
a. (1) The will itself provides for a deduction of the inter vivos gift
b. (2) Testator declares in a contemporaneous writing that the gift is a satisfaction
c. (3) Beneficiary acknowledges in writing (at any time) the satisfaction
d. (4) The property given in the satisfaction is the same property that is the subject of a specific gift to the beneficiary =
ademption by satisfaction AND extinction (talk about both)
2. Rule: Where issue of predeceased beneficiary takes devise under the anti-lapse statute, the issue of predeceased beneficiary is
treated as if he or she had received the satisfaction, unless testator’s will/contemporaneous writing states otherwise.

ADVANCEMENTS

1. Advancements: an inter vivos down payment made by an intestate to an heir apparent (intestacy, whereas ademption = will)
2. Almost identical rules to ademption by satisfaction. Established in 2 ways:
a. (1) Intestate declares in a contemporaneous writing that the gift is an advancement
b. (2) Heir acknowledges in writing (at any time) that the gift is an advancement
3. If heir-apparent receives an advancement but predeceases the intestate, the issue of the heir-apparent is NOT treated as
having received an advancement unless the advancement provides otherwise (opposite of a satisfaction)
4. Valued by contemporaneous writing or fair market value

CONTRACTS TO MAKE/NOT MAKE A WILL

WAYS TO ESTABLISH A CONTRACT TO NOT REVOKE

1. (1) The will or other provision states the material provisions of the contract (“In consideration of $5k A gave me, I give A X)
2. (2) There is an express reference in the will, or other instrument to that contract (“pursuant to my K, this is my will”)
a. Terms of contract may be established w/ extrinsic evidence
3. (3) There is a writing signed by the decedent evidencing aa contract
4. (4) There is clear + convincing evidence of an agreement b/w decedent and promisee that is enforceable in equity (estoppel)
5. (5) There is clear + convincing evidence of an agreement b/w decedent and a 3rd person for the benefit of the claimant that is
enforceable in equity (estoppel)

WHEN CAUSE OF ACTION ACCRUES

1. Rule: the cause of action accrues when the decedent dies.

2. Exception: the cause of action accrues during the decedent’s lifetime if the decedent is engaging in conduct which would be
fraud on the promisee

JOINT AND MUTUAL WILLS

1. Joint Will: the will of two or more people on one document. The provisions do not have to be reciprocal. When the first
person dies, the will is probated. When the second person dies, the will is probated again
2. Mutual Wills: the separate will of two or more people which are reciprocal (Husband and Wife).
3. Joint and Mutual Wills: Reciprocal provisions on one instrument
4. RULES:
a. (1) Execution of a joint, mutual or joint and mutual will does NOT create presumption of a contract not to revoke
b. (2) But, it may be evidence of a contract, in conjunction with other factors

REMEDIES AVAILABLE TO PROMISEE

1. (1) Damages: plaintiff can sue decedent’s estate for damages

2. (2) Specific Performance: Plaintiff can seek to force executor to comply with terms of the contract
3. (3) Constructive Trust Remedy: the court can probate the will as it is, giving property to devisees, and make the devisee a
constructive trustee whose obligation will be to transfer the property to the promisee of the K

RESTRICTIONS OF TESTAMENTARY DISPOSITIONS

1. Community Property: all property acquired during the marriage or DP while domiciled in CA that is not separate property
2. Separate Property: property acquired before the marriage or DP, and during marriage or DP by gift, bequest, devise, and
descent together with the rents, issues, and profits thereof
3. Quasi-Community Property: for will purposes, all personal property wherever situated, and all real property in California,
acquired by decedent while domiciled elsewhere that would have been CP if the decedent had been domiciled in this state at
the time of acquisition

SPOUSAL/DOMESTIC PARTNER PROTECTION

1. (1) CP: Testator can dispose of only ½ of the CP

2. (2) QCP: Testator (who acquired QCP) can dispose of only ½ of QCP. The non-acquiring spouse has no testamentary power
to dispose of acquiring spouse’s QCP
3. (3) Widow’s Election: If a testator attempts to dispose of more than ½ of CP/QCP, the widow/er may accept the gift given in
the testator’s will in lieu of his or her statutory right (1/2 CP/QCP), called taking under the will, OR the survivor may
renounce all benefits given in the will and confirm his/her rights to ½ CP/QCP, called taking against the will.
4. (4) An inter vivos transfer by the decedent (acquiring spouse) of the QCP to a third person w/o consideration IS allowed.
a. (a) Exception: the transfer will NOT be allowed when the transfer of the QCP is deemed illusory and the surviving
spouse/DP invoke widow’s election. Illusory promise = when decedent retained some interest or control over prop.
Surviving spouse may require the transferee to restore ½ of the QCP to the decedent’s estate

UNWORTHY HEIRS OR BENEFICIARIES: KILLERS

1. Those who feloniously and intentionally kill the decedent cannot take. Proof needed:
a. (1) a conviction (includes a guilty plea) is conclusive.
b. (2) Probate court determines guilt by preponderance of the evidence
2. Consequences of finding felonious and intentional killing
a. Killer and issue don’t take. Killer is deemed to have predeceased the decedent and the ant-lapse statute doesn’t apply
 b. If joint tenant kills other joint tenant, there’s a severance of the joint tenancy, and killer loses right of survivorship
but not their half interest in the property
c. If beneficiary kills insured, takes no benefit under the insurance contract

INTESTATE SUCCESSION
SURVIVING SPOUSE/DOMESTIC PARTNER

1. Community Property: surviving spouse/DP inherits decedent’s ½ of CP (so has 100% CP)
2. Quasi-Community Property: surviving spouse/DP inherits decedent’s ½ of QCP (so has 100% QCP)
3. Separate Property:
a. (a) if decedent leaves no issue, parents, brother/sister or issue of a deceased brother/sister, all to surviving spouse/DP
b. (b) if decedent survived by 1 child/issue of predeceased child, ½ to surviving spouse/DP and ½ to child/child’s issue
c. (c) if decedent survived by 2 or more children/issue of predeceased children, 1/3 to surviving spouse/DP, 2/3 to
children or their issue
d. (d) if decedent survived by no issue, but leaves parent/s/their issue, then ½ to parent/s or their issue, ½ to spouse/DP

ALL OTHERS

1. Intestate Scheme In Order:

a. (1) Issue g. (7) Next of Kin (closest living blood

b. (2) Parents relative)
c. (3) Issue of Parents (Siblings) h. (8) Parents of predeceased spouse/DP
d. (4) Grandparents (former in-laws)
e. (5) Issue of Grandparents (Aunts/Uncles) i. (9) Issue of parents of predeceased
f. (6) Issue of predeceased spouse/DP (died spouse/DP (brother/sister-in-law)
while married to/in partnership w/ decedent) j. (10) Escheat

PER CAPITA/REPRESENTATION PROBLEM

1. Whenever issue take by intestacy, or will provides for issue w/o specifying manner, manner provided by Section 240:
a. Rule #1: Issue of same degree take “per capita”/equally + in own right. Make distribution at first level someone is
living + give shares to all living people at that generation AND deceased members of generation who leave issue.
b. Rule #2: if a will/trust calls for distribution “per stirpes” or “by right of representation, distribution is made at first
generation or first level, even if everyone’s dead, so long as they left issue. Issue step into shoes of deceased
(X)

(A) (B) Rule 2: per stirpes

Rule 1: 1/3 to C, D, and E
(meaning F and G each
get 1/6)
ADOPTED CHILDREN
Allocate ½ share each to
C D (E)
A and B. Outcome: C
takes ½, D takes ¼, and F
and G each take 1/8
F G

1. Adopted Children: always treated as a natural child of the adoptive parents

2. Adopted Child’s Natural Parents: adoption severs the relationship
a. Exception: the relationship w/ natural parent not severed if the adoption is by spouse/DP of natural parent or after
the death of either of the natural parents
3. Stepchildren/Foster Children: Treated as adopted IF:
a. (1) the relationship began during child’s minority;
b. (2) it continued throughout the parties’ lifetimes; AND
c. (3) established by clear + convincing evidence that stepparent/foster parent would’ve adopted but for legal barrier
4. Equitable adoption (adoption by estoppel): arises when parties hold themselves out as parent and child

NON-MARITAL CHILDREN

1. Marital status of parents irrelevant

 2. In a domestic partnership, parent-child relationship established as to non-birthing partner IF:
a. (a) Child born during DP (presumed to be child of non-birthing DP); OR
b. (b) non-birthing DP and birthing DP formed/attempted to form a DP in a lawful manner after the child’s birth and:
i. (i) the non-birthing domestic partner is named on the birth certificate; OR
ii. (ii) the non-birthing DP makes a voluntary promise to pay child support or is ordered to by court
3. Note: half-bloods inherit same as whole bloods

DISTRIBUTION OF THE ESTATE: WHO TAKES?

POSTHUMOUS CHILDREN

1. Posthumous Child: child conceived during the lifetime of the testator/intestate but born after the death of the testator/intestate
2. RULE: Posthumous children deemed heirs of the intestate and beneficiaries of testator’s will

LAPSE AND ANTI-LAPSE**

1. Rule of Lapse: A beneficiary must survivor the testator to take a devise. If the beneficiary does not survive the testator,
beneficiary’s gift lapses and, unless a contrary intent is expressed in the will, gift goes to the residuary devisees or intestacy.
2. Anti-Lapse Statute: lapse rule will not apply if the devisee who predeceased the testator was kindred of the testator or
kindred of the testator’s of a surviving, deceased, or former spouse/DP AND this predeceased devisee leaves issue. The issue
will step into the shoes of the predeceased devisee. (note devisee CANNOT be the spouse or DP). The issue take per capita.
3. Both rules apply to wills and revocable trusts

SIMULTANEOUS DEATH

1. Simultaneous Death Rule: if it cannot be established by clear and convincing evidence that the devisee survived the testator
(ex. both died in a plane crash), the Uniform Simultaneous Death Act provides that the devisee is deemed to have
predeceased the testator and will not take (gift will either be distributed under lapse or anti-lapse statute)
2. Joint-Tenancies: If parties are joint tenants and die simultaneously, the joint tenancy is severed and their estates each get ½
3. Spouses/DPs: If cannot tell who survived whom, each estate gets ½ of CP and QCP
4. Insurance: if beneficiary and insured die simultaneously, beneficiary is deemed to not have survived the insured. If there is an
alternate beneficiary named, then they take. If not alternate to insured residuary estate or intestacy.
a. NOTE: if insurance premiums paid w/ CP or QCP and insured and beneficiary are spouses/DPs, then ½ of the
proceeds go to one spouse/DP’s estate and ½ goes to other spouse/DP’s estate
5. 120 Hour Rule: applies to intestate succession only. If it cannot be shown by clear + convincing evidence that heir survived
intestate by at least 120 hours, then it’s deemed the heir didn’t survive the intestate (1 second rule applies to all other cases)

DISTRIBUTION OF THE ESTATE: WHAT DO THEY TAKE?

1. After-Acquired Property: property acquired after the will was executed. A will passes all property owned by testator at
death, including after-acquired property
2. Increase During Testator’s Lifetime: stock dividends or splits paid during testator’s lifetime go to the beneficiary if the
stock is owned by the testator at the testator’s death (doesn’t matter if general or specific)
3. Increase After Testator’s Death + During Probate:
a. Specific Devise: all increase goes to the beneficiary (stock/cash dividends, splits, rents, interest on indebtedness)
b. General Devise: do NOT receive any increase
4. Abatement: Omitted child/spouse Rules:
a. (1) First abate property not passing by the decedent’s will or revocable trust (intestacy)
b. (2) Second, abate from beneficiaries of testator’s will and revocable inter vivos trust pro rata, in proportion of value
of gift received (Kids = A, B, C (pretermitted) and estate = $90k. Take A and B’s $45k shares and abate by $15k)
c. (3) No distinction between specific, general, residuary gifts.
d. (4) Exception for Specific Gifts: court can exempt a SG if abating would defeat the obvious intention of the testator
5. Abatement: Pay general Debts Order:
a. Rule: 1st from intestate property, 2nd from residuary gifts, 3rd general gifts to non-relatives, 4th general gifts to
relatives, 5th specific gifts to non-relatives, 6th specific gifts to relatives.
6. Exoneration: debt extinguished
a. California Rule: no automatic exoneration. Devisee takes the specific gift subject to the encumbrance, unless
testator’s will states that the specific gift is to be exonerated (general direction to “pay my just debts” not enough)

WILL SUBSTITUTES
1. Gift Causa Mortis: a gift made in contemplation of immediate death (only personal property an must make delivery (actual,
symbolic, or constructive) of the property to the donee. Actual = corpus itself transferred to donee, Symbolic = something
representative of the corpus is given to the donee (like a writing), Constructive delivery = donor done everything possible to
effectuate delivery and no issue of fraud or mistake)
a. If donor survives the peril, the gift is revoked by operation of law