Wills & Trusts Fall 2012

Final Exam #: 4558

INTRODUCTION

Gratuitous Transfer
A. Transfer: movement of prop out of hands of A to B
B. Gratuitous: transfer made voluntarily and w/o material compensation
C. Distinguish from other transfers in other areas of law:
a. Involuntary transfers:
i. Unlike gratuitous transfers, involves a form of coercion the law does not
deem valid and unobjectionable
b. transfers w/ proviso to return (debtor/creditor law)
c. transfers made w/ proviso that B provide something diff to A (contract law)
Wills
A. Require formal document
a. Oral wills are almost universally void
B. Compare to contract: Parole agreements valid generally in contract law
C. Policy:
a. Effectuation of benefactor’s intent
b. Freedom of inheritance serves to encourage capital accumulation, industry, savings
Inheritance law
A. Primarily state law

TRANSFER OF D’S ESTATE

Probate and Nonprobate Property

A. Two ways to handle post-mortem prop:
a. Divide informally (family settlement, amicable division)
i. No legal obligation to handle through probate
b. Probate
i. Beneficiaries or creditors can petition ct to probate
B. Three core functions of probate:
a. Provides evi of transfer of title to new owners
b. Protects creditors by providing procedure for payment of debts
c. Distributes D’s prop to those intended after creditors paid

Proper Probate Court

A. Base line CL ct has SMJ over probate
a. Probate ct, orphan ct, surrogate ct – confined in SMJ to probate alone
B. Ct with Juris over D
a. Probate ct sitting in juris where D was domiciled
b. Ancillary probate proceeding:
i. If D domiciled in particular juris and had real prop in another, must hold
multiple probate proceedings
C. Probate Exception: Cannot bring case to fed ct even if diversity among contestants and sum
is sufficiently large enough
a. The only times fed cts can claim juris over probate matters:
i. Some fed Q involved
ii. Const cases

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 iii. Cases where CoA is one that could have been raised by ct of general juris
that has some sort of collateral probate ramifications

Creditors’ Rights
A. Have a rt to be paid along w/ beneficiaries
B. Survive death of debtor
a. Debt is senior to equity
i. Cs have priority over Bs
ii. The only assets Bs take before Cs are “exempt prop” that is NOT subject to
C’s claims by statute
b. Bs do NOT have to pay excess of debts
C. Priorities among Cs
a. Must follow priorities which vary btwn state law
b. Fed intrusion into state matters: Fed statute mandated by fed preemption
i. Any unsecured claim owed by D to fed gov’t must be paid first
c. Priorities under UPC
i. Super priority: Secured creditors claims by Cs who secured claims and filed
the necessary paperwork, assuming filed and perfected
1. Holder of securities, tax liens
ii. Highest state priorities goes to pay claims for administering estate
iii. Second priority: Mortician’s fees for burial expenses
iv. Third priority: Hospital and med fees approved during last illness

Probate Hearing
A. Who can start a probate claim
a. Creditors
i. Categories of creditors can receive priority in state law
b. Beneficiaries
B. Opening Probate
a. Probate and seek letters of admin in primary or domiciliary juris (where D
domiciled at death)
i. Ancillary admin if real prop located in another juris
ii. Letters testamentary/letters of admin
1. Authorize people to act on behalf of the estate
C. How do Cs find out probate proceeding is underway?
a. Personal rep has obligation to notify all Bs
b. Traditionally, notified by publication
i. Death notice in newspaper in circulation in cnty where D died informing Cs
to file their claims
c. Must contact personal rep and indicate formally that you’re making a claim
D. Statute of Limitations for Filing a Claim
a. Nonclaim statutes: claims filed after specified time period are denied
b. 4 month period begins from commencement of probate (when publications occur)
i. Some juris impose second SOL (typically 1-2 yrs) whether in/out of probate
1. Commences at date of death
2. Takes priority over first SOL whether or not in probate
3. If there’s an amicable split, you still need SOL starting from DODeath
4. UPC: 3 yrs, usu shorter
c. Formally filed: letter addressed to person as executor, not just individual

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 d. Secured creditors, mortgagees and loan owners with super priority do not have to
worry about SOL
i. Can foreclose at their leisure
e. Pope: hospital failed to make claim until 4 yrs after death, challenged OK creditor
nonclaim statute for violation of procedural DP for its short SOL (2 mons) and
failure to req actual notice (mail) to creditors
i. Parties entitled to actual notice where state action involved to give them
reasonable opp to be heard, but no req for notification w/o state action
ii. Policies at stake:
1. Public policy favoring expeditious settlement of estates vs.
2. Ensuring creditors have knowledge of the case
a. Unreasonable to assume creditors will discover death notices
in obscure newspapers far from their headquarters
b. Personal rep might have incentive not to bring probate
proceedings to attn of creditor
3. Policies are reconcilable w/ actual notice req – inexpensive, not
much time
a. Limited to known or reasonably ascertainable creditors
i. Unknown /not reasonably ascert. – publ. suffices
b. Personal rep will have to deduct $ from estate to notify
creditors, but it will minimize costs across the board to
establish efficiency
iii. Ct oversimplifies prob: reps can’t ask Ds who creditors are and it might not
be more expensive for Cs bc they are notified of death when Ds don’t pay
iv. In a flash after Pope, practically every creditor nonclaim statute in the US
became unconstitutional
f. Issues remaining after Pope
i. Pope didn’t address death-triggered SOLs
1. Can’t imagine how state could find state action under those circum
ii. What constitutes and are indicia of reasonably ascertainable C
1. It’s a standard, not a rule, so needs to be developed by case law
E. Takes the form of a summary administrative hearing
a. Caveat Proceeding / Will contest:
i. Does have ability to turn into adversarial trial if some party of interest
objects to simply following the summary process
F. First Q: Whether person whose estate submitted for probate is in fact deceased
a. Death cert suffices
b. When there is no corpus delectum, wait requisite number of years before
presumption of death (typically 5 years)
c. Unidentified bodies:
i. Sometimes bodies never found, but some explanation exists, in which case
probate may unfold immediately
d. Where there is an explanation for disappearance suggesting death
i. States typically req waiting period
ii. Most states repealing statutes in light of 9/11 for cases of terrorist attack
e. When missing person reappears:
i. CL: most cases allow you to get your property back
ii. Some juris don’t allow you to regain if you’re absentee
G. Second Q: Did D leave a will?
a. No will:

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 i. Prop distributed according to statutory scheme of distribution
ii. Law of intestacy
b. Will:
i. Will, rather than statute, governs
c. First point at which contest can ensue:
i. Is will genuine?
ii. If genuine, is it valid?
iii. If genuine and valid, what does it mean? How do we construe the doc?
d. If contest ensues, probate cannot proceed until contest resolved
i. Special Administrator appointed to administer prop pending resolution
H. Personal Rep appointed by Ct
a. Title varies depending on circumstances:
i. Administrator: intestate
ii. Executor: testate
1. Must be over age 18, close relative
2. Assuming will doesn’t name, look for closest relatives
a. Surviving spouse, etc.
b. Procedure delineated by Probate Code
i. Some juris hold elections
iii. Administrator with will attached: governed by will but fails to name personal
rep
b. Duties of Personal Rep
i. Name L to the estate
1. Reps the estate before probate ct
2. Must be named and state cannot proceed pro se before probate ct
3. Executor can also be L, but must distinguish what you’re doing in
each capacity
ii. Serve notice on all persons w/ claims to estate
iii. Marshall the assets of the estate
1. Collects entirety of estate
2. Bring suit if necessary
3. What comprises assets is not exactly the same as assets owned
during life. Death can change the quality
a. Annuities and pensions disappear at death
b. Rts to season tickets, Exclusive rts to publicity disappear at
death
i. You can bequeath rts to tickets
ii. Rts to publicity after death can be more valuable bc
death will enhance celebrity
iv. Is a fiduciary – has fiduciary duties
1. Must earmark prop, segregate from rep’s own prop
2. Can be analogized to a trustee, but duties differ significantly
a. Trustee has longer commitment – personal rep manages
temporarily and has no more than duty of conservation
v. Must file estate tax return if req’d and if taxes owed
vi. Must distribute estate to those entitled
vii. Files final acting w/ ct holding probate detailing distribution
I. Whether or not to hold probate proceeding
a. 2 circumstances make probate necessary:
i. Dispute over how estate should be distributed

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 ii. Where D’s prop is subject to some sort of formal title record
1. Ct will formally change title to person now entitled
b. Without either of those, really no need for probate
Title Record Problem No Title Record Problem
Car – if B wants to sell later. Many states Furniture
have title-clearing stats for cars Joint Checking Acct: just write checks
Mutual fund stock – call mutual fund and clear out the acct
company and try to negotiate title Life ins w/ named B
change Debts – if B pays them off
Debts – if B refuses to pay then creditors
have rt to probate if unsatisfied
Real property – always subject to title
record – not a wasting asset and
someone will want to sell eventually so
probate becomes unavoidable
c. Can be avoided if owner during life transfers all prop in joint tenancy or inter vivos
trust or makes arrangement for other forms of nonprobate transfer
d. Even if transferred by will or intestacy, not always necessary
i. Need not establish title for all prop
ii. Summary proceedings to clear title and give transferee official recognition
iii. Statutes to avoid probate when prop amount is small
iv. Statutes permitting collection of small bank accts, wage claims, automobile
certs
J. Closing the Estate
a. Rep must complete admin and distribute assets as promptly as possible
b. Judicial approval req’d to relieve rep of liab
c. Not discharged from fiduciary responsibility until ct grants discharge

Costs of Probate
A. Admin costs
a. Probate ct fees
b. Commission of personal rep
c. L’s fees
d. Appraiser’s and guardian ad litem’s fees
B. Most states: commission must be reasonable under circumstances

Universal Succession
A. Heirs or residuary devisees step into shoes of D at D’s death and take title and liabilities. Ct
will grant if necessary parties included and estate not subject to current contest or difficulty

INTESTACY

Introduction
A. Half the population doesn’t make wills for fear of unpleasantness, cost and time involved
B. People without wills accept intestacy law as their estate plans by default
C. Partial intestacy:
a. Part of probate estate not disposed of by will passes by intestacy
b. Personal prop: governed by law of state where D was domiciled
c. Real prop: governed by law of state where real prop located

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 D. Reconciling Intestacy w/ Intent Effectuation
a. Craft a statute that is representative of what people typically want
b. At least in the aggregate, we are effectuating intent and people can rely on the
statute that people will agree with and just rely on that instead of incurring
transaction costs of making their own wills
c. Problem: statutes haven’t been updated in awhile
UPC
A. § 2-101. Intestate Estate
a. Any part of the will that doesn’t pass by will
b. Partial intestacy:
i. Residual clause: devises any remaining property
1. Problem: Will isn’t prepared professionally
2. When residual clause exists and T’s estate doesn’t add up to 100%
B. § 2-102. Share of Spouse
a. If none, section doesn’t apply
b. If one, entitled to entire estate
c. Descendants:
i. If all descendants of surviving spouse and she has none from prior or latter
relationship, spouse takes all based on theory that s/he will provide
ii. Where surviving spouse has children from prior relationship, spouse gets
first 300k + ¾ remainder
iii. If NONE, but surviving parent:
1. Split btwn spouse and parent and spouse gets the most
d. Spouse gets pref
C. § 2-103. Share of Heirs Other Than Surviving Spouse
a. If D had children from prior relationship, spouse doesn’t take pref over them
completely
i. Spouse: first 150k + ½ remainder
ii. D can’t expect spouse to care for stepchildren who might not have a
relationship
b. If surviving spouse has children from prior marriage: 225k + ½ remainder
c. Any part of estate not going to surviving spouse goes to children by rep
d. If no children or spouses, goes to parents
e. If no parents, siblings
f. If no siblings, grandparents, uncles/aunts
g. Keep going out to third collateral line
i. Stop there under UPC – occurs in 26 juris
h. UPC and 12 juris allow in-laws to take followed by stepchildren
D. § 2-105. No Taker
a. Passes to the state
b. Taker of last resort
c. Laughing heirs:
i. UPC stops at third collateral line
ii. Such a distant relationship that inheritance would be ‘money from America’
iii. Not people D would really have wanted to benefit
d. Escheat does occur – if so, heirs still have a long time to come fwd and claim
i. Heirs have 8 years to claim

Intestacy Statutes
A. Matching statutes to what a majority of descendants would want, they can plan intestacy

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 B. Heirs (“distributes”): people entitled under intestacy statutes
a. While intestate indiv still alive, s/he has no heirs – only “heirs apparent”
b. Distinctions historically drawn btwn those who inherited real/personal prop
i. Heirs: real prop
ii. Next of kin: personal prop
iii. NOTE: most have done away w/ that distinction
C. Still need probate in intestacy
a. Need not take effect if survivors decide not to take it to proate ct, despite what
statute says by virtue of amicable division
D. Operate mechanically
a. No recourse to extrinsic evi – extrinsic evi of intent is irrelevant, just follow statute
b. Accomplishes two things:
i. Minimizes litigation
ii. Enhances predictability
1. Easier to figure out distribution, aiding person in deciding whether
he or she needs a will at all
c. Only living persons are entitled to be heirs
i. Typically surviving family members
ii. Typical heirs:
1. Blood relatives
2. Surviving spouse
E. Basic principle underlying close relatives taking to exclusion of distant relatives:
a. May be division btwn blood relatives and surviving spouse
b. Distant relatives often cut out exclusively
c. Principle of equality
i. No distinction btwn gender, age, wealth of heirs
ii. If in same degree of relationship, will take equally

Same-Sex Marriage, Domestic Partners and Intestate Succession

A. Shift in law appears to move towards legal recognition for gay/lesbian couples
B. Issue: criteria for recognizing domestic partner
a. 1995: proposed amendment – UPC 2-102B: provides intestate share for committed
partners
i. “committed partners”: person “sharing a common household w/ D in a
marriage-like relationship

Division of Shares by Representation

A. If takes are members of first collateral lines and dealing w/ siblings and children as opposed
to nephews and nieces
B. Three basic systems for estate distribution
a. English per stirpes (“by the stocks”)
i. Followed by 1/3 of states
ii. Prop divided into as many shares as living persons
b. Modern per stirpes (per capital w/ representation)
i. Followed in nearly ½ states
ii. Doesn’t just follow bloodline strictly
1. Make first generational division at the generation where there’s at
least one living taker
iii. After making first equal div, make equal divisions at any lower levels
iv. If any children, distribute under English per stirpes

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 v. If no children, divide equally at next level
c. Per capital at each generation (1990 UPC)
i. Never just follow blood lines
ii. Give away as many fractional shares at each generational share as have to be
given with the remainder, divide evenly at the generation level
iii. Section 2-106(b):
1. Divide equally among surviving descendants and any dead people
w/ living kids

C. Negative disinheritance
a. UPC 2-101(b): Negative will
i. Barred heir treated as if they’re dead
ii. Previous law didn’t allow disinheritance – had to devise estate to someone
else

Shares of Ancestors and Collaterals

A. Half-relatives
a. If D dies w/o spouse, parents, children, next line to take are siblings
b. UPC + Most juris: halfies are treated the same as wholes
c. Rule doesn’t take into acct contingencies of half siblings – may life in diff households
B. Adopted children
a. Treated for all purposes exactly the same as natural children
b. Severed from natural parents
c. Some states allow inheritance from both (CA allows under some circumstances)
C. Collateral kindred
a. All persons related by blood to D but who are not descendants or ancestors

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 b. If no spouse or parent, heirs will be remote ancestors or collateral kindred
D. First-line collaterals:
a. Descendants of descendant’s parents, other than the D and the D’s descendants
b. Ex. aunts, uncles
E. Table of Consanguinity
a. If there are no first-line collaterals, two scheme to who is next in line of succession
b. Parentelic system
i. Passes to g-parents and their descendents
ii. If non, great-g-parents and descendants and so on until heir found
c. Degree-of-relationship system
i. Passes to closest of kin, counting degrees of kinship

Transfers to Children
A. Adopted Children
a. General rule: no longer treated as a member of the natural family
b. Exception: when spouse of natural parent adopts a child, doesn’t sever relationship
w/ natural parent whose spouse is adopting
i. UPC 1-207(a): Exception – eliminates child’s rts to inherit from natural
parent
ii. Hall: D’s wife remarried and H adopted children. When D’s brother died
intestate, D’s children argued that they should receive as heirs. But ct said no
bc state law said relationship was severed.
c. Exception: children given up for adoption after death of both parents
B. Nonmarital Children
a. CL: filius nullius (child of no one) – born out of wedlock
i. Could inherit from neither
ii. If child dies intestate w/o spouse or children, prop escheats to the state
b. For many years, could only take by rt of intestacy from mother, not father
i. Evidentiary problem re: issue w/ paternity
ii. Lolly: NY statute allowed children to inherit from both but only if paternity
was established before death of father
c. Conflicting args:
i. Paternity test:
1. Would we want a father to provide for a child he didn’t know exists?
ii. No paternity test:
1. Had a parent child relationship – no determination doesn’t
necessarily imply no relationship
2. Furtive relationship that he didn’t want to rest of fam to know about
d. Issue of proof avail and rules of poor avail for child claiming paternity post mortem
e. Trimble: denial of inheritance from father was unconstitutional
i. Nonmarital children are not a suspect class but need substantial justification
to serve important state interest. State interest was not rationally related to
disinheritance from father.
f. Privacy rts vs. EP rts
i. Privacy rts becoming more insignificant given scientific advances
ii. Illegit child demands DNA test from genetic child to claim paternity despite
genetic child strongly opposing (Sudwischer)
1. Ct didn’t address alternatives:
a. Concede relationship to illegit child

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 i. Problems: would be giving away rts of other children
as well
g. Common law: presumption that father is mother’s husband
i. No longer exists in modern law – strong rebuttable presumption
C. Posthumous Child
a. Treated as being from conception if advantageous to child and child born alive
D. Posthumously conceived child
a. Born and conceived after death of one or both genetic parents
b. Nonmarital child even if parents married prior to conception
E. Embryonic children
a. H dies while W carrying child
b. After-born child can take as an heir along w/ preborn children
c. Wait until child born, then make division among children
d. Policy considerations:
i. Why don’t we follow Roe?
1. Policy rts are diff than those from Roe. Not concerned w/ mother’s
privacy, but concerned w/ father’s intent
2. Surely father would want afterborn child treated the same
ii. Administrative inconvenience
1. At time of D’s death, don’t know how to divid assets
iii. Modern technology allows procreation years after death
1. Don’t know how long you will have to wait

Three diff uniform acts for approaches to problems of embryonic children:

A. Uniform Status of Children of A (USCACA)
a. Child must be implanted prior to death in order to take as an heir
b. Three jurisdictions
B. Uniform Parentage Act
a. Inheriting depends on consent in written record
b. 5 juris by statute, 5 req written record but set some time limit for implantation (CA:
2 years of death)
C. Uniform Probate Code
a. Evi (not necessarily written) that parent consented to child taking as heir and
there’s a presumption that if the person who bears the child was married to
intestate D
b. If married at death and she subsequently bears child conceived or implanted post
mortem, statute presumes intent, otherwise not
c. Three jurisdictions

Insurance /Social Security Benefits to Children

A. Capato: in order to get SS benefits as a surviving child, must show child would comprise as
intestate heir, leaving uncertainty of the issue
a. Problems w/ case:
i. Could have made common law to fill these issues
ii. This is not an exercise of construction
iii. Intent effectuation missing from this analysis
1. Perhaps subsumed in reproductive rts of parent
iv. Technical objection is to engage in case by case intent analysis

Behavioral Contingencies and Intestacy Rights

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 A. Abandoning Spouse
a. Not reciprocal
b. Abandoning spouse loses rt to take as intestate heir of spouse but not vice versa
c. Abandoned spouse can take as heir of abandoning spouse
B. Abandoning Parents
a. Lose rt to take as heir of child, not vice versa
b. Some statutes apply to all cases, some only cover nonmarital children
C. Abusive heir
a. Heir who either phys or mentally abuses intestate loses rt to take as intestate heir
D. Unworthy heir
a. Heir who intentionally kills intestate
b. Not confined to intestacy
c. Loses rts to take as heirs and bequests made under T’s will
d. Slayers Statutes in 46 of 50 states

Bars to Succession
A. Homicide
a. Unusual situation: the act that changes the intent simultaneously disables T from
executing the cost so T has no time to execute a cost
b. Mercy kills
i. No exception made
ii. Where crim law policies conflict w/ other policies, crim law policies will
always take precedence – more important than intent effectuation
c. Slayers who plead temporary insanity
i. Unlikely that Ts would want insane killers to inherit
ii. Where there is a conflict btwn intent and crim law, crim law eclipses and
becomes the sole policy applied
d. Standards of proof in civil cases applies
i. Preponderance of evi
ii. Crim conviction not req’d
e. Usu treated as having predeceased T
B. Fiancees
a. Odd bc it’s likely that someone would want fiancés to inherit
C. Couples cohabitating but not formally married
a. Many states allow for common law marriage
b. Living together and holding themselves out as a married couple
D. Civil union
a. some states: only same sex
b. 3 juris: same sex and oppo sex if at least one of them over age 62
i. Financial incentive not to marry over 62 – two individuals unmarried would
get more altogether from SS if unmarried

Disclaimer
A. Heir declines to take prop
B. CL: it’s as if they received it and made a taxable gift to persons who took it
C. No gift tax consequences for disclaimer
D. Reasons for disclaiming:
a. Prop has no value, so costly to accept it
b. Often has to do w/ other kinds of financial planning
c. Benefits of disclaiming greater for people in the economic extremes, not mid class

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 i. Rich: tax efficient. Pass it off to next generation in lower tax bracket
ii. Poor: inherited money would go straight to creditors so declining preserves
the money for your family
E. Can you refuse?
a. Hinges on whether they were intestate heir or beneficiary under will
i. CL: heirs could not renounce inheritance but Bs could
b. All statutes have disclaimer stats overriding CL and allows both under heirs and Bs
to disclaim
c. Internal Revenue Code: allows both to disclaim for tax purposes
i. Disclaimer doesn’t comprise a taxable gift to the alternative taker
d. UPIA: weaker bc of ambiguities and unintentional consequences
F. Basic issues and elements
a. CL: oral declaration
b. Statutory rule: signed writing
c. Internal Revenue Code: same as statutory rule
i. Formalized by signed writing for tax code purposes
d. UPIA: backtracks
i. Doesn’t allow oral, but allows electronic disclaimer (email)
ii. Codifying states have eliminated that
iii. Problem: trap for the unwary
1. Doesn’t change tax code. May not realize that disclaiming
electronically is invalid for tax purposes
iv. Must be delivered to personal rep
e. Who is allowed to make the decision?
i. B/heir
ii. Can that person’s rep disclaim?
1. Varies from state to state
a. Guardian of minor or incapacitated person
b. Conservator
c. Personal rep of deceased descendant
2. Most juris that allow disclaimer by personal rep/guardian must be
authorized by ct
iii. UPIA:
1. Allows disclaimer by any fiduciary, incl a trustee for a competent B
2. Doesn’t req prior notice or ct order
a. Many states have modified the rule
f. When must disclaimer occur?
i. CL: “reasonable time”
ii. IRC: req’d w/in 9 months of B’s death
iii. UPIA:
1. Drops time req altogether
2. Potentially creates trap for the unwary: can miss deadline for tax
purposes
g. Who gets prop in lieu of disclaimant?
i. Disclaimant treated as predeceasing benefactor
ii. Alt taker is person who would have taken in that event
1. Under intestacy law, follow rules of representation
G. When Disclaimer is Barred
a. If disclaimant waived rt to disclaim contractually
i. Creditors might demand waiver as a prereq to obtaining credit

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 b. If B accepted an inheritance, that acceptance is final
i. Can’t change and retroactively disclaim once you’ve accepted
H. Are insolvent persons allowed to disclaim?
a. Varies from state to state
i. Majority allows
ii. Minority: bars either by case law or statute
b. UPIA: purports to be agnostic
i. States that it’s barred if barred by state law – punts to the state CL
ii. Unintentional consequence: the only way disclaimer could be held
ineffective as a matter of CL is by holding it to be fraudulent transfer
I. Qualified disclaimers:
a. Only qualified under fed tax code may escape gift tax liab
b. Made w/in 9 months after interest created or after donee reaches 21
J. Bankruptcy:
a. If filed before disclaimer, ct holds disclaimer ineffective under BK law
K. IRS as a Creditor
a. Fed law determines what prop is subject to tax lien
b. Under fed law, disclaimer ineffective to disclaim tax lien
i. Drye: disclaiming to daughter did not work to avoid IRS tax lien
1. D’s strongest arg was that mother couldn’t have intended for his
family to lose all their money bc of his Cs
c. To the extent that person is disclaiming, prop, exercising control over prop
i. Renders inheritance of prop subject to lien
ii. Hirsch: this is a bad way to look at it. Offering a homeless person a gift and if
they decline, they haven’t exercised control over it.
iii. If you receive inheritance and assign it to someone else you are deciding
who takes the prop
1. For tax purposes: that’s your prop that you are regifting subject to
gift tax and preexisting tax
2. Exercising total dominion as to who gets prop in your place
L. Rejected gifts vs. assigned gifts
a. Disclaimer is something in btwn
i. You don’t control who is getting prop in lieu of you
ii. Treated as predeceased and goes to next taker
iii. You don’t decide who gets it but you can figure it out
iv. Arbitrary line the IRS doesn’t follow
M. Collusive disclaimers are ineffective

WILLS
Mental Capacity
A. Test of mental capacity
a. Capable of knowing and understanding in a general way
i. Nature and extent of his or her prop
ii. Natural objects of his or her bounty
iii. Disposition that s/he is making of that prop and must also be capable of
iv. Relating these elements to one another and forming an orderly desire re: the
disposition of the prop
b. Test of capability, not of actual knowledge
B. Crucial question:
a. How do we construe language set out in will?

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 i. Issue of construction and interpretation
b. Assuming we can figure out what she intends by the words, will we give effect to it?
i. Limits on when we will give effect to wills
1. Slayers can’t inherit even if Bs want them to
2. Bs who die cannot take as a matter of law
a. Don’t need money when they’re dead
3. Enemy aliens
a. Set by fed regulations
b. Cuban nat’ls residing in Cuba, North Koreans
ii. RAP controls endurance of dead hand control
iii. Electric chair determines when you can give it to a spouse
iv. Can provide for your pet
c. D’s state of mind?
i. Limitations if T lacks mental capacity
1. Take into consideration not only what persons do or say w/ literal
intent to execute will, but also what T was thinking when s/he
engaged in act of execution
2. Look into realm of subjective experience as well as literal signing
3. Makes evidentiary process more difficult, particularly in light of the
fact that the testator is unable to testify
4. Good policy reasons for engaging in difficult evidentiary exploration
d. What are the requisite states of mind one must have to effectively draft will?
i. Testamentary capacity
1. At time s/he executes will, must possess some minimal mental
capability known as “having sound mind”
2. Doesn’t matter state of mind before or after the fact
3. Must be capable of comprehending 4 things:
a. Nature and extent of his or her prop
b. Recognize relatives – the natural object of bounty
c. Understand disposition that a will is making
i. Comprehend what a will does
d. Relate elements to one another
i. Rationalize estate plan in some way
ii. May still lack testamentary capacity for two reasons:
1. Age
a. All states have age req, usu 18
2. “insane delusion” aka “monomania”
a. Irrational belief that colors estate plan
b. Legal, not psychiatric concept – false concept of reality
c. Belief not susceptible to correction by presenting evi of
falsity (vs. mistakes which can be corrected w/ the truth)
d. Problem: Confirmation Bias
i. People seeing evi that confirms and discounting
contradictory evidence
e. Strittmater: P’s argued D bequeathing prop to Nat’l Women’s
Party was part of an insane and morbid aversion to men.
i. If delusion, how do we know it colored estate plan?
ii. How do we know she has no rational basis for belief?
e. What evi is admissible to challenge/defend testamentary capacity?
i. Caveat proceeding that constitutes a full blown civil trial

14
 ii. Usu rules of evi applicable to civil trials become relevant
1. Exclusionary rules, hearsay rules, rules of prejudicial evi
2. Ex. the fact that widow took flowers to husband and relatives’ graves
is prejudicial. Her state of mind is irrelevant and T’s state of mind is
all that matters.
iii. Types of evi admissible:
1. Symptomatic evi
a. T’s conduct (ex. father couldn’t recognize me)
2. Organic evi
a. CAT scans demonstrating brain damage/mental
deterioration
3. Opinion evi
a. Lay persons evi of testamentary
4. Estate plan itself
a. Only as circumstantial evi of lack of capacity
b. If all one has with which to contest a will is evi of unnatural
disposition, NOT enough
c. T who possess capacity does have a perfect rt to disinherit
relatives
i. May be disinherited for no reason
ii. Some T’s starstruck and leave everything to celebs
f. What evi would proponents put fwd to defend capacity of will maker?
i. Evi demonstrating that T had rational reasons (prior wills w/ estate plan)
ii. Showing T behaved in eccentric ways
1. Some people lead double lives – “I’m crazy, not stupid”
2. Some people feign craziness as a business strategy to gain deference
iii. Evi of lucidity at time of will execution
1. This is the only thing that matters
2. Was T that was failing about to pull himself together during will
execution ceremony?
iv. For insane delusions: did T have rational reason to believe that?
1. Evi that it is a SANE delusion is valid
2. T is not irrational but mistaken
3. Wills that are byproduct of “mistaken” beliefs are valid
a. Practical tip: have family doc on your side. They have special
access to T, expertise, seeming impartiality. Great credibility
g. Who has burden of proof?
i. Usu intestate of will will have to prove lack of capacity
ii. Begin w/ rebuttable presumption of mental capacity and contestant will
have burden of raising
iii. Bursting bubble rule:
1. Begin w/ presumption of capacity but if contestants come fwd w/ at
least a scintilla of evi demonstrating lack of capacity sufficient to
overcome demurrer, presumpt bursts and now having ment the
burden of coming fwd, burden of proponents that have to come fwd
w/ evi
C. Disadvantages to Limiting Testation to Sound Mind
a. By granting freedom of testation, we give people incentive to accumulate
b. Limiting testation might freeze estate into place years before T’s death

15
 i. Potential solution: “Doctrine of substituted judgment” - appoint guardian or
conservator rt to update estate plan on behalf of T who lacks capacity
1. Ct must review and authorize the will guardian proposes

Undue Influence
A. Encroachments by third parties on T’s mind
B. Even if T possesses sound mind and is fully capable of understanding prop/inheritants, can
still be challenged if T who possessed a sound mind came under sway of another person
C. Ambiguity over when influence becomes undue influence
a. Stems from the fact that almost certainly will be unclear whether any influence
exerted is in fact causing the disposition
D. Three elements:
a. Susceptibility
i. Look to factors such as T’s mental state, T’s phys state as indication of his or
her willpower
b. Opportunity
i. Did alleged influencer have an opp to exercise influence?
ii. Look to factors such as social relationship btwn T and alleged influencer and
phys proximity of T to alleged influencer on the assumption that it is more
difficult to exercise influence from a distance
c. Actually took advantage of preexisting opp to exercise influence over T
i. Consider evi such as terms of will itself, does it benefit influencer or others
close to influencer, what was alleged influencer’s role in will execution,
circumstantial evi: examples of influencer’s influence over T in connection in
other sorts of decisions
E. Remedy
a. Invalidity of will or whatever portion was the product of undue influence
b. No remedial rule for undoing intestacy
i. Ex. heirs unduly influence T not to make a will and thwart others from
becoming Bs. B might want to sue heirs.
ii. No CoA for contesting – would-be Bs must seek remedy in equity
iii. Equitable constructive trust against wrongdoing heirs to prevent unjust
enrichment
F. Burden of Proof
a. Contestants have burden of proving undue influence
b. Burden may shift depending on state law if alleged influencer stood in confidential
relationship w/ T
i. Ex. B is T’s doctor or business partner benefitting under the will
ii. Majority of juris: fact would suffice to shift burden
iii. Some juris: doesn’t matter
iv. Other juris req more – confidential relationship and something else
1. Rest 3d of Prop: Confidential relationship + other suspicious
circumstances (ex. confide relationship + played a role in drafting)
v. Three relationships:
1. Fiduciary
a. Confidential relationship from settled category of fiduciary
obligation
2. Reliant
a. Question of fact – must establish there was a relationship
based on special trust and confidence

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 3. Dominant-subservient
a. Question of fact – donor was subservient to alleged
wrongdoer’s dominant influence
b. Hired caregiver and ill/feeble donor; adult child and
ill/feeble parent
vi. Suspicious circumstances:
1. May be satisfied by showing influencer procured the will
2. Rest 3d of Prop. Sec. 8.3, cmt. h
vii. Burden on contestants to show fid relationship btwn influencer and T
1. Incumbent on other party to prove absence of undue influence
2. Person should take precautions to ensure roof exists that transaction
was fair, principal fully informed, and he is in best position after
transaction to explain and justify it
viii. Once presumption shifts, difficult burden to meet and disprove undue
influence (Moses – although no evi that he knew about the will or exercised
influence, lost bc he served as her L in other connections and had fiduciary
relationship)

Will Contest
A. Commonly employed as deterrent
a. Anyone who challenges and fails will lose benefits under the will
b. Validity varies from state to state
c. Plurality of states: no contest clause valid if and only if there was no PC for contest
i. If reasonable basis for suit, no contest clause is void. Only want to deter
unmeritous litigation
d. Lipper: didn’t deter w/ no contest clause bc they weren’t Bs so had nothing to lose
B. Model Rules req C’s informed consent to make L the trustee or executor
C. Unavailable precaution
a. Litigating the issues / having probate while T still alive
b. Vast majority does not allow, 4 juris allow
c. Would be the best available evidence
d. Significant factor in outcome is who alleged influencer is
i. Spouse: Practically impossible to win against spouse
1. T acts “in his best interests to promote marital harmony”
ii. Paramour (Moses) good shot at winning against paramour
1. Presumption of UI when drafter receives legacy, except when L
related to T – rebut w/ C&C evi
2. Exception for permitting gift to nonrelated L-drafter
a. C consults indep L who attaches Cert of Indep Rvw stating
that reviewing L concludes no UI, fraud or duress
3. Unethical conduct:
a. Cannot solicit substantial gift from C or draft will giving L any
substantial gift unless related to C
b. Attny Griev. Commn. v. Brooke: L suspended from practice
for bequeathing himself all his friend’s stuff even w/o UI. No
Advice from indep L
iii. Heir/would-be heir: harder to win
D. Role as a Drafting Attorney
a. You have a responsibility to explore and assess client’s capacity in making will
i. If potential UI, must sequester your client

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 b. Must think of how you can safeguard the will against a challenge if you determine
client is of sound mind
i. Collect evi beforehand to prove T made the will they did
ii. Must be in T’s words and phrased in mild lang (its’ a public doc)
c. Subject to bar discipline if reasonably judged to lack capacity/UI
d. Should still draft the plan they want as long as it’s legal and they’re of sound mind

Fraud
A. T deceived by deliberate misrep and does something he would not have done w/o misrep
a. INTENT to deceive and PURPOSE of influencing
b. The rest of the will stands, unless fraud pervades the whole will/is inseparable
B. Subject to suit in equity for equitable constructive trust against wrongdoer if perpetrator of
fraud are heirs
a. No opp for contest there. Can contest will, can’t contest intestacy.
C. Typically UI claims and fraud claims brought in same caveat
D. Public policy: same as for undue influence
a. Intent overborne by third party wrongdoer
E. Subspecies of fraud:
a. Fraud in the execution
i. Relatively rare
ii. Wrongdoer tricks T as concerns the contents of will (what T’s effective
estate plan is
1. Placing language in there that’s not supposed to be there
2. Many involve blind T’s where it’s easy to pull off
3. Telling someone there’s a will in envelope and it’s fake
iii. Puckett: nurses persuaded T that her relatives wanted to put her in a home
to persuade her to make a will favoring them
1. Set aside for taking advantage of their status as nurses and as attnys-
in-fact under power of attny
b. Extrinsic fraud
i. Fraud committed by third party w/o participation of T
ii. Wrongdoer has possession of a will or knows where will is and either
suppresses it or destroys it
iii. Crim and civil misconduct in many juris
c. Fraud in the inducement
i. Deceitful conduct calculated to cause T to make/revoke will
ii. Wrongdoer intentionally misinforms T about facts, tricking them to believe
facts that aren’t true
iii. Has to be intentional conduct. Misinformation not enough. Deliberate.
iv. Can take several forms:
1. Actions as well as words
a. Lipper: alleged Frank intercepted cards and flowers g-kids
sent to T in effort to convince her they didn’t care about her
i. Actions, if proven, would amount to fraud in the
inducement
2. Omission of words
a. Failure to provide relevant info
b. Ex. Doc made promise to T that he would care for her in
exchange for her estate w/o telling her that she was
terminally ill w/ cancer and would die shortly

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 c. Intentional failure to communicate
v. Estate of Carson: man deceived woman into marrying him and giving him
her entire estate even though he was already married
1. Question of fact for jury: may be upset about trickery or thankful for
deceiving her into happiness
d. Duress
i. Wrongdoer’s physical intimidation or threats to induce T to make/not to
make a will
ii. Need not in and of itself constitute crim/tortious activity
1. Verbal arm twisting may suffice

Tortious Interference w/ an Expectancy

A. Rest 2d of Torts § 774B: Intentional interference w/ expected inheritance/gift = valid CoA
a. P must prove interference involved conduct tortious in itself (Fraud, duress, UI)
b. Cannot be used when challenge based on T’s mental capacity
B. Situations available to bring suit:
a. Instances of wrongdoing (UI, fraud, duress)
b. Unavail in absence of wrongdoing where will might have been invalidated due to
incapacity or insane delusion
c. Not avail everywhere – 21 juris; 3 rejected
d. Most juris that allow only avail if no remedy in probate
e. In juris where not contingent on unavailability of probate, choices to make
i. A form of forum shopping for remedies
ii. Rules of evi applicable in tort may be diff than those in probate
1. Ex. burden shifting
iii. Advantage of tort action: D might be insolvent
iv. Amy bring suit for emotional distress (trauma from disinheritance) or
punitive damages for tortious interference
C. Not a will contest
a. Does not challenge probate or validity of will
b. Seeks to recover tort damages from third party for tortious interference
c. SOL: starts running at time P discovers/should have discovered fraud/UI
d. If P contests will and loses, usu barred by res judicata from pursuing tort damages
D. Schilling: T’s brother sued caretaker for intentional interference w/ expectancy of
inheritance after C cared for T and convinced T to name C as attny-in-fact and did not
inform T’s brother of conclusion of probate proceedings.
a. Short SOL for filing caveat would be tolled for failing to inform would-be Bs and
creditors
b. Allowed to bring suit directly in tort for tortious interference w/ expectancy

Procedural Requirements
A. Established by state law – statute of wills
B. UPC elements
a. Must be in writing
i. “Nuncupative” will: few juris limited circums allow wills made by oral comm.
1. Allowed only during last illness of T
2. Couple of other juris: if T in military in a warzone
b. Signed by T

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 i. If T unable to sign (paralysis, cerebral palsy) don’t necessarily have to sign
themselves, can be signed in T’s name by another indiv acting in T’s
presence and at his or her direction (amanuensis)
c. Must be witnessed
i. Witnesses must also sign
ii. Variation among state re: witness number and rules
1. Roman law: no fewer than 7 witnesses req’d
2. Majority now: 2 witnesses OR 1 witness, 1 notary public
iii. Witness competence
1. Rules vary by jurist
2. Age req’d – usu 18
3. Disinterested (CL rule)
a. Neither spouses nor Bs under will
b. Incentive to commit perjury if interested, thus they are
incompetent
c. Rule is gone now
d. Some juris have a purging statutes where interested W’s lose
their inheritance under the will, depriving them of incentive
to commit perjury
i. Hirsch: purging stats should be restructured – if
you’re an heir, don’t you have the same motivation to
perjure yourself against the will?
ii. Other rules deter perjured testimony: crim penalties
4. Parsons: T had three Ws, two of which had interests. One disclaimed
interest but ct held invalid under purging statute
a. Gambit failed bc Ws need to be disinterested not just when
they testify but also during will execution ceremony
iv. Problems arising from witness req
1. CL: interested Ws could not serve at all (no longer true anywhere)
2. Will witnessed by two interested Ws valid, but may affect validity of
bequeath
a. Shares going to interested Ws are purged (30 juris)
3. UPC: interested Ws can prove will AND receive bequest
4. Supernumerary rule: if in purging statute juris, if that W’s testimony
unnecessary, they can keep their share
a. Ex. using 3 Ws, 1 interested W
b. HOWEVER, if you would have to choose btwn potential
supernumeraries, both lose their shares
d. Publication (5 juris, not incl, in UPC)
i. T must declare to Ws that this is his or her will
C. Function of formality
a. Justification assumes that in giving, people are fundamentally unreliable and
deceitful whereas for arms-length relationships, people are trusting
b. Three primary functions:
i. Ritual function
ii. Evidentiary function
iii. Protective Function
c. Reasons for Requirements
i. Ensures transferor deliberately intended to effectuate transfer
ii. May increase reliability of proof presented to the ct

20
 iii. Protective function: protecting T from UI
d. Channeling Function:
i. Easier to determine T’s wishes if they’re recorded in standardized form
ii. Ask whether formality promotes T’s intent at an acceptable admin cost
D. Writing, Signature and Attestation: Strict Compliance
a. Traditional law req’d strict compliance w/ Wills Act to admit to probate
b. Groffman: failure of protocol makes will void even if T’s intent to make will.
c. Even if juris doesn’t’ req simultaneity, necessary that witnesses be present when T
either signs or at least acknowledges a prior signature
d. Meaning of “signature”
i. UPC 5-502(a): T req’d to sign will
ii. Mark, cross, abbreviation ,or nickname sufficient
iii. Valid if W assists in signing if T intended
iv. Valid if someone signs at his discretion
e. Order of Signing
i. Generally T before Ws
ii. If sign as part of continuous transaction, order not critical
f. Delayed attestation:
i. UPC 2-502(a)(3)(A): “w/in reasonable time”
g. CA: must sign during T’s life, but allows harmless error
h. Attestation Clause: PF evi T voluntarily signed will
i. Permits probate of will when W forgets or dies before T
ii. Attestant expresses present intent to act as a W
iii. No state reqs but clause gives rise to presumption of due execution and it’s
almost malpractice not to include
i. Affidavit: sworn statements duly executed
i. Same functions as attestation, but also permits probate w/o req’in
appearance of either W
ii. Affiant swears will has already been witnessed
iii. Intention that it be used solely in conjunction w/ duly executed wills
j. “Writing” for Video or Electronic Wills
i. Video of execution ceremony may be admissible to prove due execution
ii. Harmless error rule:
1. Allows defectively executed doc to probate if c&c evi it was intended
to be a will
iii. Electronic will probably doesn’t satisfy writing or sig req’s but might be
allowed under substantial compliance or harmless error rule
E. Ritual Function
a. Will execution ceremony underscores to T that they are doing something
performative – simplifies process for ct to determine when people are conjuring
b. Ultimately distills down procedural reqs to a cognitive req
F. Evidentiary Function
a. Affords probate ct evi that will is authentic
b. Makes it easier to reconstruct what terms are, given that T is dead
G. Protective Function
a. Protects T from duress, UI, fraud in execution when witnesses are there
b. This method might also be destructive
i. Person who has an undoubtedly authentic doc but trips over the formality
makes the will ineffective
c. Trend of pruning back formalities to ensure we have evi to maintain solemnity

21
 d. Trend to waive technical violation where ct is satisfied that will is authentic and
manifests animus testandi
i. Substantial Compliance: Judicial Doctrine
1. Construe statute to allow it to waive minor technical insubstantial
defect w/ the will execution protocol
ii. Harmless Error Rule aka Dispensing Power: Statutory Doctrine
1. More potent power under UPC
2. Even if substantial violation, can waive if c&c evi of authenticity
3. Endorsed by 2d and 3d Rest.
4. Ranney: Ws did not attest to execution of will, but signed swearing
they previously signed as witnesses during a ceremony that never
occurred.
e. Policy for insisting on strict compliance
i. Ls will be more careful if practicing in a strict juris
ii. Even if will valid, great cost of substantial compliance (trial costs)

Cognitive Requirements
A. Rational, willful, unforced, must be product of honesty
B. Animus testandi: capacity to understand words have effect of making a performative will
and as the procedural reqs likely underscore, T must intend words to make a legally
effective will

Substitute Forms of Evi to Prove the WIll

A. Self-Proving Will
a. W affidavit stating will execution properly observed
b. L executing ceremony: after, W asked to sign affidavit that ceremony followed
c. Accepted everywhere as valid alt to in person testimony
B. UPC:
a. If no W avail to testify, will can be proved by other evi or affidavit
C. Missing Wills
a. May raise Q about whether will in fact revoked or not.
b. Rebuttable presumption of revocation
c. Can be probated even if missing
i. May be constructed from memory or Xerox copy but rules of proof may be
stricter
ii. Matter of state law
iii. UPC: no diff btwn proving lost wills and found wills – evidentiary requisites
are the same
1. Not same in lot of juris. Lots of them are stricter in req’ing standard
of proof of who is allowed
d. As an L, take care to keep a copy of the will and take notes at will execution
e. Some juris allow Ts to pre-submit wills to probate ct
f. If using a corp fiduciary as executor, have them preserve will
i. But people will usu have family as executors
ii. Best place to store a will: safe deposit box

Holographic Wills
A. Allowed in slightly over half the states (p. 269 has list of juris)
B. Written by T’s hand and signed by T
C. No witnesses

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 D. Requirements
a. Vary from state to state
b. Written out in long hand by T. Can’t use emanuensis
c. Must be signed everywhere by T
d. Apart from that, little variation btwn states
i. Some only req all material provision be handwritten, while others don’t
permit any nonhandwritten material to appear
E. If juris doesn’t allow, handwritten will valid if witnessed
F. Public policy benefit:
a. Easier under exigent circumstance to get will operative fast
b. Gives people opp to make a will in a simple way w/o aid of L
G. Evidentiary function:
a. Idea that handwriting serves that function
H. Ritual function:
a. Poorly served
b. Difficult to know whether T who writes a will w/o ceremonial elements added to it
really intended legal effectiveness
c. Particularly difficult when holograph not self-contained by appears w/in something
else or otherwise has elements that appear informal
I. Extrinsic evi allowed to demonstrate performative nature of holograph
a. UPC allows to demonstrate performative nature
b. Ex. Letter introduced into probate as holograph that included language “I want my
daughters to share 1/3, 1/3, 1/3”
i. Ct held insufficient to demonstrate intent to be effected as holographic will
J. Kuralt: H had secret relationship w/ S behind W’s back. Told S through holographic will that
he would bequeath her all prop but later prepared will without any mention of real prop.
a. Letter was valid holographic will. Extrinsic evi of closeness of relationships.
b. Made specific bequest and did not purport to bequeath entirety of estate
c. Bedrock principle of honoring intent of testator

Conditional Wills and Bequests

A. Bequests that depend on occurrence of some event
B. Generally valid as long as the condition doesn’t violate public policy
C. Three conditions distinguished under the law:
a. Condition for effectiveness of bequest is not under anyone’s ctrl but has to do w/
extrinsic circumstances
i. ALWAYS valid
b. Condition under ctrl of B
i. VALID
c. Behavior of B
i. “To A if A does something”
ii. Valid only if bx encouraged by condition does not violate public policy
d. Condition may concern bx not of B but T
i. To A if T does something
ii. Contingent on T dying from some anticipated hazard
D. Problem: language often ambiguous
a. Question of whether language truly intended to establish legal condition for
effectiveness of will or merely noting T’s motivation for taking the occasion to
execute the will
i. Is it unconditional but merely explanatory or is it really a fear

23
 E. Resolving the problem:
a. Construction principle:
i. When faced w/ ambiguity, make presumption against intestacy
1. Presume will unconditional
b. Look at what T does w/ will after surviving the potential condition
i. If they have continuing motive to maintain the will

Mistakes
A. General rule: no remedy for mistake in the inducement to make will
a. Bc everyone is mistaken about something, allowing will challenges bc of mistake
would open the floodgates to litigation
B. Exceptions:
a. Fraud in the inducement – brother induces T to favor him over daughter
i. Dishonest (rather than honest) mistake which is remedial
ii. Stronger public policy in favor of intervening so wrongdoers do not profit
b. Insane delusion – daughter looks like him but he refuses to believe relation
i. Irrational mistake will invalidate will
ii. Distortion in estate plan likely to be greater
c. Mistakenly believes child is dead
i. 21 juris will provide intestate share
d. Mistake in the execution – clerical error and will doesn’t say what it’s supposed to
i. Remedial everywhere
ii. Strong presumption that T meant what was stated but if it can be shown that
it doesn’t, at least to some extent we can correct the mistake
iii. Can strike language not intended to be there
1. Can remove excess language but can’t do the reverse
2. Clerical error of omission
iv. Policy justification:
1. Evidentiary problem diff and calls for separate analysis from
mistakes in the inducement
a. We know T wants something bc he signs, but we aren’t sure
about what T thought s/he was signing. Did they want what
the will said or something else?
2. Can rely on disinterested testimony of L to answer
v. Hirsch: Weird to distinguish btwn adding and taking things out of will
1. Same evidence either way. Only distinction is bc what they believe
the statute of wills permits
vi. Some states will add material that was supposed to be there
vii. Other states apply strict rule barring extrinsic evi
1. Material stricken when it’s clear from face of will
2. Testimony stating that will incl lang that wasn’t supposed to be there
will be inadmissible

Excusing Execution Defects by Ad Hoc Exception

A. Traditional rule: strict compliance – any mistake in execution invalidates will
a. Some states allow minor defects
b. In re Pavlinko’s Estate: H and W drew up wills leaving prop to one another but
signed the wrong wills. After W died, didn’t offer to probate, subsequently when H
died, tried to probate and they refused.
i. Ct allowed bc it was a “meaningless nullity” and were mirror image wills

24
 ii. Mistake was insubstantial
B. UPC 2-805. Reformation to Correct Mistakes (p. 351)
a. C&C evi that T’s intent and terms of governing instrument affected by mistake of fact
or law whether in expression or inducement
C. Ratification
a. If someone apprised of mistake in the execution and affirmatively ratifies the will as
is, no longer a mistake

Revocation of Wills: By Writing or Physical Act

A. Wills are not binding but are ambulatory
B. Two ways to revoke:
a. (1) Revocation by subsequent executed writing (right way)
i. Execute new instrument superceding previous one
ii. Last will is effective and revokes old one by subsequent execution
iii. Codicil: modifies previous instrument
iv. Right way bc it avoids ambiguity
1. Possible ambiguity: whether subsequent instrument intended to be
new or merely codicil
v. How do we tell intent?
1. In absence of contrary evi, construction rules that apply is that if
second instrument is incomplete, begin w/ rebuttable presumption
that it is a codicil
a. If second instrument complete, rebuttably presume it’s a will
i. Follows presumption against intestacy
b. Avoid this ambiguity by properly labeling second instrument
b. (2) Revocation by act
i. Occurs if T does two things:
1. Either destroy or cancel (by drawing lines_ or otherwise mutilate
face of will
a. Must do so himself or ask someone else to do in T’s presence
and acting on T’s behalf
2. Must do so w/ intent thereby of revoking will
a. Animus revocandi: intending to revoke by mutilation
ii. One without the other is not enough and can be probated as lost will
assuming it can be proved
iii. Thompson: T signed a will and codicil. Told L to destroy but kept them as
memos.
1. Not revocation by subsequent writing bc no witnesses.
2. Not holographic bc she didn’t write it
3. Not revocation by act bc it wasn’t on the face of doc, but on back of
manuscript
a. Must affect written parts of the will
4. NOTE: UPC no longer reqs revocation on the face
iv. This is the wrong way to revoke a will:
1. Since it doesn’t have to be witnessed, won’t necessarily know the
circumstances under which the will disappeared
a. Question arises over whether it was destroyed on purpose,
accidentally or fraudulently by some third party
2. Also occasions uncertainty over what estate plan results from it
a. Some juris: revocation conclusively revokes all codicils

25
 b. Other juris: codicil stands on its own
c. Other juris: rebuttable presumption of what T intended by
revoking will but not touching codicil
d. Conflicting juris on whether destroying new doc revive old
i. 11 juris: English statutory rule
1. Conclusive presumption of non-revival
2. Will 1 destroyed by subsequent writing, Will
2 destroyed, so intestate
ii. 8 juris: Original UPC
1. Rebuttable presumption of nonrevival
2. Presumption rebuttable by evi that T
intended to revive former will/bequest
iii. 13 juris: revised UPC
1. Diff answer depending on whether dealing
w/ will-will sequence vs. will-codicil
2. Will- will: rebuttable presump nonrevivial
3. Will-codicil: rebuttable presump revival
v. Determining whether it is deemed revoked or lost
1. Rebuttable presumptions:
a. If last known in T’s possession, destruction presumed w/
intent to revoke
b. If last known NOT in T’s possession or if whereabouts
unknown, presumed not destroyed and probate as a lost will
c. Oral revocation inoperative
C. Problem: revocation by inconsistency
a. Modern view: subsequent will that doesn’t expressly revoke prior will but devises
entire estate presumptively replaces prior will
b. Codicil: one that doesn’t’ dispose of entire estate. Rest of prop disposed of according
to prior will.
i. Supplements, rather than replaces a will
D. Dependent Relative Revocation
a. DRR: testator purports to revoke upon mistaken assumption of law or fact
i. Ineffective if T would not have revoked if he knew the truth
ii. Can be deemed conditioned on estate plan T believed would come into
effect. If it doesn’t, revocation can be undone bc condition didn’t occur.
b. Judicial doctrine premised on legal fiction
i. Ex. T creates will (1995) giving everything to W but if she dies, to two kids.
Creates new will (2002) giving everything to W but if she dies, to three kids.
Ripped up W1 so child wouldn’t know of exclusion, but W2 violated statute
of wills. If in violation, revoked W1 by ripping and W2 doesn’t work so T is
intestate. Under intestacy, W gets ½ and kids get ½.
1. Holding: legal fiction dependent on condition of new will, W gets all.
c. If you cant determine whether or not T would have wanted to invoke DRR, ct wll not
invoke
i. Ex. original will gave 1k, crosses it out and puts 500. Don’t know if T would
prefer giving the 1k or 0
d. Extrinsic evi admissible to establish T wanted to invoke DRR
i. Not against great weight and clear preponderance of evi to find T revoked
will under mistaken belief of reinstating previous will (Estates of Alburn)
ii. Mistake in de-execution:

26
 1. Mistake in what estate plan stems from revocation
E. Revival
a. Three groups of states
i. (1) Not revoked unless will 2 remains in effect until T’s death
1. Will 2 not legally effective during T’s life
2. Technically not revival bc never revoked
ii. [Majority of states] Legally revokes at time Will 2 executed
1. Two groups:
a. (2) Upon revocation of 2, 1 revived if T intends [Majority]
b. (3) Revoked will cannot be revived until re-executed w/
testamentary formalities or republished
b. UPC 2-509. Revived or Revoked Will
i. (a) if subsequent will wholly revokes previous, presumption it remains
revoked
ii. (b) partly revokes, presumption will is revived

Revocation by Operation of Law: Change in Family Circumstances

A. Will or bequest under will may be revoked not bc T does something to revoke it but simply
by virtue of implication of change of circumstance
a. Change of circumstance if dramatic enough can imply intent to revoke bequest and
that occurs w/o T lifting a finger to do so
i. Old CL doctrine: applied to situations where T makes bequest and
beneficiary subsequently becomes T’s enemy
B. Three situations where revocation might be implied by change of circumstance
a. (1) Divorce
i. If T makes bequest to spouse then subsequently divorces, spouse loses
bequest under predissolution will (49 of 50 juris)
ii. Purely revocatory doctrine
iii. Most juris and UPC allow annulment
1. NOT mere separation agreement
iv. Whose bequests are impliedly revoked under doctrine:
1. Most juris: confined to only former spouse
2. UPC: revoke by implication not merely bequest but to any other in-
law, including step children
v. Instruments covered by doctrine:
1. Wills
2. Juris vary on allowing will substitutes
a. UPC: any governing instrument, incl every existing will sub
vi. Fed law preempts state law to the extent it exists
1. ERISA statute: says nothing about revocation by operation of law. No
stated form of implied revocation anywhere in ERISA raising issue of
whether ERISA intended to preempt state law or whether state law
fills in gaps of ERISA in this regard.
2. Eggoloff: silence of ERISA impliedly preempts state law. Doesn’t
create implied doctrine of revocation, so it goes to divorcee.
vii. UPC: if any section preempted by fed law, former spouse personally liab for
payment or value of prop to would-be B who would have rec’d under fed law
viii. Evi to override revocation by operation of law
1. UPC: Will itself must anticipate divorce and despite divorce, allows
spouse to take to avoid application of doctrine

27
 a. Mere circumstantial evi that T intends it to stand not enough
b. Exception (e): couple divorces then subsequently remarries
b. (2) Will followed by marriage
i. Impliedly revoked to extent necessary to create intestate share for new
spouse under premarital will (34 of 50 juris)
ii. Majority: if T executes will and subsequently gets married, gives spouse
intestate share unless omission intentional and mentioned in premarital will
iii. Minority: premarital will revoked entirely upon marriage
iv. Where spouse doesn’t take intestate share bc mentioned in premarital will,
may be entitled to elective or forced share avail to spouses in SP states
whether intentionally or unintentionally disinherited
c. (3) Birth of child
i. Impliedly revoked to extent necessary to make up intestate share for child
under prenatal will (47 of 50 juris)
ii. CL: revokes will executed before marriage and death
1. Not incorporated in UPC
iii. Almost all states pertermitted child statutes, giving child not mentioned a
share of estate
C. Boundaries of a will
a. Doctrine of Integration of Wills
i. Whatever ages were executed as part of the will are part of the will. Those
that aren’t are not
ii. Rigsby: where second page listed items, not admitted bc it could have easily
been a working sheet listing assets as a prelim step to drafting
b. Can be ambiguous what sheets of paper comprise a will
i. To avoid litigation:
1. Take steps to develop evi that its a single doc by phys connecting
2. Linguistically connect the pages
a. Incomplete sentences that continue onto following pages
3. Have T initial every page
c. Two doctrines permitting extrinsic evi to resolve identities of persons or prop
i. (1) Doctrine of Incorporation by Reference
1. T refers to info not itself contained in the will
2. Allowed w/in certain limits
3. Policy problem: bc extrinsic info not witnessed, not present and
cannot be verified by Ws, need some evidentiary assurance of
authenticity and its finality
4. UPC (p. 310)
a. Writing: cannot incorporate a stmt by reference
i. In existence when will executed. Ensures finality
ii. If language of will manifests this
iii. Describes writing well enough to ID correct writing
b. May refer to written stmt or list to dispose of items of
tangible personal prop, not stocks/bonds or money
i. Signed, describe item w/ reasonable certainty
ii. May be referred to but may be performed before or
after the will
iii. Diff from Incorp by Ref – doesn’t req already-existing
1. Req’s signature

28
 c. Can define items of tangible prop but don’t limit VALUE of
tangible personal prop
i. If Greenhalge signed notebook, would be valid
ii. CA statute: incorporates monetary limit
1. No single item can be > 5k, all prop >25k
5. Legal but not a good idea. No reason not to incl in will itself
6. Greenhalge: Will, notebook entry giving painting to friend, codicils.
Codicils republished will so the notebook entry existed before will.
a. Writing, Sufficiently ID-ed, Prior
7. May provide for amendment through other means
a. Conditioned on certain acts
b. Rules vary depending on the act
i. Where no one has any power over it, always valid as
long as it doesn’t violate RAP
ii. Where under B’s power, so long as condition in
question doesn’t violate public policy
iii. Where depends on actions not over which no one has
control but over which T has control, mixed reactions
1. Permits doctrine of Acts of Indep Sig
ii. (2) Doctrine of Acts of Indep Significance
1. Permits extrinsic evi to ID Bs or prop passing under the will
2. If B or prop designations are ID-ed by acts/events that have lifetime
motive and significance apart from effect from will
a. Ex. buying a new car shortly before death
b. Compared to T’s will bequeathing to A all stock certs that T
ID-ed w/ A’s name
3. UPC 2-512. Events of Indep Significance
a. May dispose of prop by ref to acts or events but only those
that have significance apart from effect from disposition
made by will
4. Hirsch: troubling in a number of ways
a. Deep ambiguities in some instances
i. Speech acts – when are/aren’t they protected
ii. What if an act does something for T’s life and changes
estate plan?
1. Does the act of putting something in a safe
have significance for T’s life?
b. If you’re seeking to amend by act, ineffective. Only when
you’re not seeking to amend by act, it’s effective
c. Inconsistency about doctrine when we talk about rules of
revocation by act
d. Two other doctrines often confused w/ them
i. (3) Doctrine of Integration of Wills
1. Whatever pages intended to comprise will constitute a will
2. Keener: IN had no doctrine of integration so two pages with devisee
list and signature in addition to will and affidavit forms were invalid
ii. (4) Doctrine of Republication by Codicil
1. Whenever codicil executed, republishes original will
2. Intervening wills will be squeezed out (Will1, Will2, Codicil to Will1)

29
 3. Don’t have to update will to time of codicil if it thinks doing so will
defeat intent
a. Ex. gave A something and codicil witnessed by A. Updating is
superfluous and would take away A’s bequest
b. If there had been an intervening will, ct has no choice.
D. Contracts Relating to Wills
i. Person may enter contract to make a will or contract not to make a will
1. Contract law, not law of wills, applies
ii. If party dies leaving a will not complying w/ contract, will is probated but
other party gets remedy for contract violations
b. Contracts to Make a Will
i. Seems contradictory to be bound to make a gratuitous donative transfer
1. Better way to think of it: contract to make transfer at the
indeterminate time of someone’s death
ii. Depends fundamentally on contract law
1. Agreement?
2. Meeting of the minds?
3. Properly formal K?
4. How do we construe terms of K?
5. Consideration for K?
6. Reliance in lieu of consideration?
iii. What’s the remedy for breach of contract? Differs in 3 ways from ord Ks:
1. Under ordinary K law, B promised certain amounds, T failed to
provide so T breaching and B would be K creditor and would now
file claim in probate w/ other K creditors against T.
a. Not the case in most juris
2. When K in question not garden variety but contract to make will
where contracting party equitable
a. Either specific performance
b. Or equitable constructive trust
i. Party receiving funds in lieu is unjustly enriched by
T’s wrongdoing
iv. Ordinarily won’t make a diff and one remedy as good as the other
1. Can occasionally matter where SOL is diff
a. Cases have gone both ways where whether same SOL applies
to K creditors where K is to make a will where there is an
equitable remedy
b. CA: express statutory SOL uniquely for Ks to make wills: 1
year. Longer than traditional one for creditor nonclaim stats
v. Many states now subject Ks to Statute of Frauds provisions
1. Must be written
2. Even if not in compliance, party may be entitled to restitution of
value to D of services rendered
c. Contracts Not to Revoke a Will
i. Typically when H and W executed joint will or mutual wills
1. Joint will: one instrument executed by two persons as the will of
both (one will for two people)
a. Probated twice when each person dies
2. Mutual wills: separate wills of two or more people that contains
similar or reciprocal provisions

30
 ii. Initial problem is proof of K
1. For joint wills, may imply understanding or agreement and invite
claim of K inferred by will
2. Some cts find implied K from existence of common dispositive
scheme in mutually reciprocal wills
iii. Danger can be avoided by putting provision in every joint will that it was or
was not executed pursuant to K
iv. UPC 2-514. Contracts Concerning Succession
v. No implied contract merely by virtue of parallelism. Doesn’t serve as
predicate for implied agreement (Oursler)
E. Special feature of problem at issue arising in K to make Wills cases:
a. Rules of repudiation and mitigation
i. Ordinarily if one party repudiates on bargain, other party has to mitigate
1. For Ks to make wills, when one party fails to perform, mitigation
always deemed complete
2. Other party mitigates by making new will himself and mitigation
deemed complete irrespective of size of estates
b. Rules for formalizing Ks to make wills
i. Ordinarily K to make will if treated as garden variety would be valid by
parallel agreements as long as no real estate involved doesn’t’ come under
statute of frauds (20 juris)
ii. Majority of juris vary rules of formalizing K to make will from standard by
statute
1. UPC (p. 328) K to make will can be established only by provision in
will or express reference to K which could then be a parallel agreemt
a. Unlike incorp by ref, you can incorp parallel agreemts by ref
in will or by writing signed by T evidencing K w/o any ref in
will
b. Can either be ref but if will neither recites or refers, can only
be formalized by writing
c. Joint/mutual does not create presumption not to provide
iii. Hirsch: would go farther
1. Compare K to make will and garden variety
2. Least formality for garden variety, most for wills
3. Ks to make will which are hybrids fall in btwn
4. If you think about it, concerns that we have that prompt us to
elaborate formalities for execution of wills will prolly apply to Ks to
make wills as well
a. Ordinarily Ks performed quickly and parties present and
avail to testify. Wills on the other hand are often mature
years after executed and T will invariably be unavail to
testify.
b. Same true for K to make will. May be formalized/executed
years before it mature and at least one party wont be around
to testify. Arguably the rule for wills should apply for Ks to
make wills

CONSTRUCTION OF WILLS

Traditional Approach: No Extrinsic Evi, No Reformation

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A. Majority: two traditional rules barring admission of evi vary terms of will
a. Plain meaning (no extrinsic evi rule)
i. Extrinsic evi may be admitted to resolve some ambiguities but plain
meaning of will cannot be disturbed by evi that another meaning was
intended
b. No reformation rule
i. Reformation: equitable remedy which would correct mistaken term in will
to reflect what T intended will to say
ii. Compelled to interpret words T actually sued, not what T purported to have
intended
B. Two perspectives:
a. Trial attny litigating on behalf of B who seeks to construe will in her favor
i. B brings construction proceeding, not caveat proceeding, seeking to
establish not validity but meaning
ii. Need to learn rules of construction that apply to nail down meaning of will
b. Ex ante from perspective of attny scrivitor drafting a will
i. Dealing with T himself
ii. Attny scrivitor has diff agenda: L must understand rules of construction not
to apply in construction proceeding but to preclude issue from coming up.
iii. Preventative function: learn rules to avoid construction proceeding
C. Two types of linguistic ambiguity
a. Word ambiguity
i. Most obvious, everyday ambiguity
ii. How do we decipher words when T is no longer alive?
1. American rule: plain meaning
a. Cts forbidden to explore indiv idiolectic meaning of words
b. Exceptions:
i. To extend intrinsic evi suggests diff meaning, can
look to intrinsic evi (glossary in will to define words)
ii. Can consult extrinsic evi to establish what meaning of
word used to denote some person or thing
1. Nicknames or words under “Personal Use
Exception to Plain Meaning Rule”
iii. Wills made by L vs. Homemade
1. Cts don’t place too much emphasis on precise
language when not made by L
2. Use popular meaning
3. Consider L’s proficiency
c. Mahoney: will said heirs (aunt is sole heir at law) but T told
L said she wanted to leave it to her 25 cousins.
i. Extrinsic evi inadmissible bc plain meaning by statute
iii. Extrinsic evi admissible if words ambiguous or lack plain meaning
1. Patent ambiguities: appear on face of will
2. Latent ambiguities: manifests only when applied to T’s prop or
designated Bs. Two types:
a. Equivocation: Will clearly describes person/thing and two or
more persons or things exactly fit that description
i. Allows extrinsic evi bc it makes it more specific w/o
actually adding to will’s terms
ii. Direct expressions of T’s intent admissible

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 iii. Personal usage exception
1. If extrinsic evi shows that T always referred
to a person in an idiosyncratic manner, evi
admissible to show T meant someone other
than person w/ legal name of legatee
b. No person or thing fits description but two+ fit partially
iv. Bowles: “all personal prop to daughter, all the rest of prop, real, personal or
mixed, to X and Y”
1. Personal prop: use plain meaning in Black’s
v. Avoiding plain meaning:
1. Intrinsic evi of context
a. Look at word in relation to other words around it to establish
meaning [“noscitur a socii”: words take meaning by company
they keep]
b. Time ambiguity
i. Even a will that was clear when initially executed may grow to become
unclear over time
ii. Invariably, hiatus btwn time will executed and when it ultimately matures
iii. Basic rule: all else equal, cts do not consider changed circums when
construing a will
1. Obligation of T to amend accordingly
2. Originalism prevails in will construction
iv. Exceptions:
1. Slayers
2. Divorce
3. Marriage
4. Childbirth
5. When circumstances make it impossible
a. B predeceases T
v. Lawmakers don’t allow extrinsic evi but create mechanical rules of
construction to clarify intent hoping it corresponds w/ intent in most cases
vi. Treated by doctrine of Lapse
1. Law: all else beign equal, send bequeathed funds from predeceasing
B to residuary B
2. Person who is to receive “all the rest” more likely what T wanted
people to receive
vii. Exceptions to that principle established by antilapse statute
D. Antilapse Statutes
a. If predeceasing B falls w/in proscribed category under antilapse statute and leaves
descendants, descendants take in lieu of B, not residuary legatee
b. Two-step process for analyzing its application
i. (1) Does predeceasing B fall w/in purview of the statute?
1. If no, antilapse statute fails to apply and A’s lapsed bequest will go to
residuary legatee despite fact that A left descendants
ii. (2) If yes, Has A, predeceasing, left surviving descendants. If yes,
descendants take in A’s place
c. UPC: if B who is grandparent or lineal descendant of grand parent of T is dead at
execution of will, issue of deceased B, taking place of deceased B
i. All blood relatives out to the second collateral line
d. Variation in how broadly doctrine applies

33
 i. UPC: close blood relatives but not others
1. Reasonable to conclude relative Bs are objects of T’s bounty and
protection. Strangers and nonrelatives would be unrealistic
2. Natural to expect relationship w/ children of blood relatives, not EEs
ii. Revised UPC:
1. Doesn’t cover spouse, but covers stepchildren
e. What if residuary B predeceases?
i. Lapse sends it to intestate heirs
ii. Antilapse sends it to residuary B’s descendants
f. If T has multiple residuary Bs
i. Traditional rule: No Residue Upon Residue Rule (8 juris)
1. Fraction of residue bequeathed to predeceasing B’s heirs, not
surviving B
ii. Modern majority rule: Remain in the Residue Rule (41 juris, 37 by stat, 4
case law)
1. Any partial fraction going to residual B not saved by antilapse will go
proportionally to surviving residuary legatees
2. Likely that all residuary Bs were primary Bs so more likely T would
want funds to go to them
a. Strength of arg may depend on how fractions break down
E. How to avoid ambiguities
a. Will checkups:
i. Recommend C come in for regular checkups and make codicils as necessary
ii. Expressly allowed under canons of ethics
b. Anticipate the contingency
i. Anticipate possibility that B will predecease
ii. Ask T for alt estate plans in each situation
c. Dangers in Anticipating Contingencies
i. Have to make sure you anticipate them all. If you miss one, that the one that
will happen
F. Presumed Intent
a. For certain predeceasing Bs, T would prefer substitute give to B’s descendants than
for gift to lapse
G. Words of Survivorship
a. UPC 2-603(b)(3): Words of survivorship, such as in a devise to indiv 'if he survives
me' or in a devise to 'my surviving children' are not, in the absence of addt'l evi
sufficient indication of intent contrary to application of this section
i. Ex. T: house to S if S survives and residue to W. S dies, leaving D.
1. Intent that antilapse does not apply and D should not sub S.
2. “if he survives me” is insufficient for contrary intent and applies
antilapse statute
a. Equally plausible inferences for either intent
3. Rest 3d of Prop: Wills and Other Donative Transfers Sec. 5.5 cmt. h:
a. Most language is boilerplate and people don’t understand
that they could disinherit a line of people
b. When T is older than B, doesn’t expect devisee to die first or
if devisee was childless at the time
c. Trier of fact should be reluctant to find language sufficient
H. Overarching Questions:
a. Why are we following mechanical rules here?

34
 b. Why do we distinguish time from word ambiguities? Why don’t we treat them all as
ambiguous and simply admit extrinsic evi as we would in cases of latent ambig?
c. Much iffier when we face time ambig to divine what T intended
i. Word ambig: just trying to figure out intention from poorly chosen word
ii. Time ambig: T didn’t say anything about this; failed to consider and now
trying to figure out what T would have wanted if anticipated
1. Thus, treated under mechanical rules

Simultaneous death
A. Original Uniform Simultaneous Death Act:
a. If no sufficient evi of order of deaths, B deemed predeceased. Neither inherits
b. If joint tenants die, prop distributed half to each
c. Life ins: distributed as if insured survived B
B. British Rule: if one cannot determine order of deaths, deaths presumed to occur in order of
seniority (old people predecease)
C. Arises more often than intestacy bc usu instruments req B survive T by stated period of
time (often 30-60 days)
D. Typically involving H&Ws bc they travel together
E. Survivorship is a fact which must be proved by preponderance of evi by part whose claim
depends on survivorship (Janus – H&W took Tylenol w/ cyanide, H died and W on life
support for two days)
a. Policy Q: what possible diff would it make to T if wife died a moment before, same
time, or moment after he did?
i. From his perspective, would not have made any diff bc she would not have
had the opp to spend the money
ii. As scientific means of forensic analysis, becomes possible to reconstruct
times of death, thereby rendering that more likely than not, order of deaths
will not be simultaneous
iii. under more modern version, provision to treat b as having lapsed even if B
died after, treated as having predeceased
1. must die w/in 5 days of T
2. only in 11 juris
3. not CA
iv. can write in req to survive T for certain number of days in will
F. 120 Hour Rule:
a. UPC 2-140 and 2-702: heir or devisee of life ins beneficiary who fails to survive by
120 hrs deemed predeceased
i. USDA amended in 1991 to make same provision by c&c evi
ii. Addresses contemporaneous deaths even if it does not come from same
disaster

Changes in Prop After Execution of Will

A. Ademption by Extinction
a. Ex. T gives X to J. T sells X and uses money to buy Y. Gift adeemed and J has no claim
to Y.
b. Applies only to specific devises
i. Specific item of T’s prop
ii. Does not apply to general, demonstrative o residuary devises
1. General: when T intends to confer general benefit, not particular
asset

35
 a. Ex. 100k to A. If not enough $, must sell to get the $
2. Demonstrative: general devise, yet payable from specific source
a. Ex. 100k to be paid from proceeds from stock. If T owns
sufficient stock, must sell. If not, devise not adeemed. Other
prop must be sold to raise money
3. Residuary: conveys portion of T’s estate not otherwise effectively
devised by other parts of will, such as devise to A of “all rest, residue
and remainder of prop and estate”
iii. Harris: left house at specific address to A. Since T bought a diff house, the
bequeathed house is not still there so adeemed. Since she had no heirs,
house went to state. Doesn’t matter if it’s against T’s intent.
1. Ademption is a conclusion of law w/o regard to T.
c. Identity Theory of Ademption
i. If specifically devised item no in T’s estate, gift extinguished
d. Intent Theory of Ademption
i. If specifically devised item is not in T's estate, beneficiary may nonetheless
be entitled to replacement for, or cash value of, original item, depending on
whether beneficiary can show this is what T would have wanted
e. NOTE: Doctrine of Indep Significance only applies where will specifies acts that alter
the will
i. I leave A whatever car I own at death or if no car, nothing.
B. Performing the Analysis:
a. Is it specific or general?
i. If general: does not apply bc they can be paid out from another fund
ii. If specific: proceed
b. Is prop or any part of prop still there?
i. If there: they get what’s there
ii. If not: B gets nothing
C. Effort to Amend Doctrine
a. Minority of juris have abandoned ademption in favor of assumption of non-
ademption (CA)
i. Assumption T doesn’t intend prop to adeem – can intro evi as to T’s intent
b. Majority: leave ademption in place and car exceptions
i. Common exceptions:
1. UPC 2-606. Nonademption of Specific Devises; Unpaid Proceeds
of Sale, Condemnation, or Insurance; Sale by Conservator or
Agent
a. They don’t codify ademption, merely state instances where
prop does not – leaving rm for cts to add addt’l exceptions or
override doctrine completely
b. CA: equivalent provision
i. Wanted to make clear wasn’t overriding body of case
law
c. Any unpaid proceeds as of time of death as for sale or
conversion of specifically bequeathed prop go to named B
i. Ex. real estate to A and sold to T close in time to
death so proceeds close to death. Proceeds to A
d. Minority: B will receive replacement prop
i. Produces litigation over whether subsequently
acquired prop is replacement prop

36
 e. Subject to guardianship or gave agent durable power of
authority
i. Prop converted during that period of time, it doesn’t
adeem
ii. Common exception found by statute
c. Doctrine of Accessions of Property
i. When prop gets more prop
ii. Given that prop tends to increase in price over time or you get dividends for
interest over time, when do we value bequest?
iii. Construction principle that applies:
1. CL maxim: “a will speaks at death”
a. Doesn’t’ matter when will executed, applicable at death
iv. Complicated when T bequeathing stock and stock splits
1. Usu not adeemed – merely a change in form
2. Modern rule:
a. At least for specific bequests of stocks, Bs receive benefit of
any splits that occur after will execution.
3. Less clear for general bequests of stocks, but haven’t had that
problem bc rare to bequest stock you don’t own.
4. UPC:
a. Leaves general bequests to CL
b. If T owns shares, B receives all split shares occurring during
hiatus and any securities received as a result of
merger/acquisition
c. If cash is part of the deal, doesn’t become part of bequest.
d. Any shares acquired after will executed from stock purchase
program changes proportionality of shares where others are
receiving dividends. Go to B.
5. Making specific bequests of stock is generally not recommended.
D. Exoneration of Liens
a. Interaction of bequests and debt
b. Creditors must be first before Bs (debt senior to equity)
c. CL: any lien satisfied from residue, assuming there’s enough
i. Britain abolished that by statute
ii. US states followed suit
1. Assumption that most T’s probably wouldn’t intend that result
E. Abatement
a. Unsecured Creditors
i. Before Bs can take so debts not tiedt o particular asset
b. Sets order of priority for which bequests are abated first and last (varies)
i. UPC:
1. Residue
2. General bequests pro rata
3. Specific bequests pro rata
Problems:
o Ex. T bequeaths ring to A ($10k), car to B ($20k), $10k to C, $20k to D, residue to E. Estate
contains the ring, car and $60k in cash. All else being equal, who gets what?
o No ademption will occur w/ ring or car through extinction.
o Residuary legatee: $30k

37
 o If general creditors claims = $15k.
 GET IT FROM RESIDUE. So E will get $15k
 Everyone else will be paid in full
o If general creditors claims were $30k , residuary would get 0
o If it was $45k, we would only have 15k in cash to pay to beneficiaries from the original
69k
 We get it next from the general beneficiaries. Specific beneficiaries abate last
 We have 30k in bequests and 15k to distribute, but will have to abate each by
half to get the amount you need.
 C: $5k, D: $10k
o If it was $60k, everyone would get $0 but A and B would get the ring and the car
o If the claims added up to $75k
 Will need to liquidate the ring and car to make up what they need
 A: $5k, B: $10k
 What if A wants the ring for sentimental value? A can pay executor $5k for it
and keep the ring.
o If creditors claims add up to $100k, estate was only worth 90k in total, incl. the car and
ring.
 Estate is insolvent so beneficiaries take 0.
 If A wants that ring, will have to pay its full value to estate in order to get it.
c. UPC 3-902: Wrinkle in UPC found in some states:
i. If ct concludes by virtue of estate plan and extrinsic evi that order of priority
is contrary to estate plan, allowed to vary

GIFTS

Gifts of Personal Prop

A. Given while living – more common than bequeathing
a. Tax advantages
b. Social reasons
c. Danger: overdoing it so you’re destitute
B. Formalizing gift
a. Distinction btwn gifts of real and personal prop
i. Livery of season: owner of land would deliver earth form land to donee
ii. Deed of gift: signed writing which must be delivered to donee
b. Statute of frauds: does not apply to gifts
i. Personal prop reqs:
1. Animus donandi: Intent to make gift
2. Delivery of gift corpus to donee
a. Policy reason for gift req: wills have formal, witnessed
ceremonies, but gifts dispense of that
i. Act clarifies intent
3. If you have one without the other, no gift
C. Delivery Requirement
a. Usu manual delivery (handing gift itself to done)
b. Two other forms permissible if and only if manual delivery impossible/impractical
i. Symbolic delivery
1. Delivery of written statement describing the gift

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 2. Promise for the future is not symbolic. Must be in present tense
making a gift.
a. “I hereby give you this watch”
3. Model of a car you’re gifting is symbolic
ii. Constructive delivery
1. Something symbolizing access – typically a key
2. Doesn’t have to be tangible
iii. Traditionally allowed only when impractical/impossible
1. Could be nature of gift itself
2. Rest 2d of Prop: restriction of constructive/symbolic to where
impossible/impractical should be abolished
a. Even before 1983, many cts abandoned restriction
c. Recurring issue that creates most litigation:
i. Whether gift sufficiently delivered when it occurs indirectly
ii. Baugh: delivery made to third party intermediary at which pt legitimacy
depended on who 3rd party is or who it reps.
1. If agent of donee, that’s fine, but if agent of donor, no. Merely
extension of himself.
2. Putting 5k w/ direction to deposit and care for it but giving further
directions and Bs weren’t even aware of arrangement.
iii. Postal service: (CA) even if private carrier, delivery complete bc donor
intends a present transfer even if under T’s ctrl (Hoffman-LaRoche)
D. Gift checks
a. A hands B a check for bday. What happens if A dies before the cashing?
b. Bank serves as intermediary and universal rule: gift checks incomplete til cashed
c. Donor hasn’t done everything they could like mailing letter
i. Don’t have to give them a check, could give cash, cashier’s check
ii. You can still cancel payment on checks

Limitations on Rt to Make/Structure Gift

A. Cannot be made while donor insolvent
a. Cannot make gifts rendering donor more judgment-proof
B. Proceeds of crim activity: can gift it, but it’s a crime
C. Pre-gifting: cannot gift prop you don’t own yet
D. Revocable gifts: not allowed
a. Ex. making gift but reserving rt to recover whenever
b. Exception: gifts causa mortis are exception to garden variety gifts made revocable
E. Conditional gifts: allowed
a. As long as condition does not violate public policy
b. At the time when people deliver the gift, donor states condition
F. Gift condition implicit – you don’t have to say anything
a. Donor need not cite condition
b. Two conditions:
i. Wedding presents
ii. Anti-nuptual gifts
1. Engagement gifts
a. CL: if donor gives engagement ring, need not say a thing, but
gift conditioned on going fwd w/ wedding
i. If donor breaks, donee can keep
c. Nature of condition implicit in cases varies by state

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 i. Traditional CL rule: donee breaks engagement
ii. Modern rule just wants to see condition occur, anyone can break
iii. Where engagement broken not by party’s decision but death
1. CA: fault based: is one who dies the one who breaks engagement?
2. Donee dies: all cases death was not her fault so did not qualify as
breaking the engagement
G. Ademption by Extinction and Gifts
a. Doesn’t apply here bc it’s a general bequest, not specific
H. CL Ademption by Satisfaction
a. Evi of T’s declarations contemporaneous w/ delivery of gift admissible to establish
whether T intends gift to supplement or satisfy a bequest
i. Absent declaration, ct assumes gift supplements bequest unless:
1. Gift to child of T, if T also has other kids and also
2. Gift substantial and extraordinary
b. UPC 2-609. Ademption by Satisfaction
i. Contemporaneous declaration must be made in writing
ii. Either donor must place declaration in writing or done must subsequently
acknowledge that declaration, whether in writing or orally, was made
c. There is never any presumption to adeem by satisfaction
d. Justification: most inter vivos transfers intended to be absolute gifts or are carefully
integrated into total estate plan
I. Doctrine of Advancement
a. Gifts made during lifetime of intestate person
b. UPC req’s writing
c. All the rules are the same but diff name for the doctrine

Gifts Causa Mortis

A. Where transfer made almost at moment of death
B. Treated exactly the same as an ordinary gift
a. Exception: implicitly revocable
C. All doctrines of ordinary gifts are applicable to gifts causa mortis
a. Suicide note left w/ 14k check was sufficient constructive delivery bc he had access
to the apt (Scherer) (note: couldn’t probate bc holographic wills weren’t allowed)
D. To comprise a gift causa mortis, must truly be an extremist
E. Virtually every ct has held that suicide is NOT a circumstance that qualifies for causa mortis

TRUSTS

Background
A. Trustee manages prop as fiduciary for 1+ Bs
a. Trustee holds legal title and can sell prop and replace w/ prop trustee thinks is
more desirable
b. B holds equitable title and is entitled to payments from trust income and sometimes
from trust corpus
c. Settlor: donor
i. If settler + trustee = one-party trust
ii. If settler + B = self-settled trust
B. Differs from agency:
a. Donor still in possession of everything but puts in agent’s hands
b. Transfer incompletely if merely to agent and agent does S’s bidding

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C. Trust by Contrast
a. Trustee acts independently from S
b. Follows initial instructions but thereafter cannot be ordered about by S
c. Transfer occurred & power no longer in S’s hands. Now divided btwn trustee and B
i. Trustee: actual title
ii. B: equitable title
D. No jury in equity or trust matters – both arise from equity cts
a. Trustee can be sued in equity for CoA – breach of trust by B
E. Since trustee acts independently, doesn’t matter if S is dead or not
a. Can continue after death and even come into existence upon S’s death
b. Can be created under wills, unlike agency
c. Breach of trust can be brought under two grounds:
i. Trustee failed to carry out instructions in good faith
ii. Trustee breached fiduciary duty
1. Invest trust prop (res/corpus) prudently
a. Uniform Prudent Investor Act:
i. Investments judged on portfolio as a whole
ii. Diversification: trustee must diversify to avoid
specific risk
iii. Under UPIA, S can waive diversification req & if
terms vary from prudence req, trust instrument
controls
2. Duty against self dealing
a. Ex. trustee was corp fiduciary (bank) invested trust in non-
interest bearing acct known to be self dealing
3. No comingling
4. Keep accurate accts
5. Cannot delegate duties to third party
a. UPIA supercedes and allows delegation and investment in
money market funds and other funds that are managed by
someone else
6. Duty of impartiality of 1+ beneficiary
F. Express Trusts
a. Created in gratuitous transfers
b. Created at death
G. Other types of trusts:
a. Constructive trust
i. Used to prevent unjust enrichment of wrongdoers
b. Resulting trust
i. When attempted trust fails for some reason
c. Corporate law:
i. Business trusts
ii. Pension plans
1. Must take the trust forms under ERISA
d. Securities Law
i. Investment trusts
1. Managed funds take the trust form typically
e. Tort law:
i. Court-created trust

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 1. If tort victim is a minor or incapacited person, ct has discretion to
create trust fund composed of liability
f. Public affairs:
i. Blind trusts
1. Preempts conflicts of interest for public officials
2. Req’d under Ethics of Gov’t Act
3. Trusts serve w/in confines of Admin law
g. Private trusts
i. Created gratuitously for benefit of indiv Bs
ii. 5 common uses of trusts in estate planning:
1. Revocable trusts
2. Testamentary marital trusts
a. Deduction for prop given to surviving spouse
b. Ex. H to X in trust to pay income to W for life, then principal
to H's children.
i. No estate taxes at H's death. Useful if W needs money
and is stepparent and she might not bequeath to
them if left alone
3. Trusts for incompetent persons
a. Ex. O's son A is mentally/physically impaired and cannot
manage prop.
i. O transfers to X in trust to support A for life,
remainder to A's descendants. If A dies w/o
descendants, to B.
4. Trusts for minors
a. Fed gift tax law allows tax-free gifts of 13k/year/done
b. Minor legally unable to manage prop
c. Ex. O creates trust to use income and principal for benefit of
A before 21. then principal to A at age 21. Every year O can
make gift to trustee for A.
5. Discretionary trusts
a. Lessens tax burdens on family wealth by distributing income
to members in lowest tax brackets
b. Prevents creditors from reaching trust prop
c. Flexibility to account for changing circumstances
d. Ex. T devises to X in trust giving X discretion to any amount
of income or principal to A or for A's benefit
H. Where do we find trust law?
a. Will be a mix of judicial doctrine and statutory doctrines (not CL)
b. Many juris have separate trust code and UTC
c. Rest 3d of Trusts establishes model judicial trust doctrines that a ct may or may not
decide to follow

Steps to Effectively Make an Express Trust

A. 5 Basic Universal Reqs
a. S must intend to create a trust
b. S must set out terms of trust acceding to whatever are the requisite legal formalities
i. Depends on whether trust created inter vivos or under will
1. If S surrenders title to trustee, S need not be alive when trust carries
out functions

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 2. Can be created at death of S/T in which case would be made under
will and would comply w/ formalities of statute of Wills
3. If inter vivos, doesn’t need to meet Statute of Wills, only Statute of
Frauds
a. If real prop: need signed writing and refer to deed of trust
b. If no real prop: all you need is oral declaration of trust
c. Some existing trust corpus
i. Some existing prop corpus transferred into the trust
ii. Just like a gift cannot be made of prop that doesn’t exist, same w/ trust
d. S must deliver corpus to trustee
i. Exception: trust in question is one-party trust – doesn’t req delivery to self
ii. Implications: suppose one party trust and not formalized. Gets around
delivery & formality. However, duty not to comingle and behave like trustee.
e. Must be some discrete beneficiaries or other parties to enforce terms of trust
against trustee

Why do People Create Trusts

A. Potentially ensures professional management of corpus
a. Ex. preventing irresponsible descendants from frittering money away
b. You can choose trustee carefully to ensure good management
B. Can be used to enhance dominion over trust prop
a. Specifying terms of trust, S can ctrl how money spent, what it is spent on, ensuring
that it’s spent only for things S approves of
C. Enhance estate planning flexibility
a. Give discretion to make distributions and not just fixing them in stone
D. Can be used as vehicles to achieve various discrete estate planning objectives
a. Avoid creditor claims
b. Accomplish purposes rather than provide for indiv Bs
c. Helpful vehicles for future interests
d. Avoid probate
i. Certain trusts act as will substitutes
E. Protection against creditor claims
F. Protection against proclivities to overspend

Individual vs. Corporate Trustee

A. Two patterns:
a. Individual trustee:
i. Agrees to serve out of sense of friendship/moral obligation, not for fee
ii. Usu cheaper than corp trustee
iii. Strong sense of S’s wishes
iv. May be inexperienced, old, die
v. May excel at distribution, but weak at administration
b. Corp trustee
i. Bank, trust company
ii. Recovery of damages likely in breach bc banks have $$
iii. Safeguards from institutional bureaucracy
iv. Cost = higher fees
v. Sometimes unresponsive and inflexible
B. Trust protector:
a. Common method of fragmenting trusteeship

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 b. Given specific powers
C. Directed trust:
a. Trustee responsible for admin but must follow 3rd party direction
D. Private trust company
a. Formed specifically to serve as trustee of 1+ trusts created by single family
b. Can consolidate functions of trusteeship

Creation of a Trust
A. (1) Intent
a. Did grantor manifest intention to create trust relationship
b. Transfer of prop to indiv to hold for use & benefit of another is intent to create trust
c. Trust can continue following death of S
i. Trustee operates indep from S, unlike principal/agent relationship
d. Transferor’s intent determines the relationship which exists in the case
i. If T intends subsequent instructions => principal/agent relationship
ii. If T wants trustee to act separately => transferor/transferee relationship
iii. IREO Fournier: T told X to hold money for children
1. Not a gift bc no animus donandi.
2. Ct interpreted it as a trustee relationship bc testimony was not
instruction.
3. Hirsch: seems to be acknowledging continuing dominion which
suggests agency relationship nd that Ct got it wrong.
B. (2) Existing Corpus
a. Cannot pre-gift/create trust in prop that doesn’t exist
b. Unthank: T wrote letter promising income stream to X hoping to bind estate to
continue payments for 5 years.
i. X wanted to admit to probate as a holographic codicil
ii. Failed bc no present corpus – doesn’t say what it is, just promises $
iii. If there’s no ID-ed corpus, it doesn’t exist
c. Future stock profits cannot constitute present corpus (Brainard)
i. Diff policy interest in this case bc attempting to avoid taxes
d. Trust for rts and future profits from musical of Pygmalion allowed (Speelman)
i. Policy issue: Not a tax case
e. Rest 3d of Trusts:
i. By all traditional and current concepts of prop, expectancies are not prop
interests
ii. Hirsch: who cares? That’s not a policy, that’s a truism. What is the
justification for it? The only one he can think of is that we don’t want people
to give away stuff until they have it bc they may regret it
C. (3) Formalized
a. Inter-vivos transfer is not a problem. Trusts in personal prop can do it orally but
most people don’t elect that right
b. Not true for trusts created at death
i. Must comply w/ Statute of Wills
ii. Will fail if not properly formalized
c. Special problem: where will is properly formalized but where terms of trust are not
set out in it
D. Resulting Trusts
a. Equitable reversionary interest that arises by operation of law in two situations:
i. Express trust fails or makes an incomplete disposition

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 ii. One person pays purchase price for prop and causes title to prop to be taken
in name of another person who is not natural object of bounty of purchaser
b. Ex. T to X to pay income to A and upon death to A’s descendants. A dies w/o
descendants so X holds remainder for O’s heirs / devisees

Semi-secret / Secret Trusts

A. Semi-secret trust:
a. Intent to create a trust specified, but the terms are not
b. Olliffe: T made bequest of residue under will, properly formalized, to another
reverend to distribute “in such a manner as in his discretion is best calculated to
carry out the wishes I have/may express to him”
c. Do not give effect to terms as equitable trust bc no unjust enrichment involved
i. Resulting trust gives to entire residuary Bs or heirs
ii. CA rejected Olliffe and followed preexisting English rule
B. Secret trusts:
a. If we exclude extrinsic evi, reverend would get to keep money, resulting in unjust
enrichment
b. Must be an open secret
i. Ex. if it just says to Rev and nothing more and discussion about how he was
bound to use prop came in private convo
1. If that’s the case, he will take it and no one will know and either he
will use it as instructed or not
C. Restatement: argues that English rule is the better result
a. More formality for semi-secret than secret trusts cases, yet only in secret trust cases
do we give execution to intent
D. Compared to Incorporation by Reference
a. IF T by will does not leave prop to someone else w/ instructions beyond will but
simply refers to instructions beyond the will
b. Only if there after, in writing, and express reference to the will
i. Oddly, secret trust doctrine waives each of those reqs
c. If there is a reference in the will that there is a trust, American rule says ineffective
i. Only where there’s no reference is it valid – BIZARRE RULE
E. Precatory instructions
a. T intended an outright bequest and these were precatory and not binding

Estate Planning Uses for Trusts

A. Trusts can be used to enhance power by narrowing ways in which gratuitous transfer can
be spent by B
B. S can insist it be spent in a way that S approves (rent, housing expenses)
C. Hirsch: doesn’t know if it’s a good idea.
a. People’s first reaction will be to restrict it, but difficult to predict what future needs
are going to arise (paying for school while you’re starving)
D. Discretionary trusts
a. Trustee still has fid duties to perform. Must exercise in good faith/ impartially
b. Almost impossible to carry out exactly what parent would have in mind:
i. Agency costs:
1. Trustee not having proprietary interest has incentive to either shirk
or steal
2. Trustee’s interests are not contiguous w/ S
ii. Information costs:

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 1. T won’t know everything parent knew
2. Tacit knowledge: can’t communicate everything you know about
complex things

Rights of Beneficiary to Distributions

A. Creditors can’t take money directly from trust
a. The easier it is for a b to obtain a mod o termination of trust, the more trust prop
looks like B’s own prop – stronger case for creditors
B. Two types:
a. Mandatory trusts:
i. Trustee makes specified distributions to an ID-ed B
ii. O to X in trust to distribute income to A. X has no discretion to choose person
to receive or amount to be distributed
b. Discretionary trusts
i. Trustee has discretion over distribution. Limitless varieties
1. Spray trusts
a. O to X in trust to distribute all income to one of three parties
b. Must distribute all income currently
2. Sprinkle trusts
a. Trustee authorized to accumulate income and add it to
principal
3. Support trust
a. Trustee’s discretion subject to standard of review
i. Ex. only make distribution as necessary for B’s
support and maintenance
ii. S can postpone and delegate trustee decisions re: whom/what/when
amounts to distribute
1. Wise bc S can’t know all changes that will occur over time
iii. Fiduciary obligation
1. Controls trustee’s power over trust
C. Pitfalls of using a trust company as trustee particularly when discretionary
a. While you get professionalism, continuity and insulation from family, lacks TLC
b. Solution: co-trustees incl both family and company to divide duties

Rights of the Beneficiary’s Creditors

A. Spendthrift and discretionary trusts provide means of making prop avail to B but not B’s
creditors
B. Discretionary trusts:
a. Traditional law: two discretionary trusts:
i. Pure discretionary trust
1. Trustee has absolute, sole discretion over distributions to B
2. Creditor of B has no recourse against interest
a. Bc B has no rt to compel, neither can C
3. Language: “Trustee in its absolute discretion to make distributions”
ii. Support trust
1. Trustee obligated to make distributions as necessary for B’s needs
a. Obligation to make distributions only for support
2. Creditors other than support creditors won’t be able to reach
3. Key characteristic of both discretionary and support trusts is
variable distribution

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 a. Amount B gets will vary as trustee exercises discretion or as
B req’s support and Trustee acknowledges
4. Language: “trustee shall make distributions as needed for support”
5. It is only support trust if it has variability of distribution
b. Discretionary support trust
i. Not formally recognized as sep category under tradt’l law, but common in
practice
ii. Cts tend to treat like pure discretionary trust foreclosing creditor claims
c. To avoid litigation, should say whether B’s personal circumstances should be taken
into consideration by trustee
i. Absent language, traditional support trusts make B’s indiv circumstances
irrelevant and trustee provides support at limit specified
ii. Discretionary: opposite – circumstances relevant to determination
iii. Hybrid discretionary support: unclear
d. Cs may be entitled to ct order directing trustees to may Cs before making
distributions to B
i. Can deprive even though you won’t necessarily be paid
ii. Acts that constitute exercise of discretion:
1. Crediting B’s acct on trustee’s books
2. Making oral or written declaration
e. Rest 3d of Trusts and UTC
i. Collapse distinction btwn discretionary and support trusts
ii. Finds that lines are difficult to draw given wide variation in terms of trust
iii. Cts will only interfere to prevent abuse
iv. Rest 3d of Trusts, Sec. 60:
1. If B receives distributions in trustee’s discretion, transferor or
creditor entitled to receive or attach any distributions
v. UTC Sec. 504:
1. Abolishes distinction btwn discretionary and support
2. Treats them all the same and splits the diff
3. If trust instrument fails to specify whether B’s own resources are
relevant, Trustee has discretion of whether or not to take it into acct
f. Two other ways to deal w/ prodigal child:
i. Forfeiture restraint trust (protective trusts)
ii. Disabling restraint trust (spendthrift trusts)

Protective Trusts
A. T directed o pay income to A but if A’s creditors attach A’s interest, A’s mandatory income
interest automatically changed to discretionary interest
a. Trustee has discretion to apply income for A’s benefit and creditors cannot demand
any part of it
b. Transforms into something else, either to another B or to discretionary trust
i. Two potential schemes:
1. One that would normally apply and one that would apply if Cs
attempt to get interest

Spendthrift Trusts
A. One single invariable stream of money
a. Fixed income stream that doesn’t vary w/ B’s changing circumstances
B. Limits on effectiveness that vary from state to state

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 a. All juris: once trustee makes req’d payment of income to B, creditors can reach it
i. No continuing garnishment after distribution
ii. Creditors have to find money before B spends it
b. Limit impose on total value of spendthrift trust
i. Amount of the trust
ii. Above that, can levy execution against trust
c. Fractional limitation on distributions creditors can reach
i. CA:
1. In discretion as ct deems fair and equitable can allow continuing
garnishment against up to 25% of income, rendering spendthrift
trust equiv to wage garnishment law
2. Permit continuing garnishment if deems equitable above amt ct
deems necessary for education and support
d. Further exception for distinct types of creditors
i. Can either reach directly or continuing garnishment
ii. CA: alimony and child support
1. Gov’t claims for prior support
2. Restitution claims for felony
3. In each case, ct has discretion to decide how much of those claims
should be covered by continuing garnishment
e. Rest 3d says ct should be allowed to establish new exceptions judicially
i. At this pt, no ct has allowed
C. Textualist approach common esp in wills cases
a. Tort victims could not get money from spendthrift trust bc statute does not
delineate tort victims (Scheffel)
i. Overturned in a later year
D. Self-settled spendthrift trust:
a. Allowed in 3 states as long as it doesn’t render S insolvent

Future interests
A. Trusts are useful tools as vehicles for future interests
a. Place future interest in trust and trustee has duty to Bs
i. If S has Bs he doesn’t’ trust to make good judgments, situation is to use
future interest. They can’t bequest life interest. Remainderman chosen by S
b. Amount B gets varies depending on how long they live and varies w/ living needs
B. Bequeath to future generations
a. Benefactor cannot bequeath to someone already dead but can bequeath to someone
not yet born bc they WILL need money when born, even if they don’t now
C. Delay inheritance by a minor child
a. Ensures money will be well spent not misspent
D. Limitations on Effectiveness of Future Interests
a. Cannot create far future interests in many states
i. Classic limit: RAP
1. Technically doesn’t limit duration, but limits continuity of
contingencies
a. Contingencies must be resolved w/in RAP period
b. Indirectly limits time period
E. UTC Sec. 503. Exceptions to Spendthrift Provision
a. Provision unenforceable against:
i. Spouse, child, former spouse w/ judgment or ct order for support

48
 ii. Judgment creditor who provided svcs for protection of B’s interest in the
trust
iii. State or US claim to extent a statute or state or fed law provides
b. May obtain ct order attaching present or future distributions to/for benefit of B. Ct
may limit award as appropriate
F. Exceptions for certain classes of creditors
a. Children and spouses:
i. Rest 3d of Trusts Sec. 59, UTC Sec. 503(b)(1):
1. Majority of states allow judgment for child/spousal support enforced
against debtor's interest
ii. Minority: neither allowed
b. Tort victims:
i. Trend against recovery
ii. Sligh v. Sligh:
1. Tort creditor could enforce judgment against interest in spendthrift
trust or discretionary trust
iii. Family Trust Preservation Act:
1. Reversed Sligh and exempted spendthrift trusts from tort creditors
iv. UTC Sec. 503:
1. No exception for tort creditors -- deliberate omission
v. Rest 3d of Trusts Sec. 59:
1. No recognized exception but comment (a)(2) contemplates evolving
policy for other exceptions
c. Furnishing necessary support
i. Traditional rule:
1. Person who furnished B with necessary services and support can
reach the interest in spendthrift
ii. Rest 3d of Trusts Sec. 59(b): agrees w/ traditional rule
iii. UTC Sec. 503: disagrees
1. Most cases involve claims by gov't entities, which are better handled
by enactment of special legis
d. Federal tax lien
i. US can reach B's interest to satisfy tax claim against B
ii. Fed tax law trumps state spendthrift trust rules
iii. Whether a state can do the same depends on state rules:
1. UTC 503(b)(3) and Rest 3d of Trusts Sec. 59 cmt. a(1) are in accord
w/ respect to both fed and state tax claims
e. Excess over amount needed for support
i. NY: creditors can reach part in excess of amount needed for support and
education
1. Copied by other states
ii. Station-in-life rule:
1. Rule in determining what is necessary for the support of the
beneficiary and what is excess
2. Rendered excess income statutes relatively useless to creditors of
beneficiaries who are accustomed to luxury
f. Percentage levy, spendthrift caps
i. Several states:
1. Creditor permitted to reach certain percentage (10-30) of trust
income of spendthrift trust beneficiary in garnishment proceeding

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 ii. Other states:
1. Cap amount of income or principal shielded by spendthrift
G. Pension trusts
a. ERISA reqs pension plans covered may not be assigned or alienated
i. Benefits can be reached for child support, alimony or marital prop rts
ii. EE's future retirement security should be protected even at the expense of
current non-fam creditors
b. Traditional law:
i. S's creditors entitled to recover as much trust prop as trustee could pay S.

Purpose Trust
A. Can’t bequeath to a purpose – isn’t a person so no one to accept money
a. CAN bequeath to trustee to further accomplish stated purpose and trustee is
charged w/ spending funds to carry out that purpose
B. Treated diff depending on purpose
C. Three separate parts all treated diff:
a. Trust against public policy
i. VOID – cannot condition bequest on something contrary to pub policy
ii. Some cases ruled only the condition is unconstitutionally void
iii. Lest restrictive conditions on marriage have been upheld
iv. Conditions that encourage crimes, tortious bx, divorce are NO GOOD
b. Charitable purpose
i. S may have in mind purpose that subserves community interest
ii. Exempt from RAP; easily modified under cy pres doctrine
iii. Where private trusts must be for benefit of B, charitable trust valid for
charitable purpose
iv. Immune to durational limits that would otherwise apply
1. Immune to RAP
2. Immune when shifting from one charity to another charity
3. Immune when there are contingencies
4. Immune from taxation
a. Estate taxes and other transfer taxes
b. Any income it produces over time is likewise immune
5. Immune from beneficiary principle
a. Does not need discrete Bs to enforce
v. How it’s enforced:
1. Public is deemed B and state AG has standing to enforce for the
community at large
a. Typically they don’t do a good job monotirying trusts
2. UTC: S’s themselves have standing during their lifetimes
3. Can designate trust protector
a. Has standing to remove trustee, modify trust, or select
successor trustee
vi. Promises to make gratuitous transfers are supported by charity
1. Charitable subscriptions
2. Enforceable under Rest of Prop
vii. Two criteria to determine which trusts qualify as charitable
1. Qualitative: Must be one whose purpose subserves community
a. Changes as community standards evolve

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 b. Trusts for promotion of religion, education, poverty relief,
training for citizenship, etc.
c. Objective definition:
i. Doesn’t matter what S thought or meant
ii. Rest of Trusts: even if motive is in spite of heirs, trust
nonetheless charitable if purpose charitable
d. Close cases where purpose is propogation of some belief or
research
i. Pseudo sciences, acupuncture
2. Quantitative: benefit large enough segment of public at large so it’s
deemed to be in the broad community
a. As long as body of beneficiaries large, charitable even if only
a subset actually gets it
i. Ex. single church okay
b. Must be for indefinite Bs
c. Hirsch’s notion seems contrary to text:
i. Trust to send specific peron to med school to practice
in T’s hometown is charitable
ii. Mistake facts of case : in that case, trust provided
funds to send SOME one person to med school, not
specific person
viii. Shenandoah Valley Nat’l Bank: estate to pay school children for education
advancement the last days before Easter and Christmas
1. Under terms of trust, not confined to spend for edu purposes, just a
payment before the holidays.
2. T’s educational motive is merely subjective
3. Objective effect of trust is all that matters
4. Hirsch: an arg can be made that its’ charitable bc money is fungible
so why can’t we say it’s indirectly for school?
ix. What about hospitals or other org run for private profit?
1. No. Institution serving purpose in private profit is deemed mixed
a. Secondary purpose is someone’s private interest
b. To the extent that it can be severed, divide btwn charitable
and noncharitable purposes
c. Non-charitable purpose
i. Neither benefits not disserves community. Community indifferent
ii. Most common purposes:
1. Trust for care of grave sites
2. Care of pet animals
iii. Validity first came up in English cases
1. Trusts for noncharitable purposes ineffective and void for no B w/
standing to enforce
2. Can’t be a trust w/o a B
iv. In re Searight’s Estate: trust with income for dog care
1. Dog has no sui juris so trust can’t be given effect but bequest is not
completely void
2. Honorary trust: power to carry out a purpose
a. Trustee can exercise power to carry it out, in which case you
don’t need enforcement mechanism
b. Can choose to carry out purpose

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 c. If he doesn’t carry out purpose, can’t keep money
i. Alternate Bs
d. Qualifications:
i. Where owner transfers upon intended trust for
specific noncharitable purpose, transferee has power
ii. Don’t have to provide in will expressly for honorary
trust
e. Note: RAP would not apply bc no contingency, just bequest
for a purpose
f. Rest. is companion doctrine for RAP
i. Limits honorary trusts to same period for RAP
ii. Limited by the period of RAP, not RAP
g. Purpose cannot be capricious
i. Wasteful purpose
ii. Ex. publication of worthless manuscript
v. Largely superceded by statutory grounds
1. Every juris permits full fledged trusts for noncharitable purposes by
statute
a. Care of grave site in perpetuity
b. Trusts for care of living pet animal for entire life of animal,
not just 21 years, so they will pick apparent
i. Limited to living animals, not descendants of animals
c. Trusts for omnibus provision for accomplishment of other
noncharitale purposes for 21 years, allowing T to designate
trust enforcer

Cy pres (comme possible – as near as possible)

A. Special rule of charitable trusts
B. Can potentially rescue charitable trust that either initially or later becomes impractical and
sub for charitable urpose that is practical
a. If purpose already accomplished, would be repetitive
b. Can be brought by trustee or AG
c. Judicial doctrine, equitable doctrine
C. How it applies varies
a. Some states judicial, some statutory
b. Never acknowledge in AZ, modified in IL
D. Hurdles to be met to invoke doctrine:
a. Ct must decide whether purpose in question is or is not charitable
i. Cy pres traditionally only for charitable trusts. If not charitable, doctrine
unavail
ii. Doesn’t matter if actually operated, can be applied immediately to a
charitable trust which is immediately deemed impossible
iii. Cannot invoke doctrine to change purpose of noncharitable purpose trust to
charitable purpose trust
b. Is purpose impossible/impractical to effectuate
i. Not merely undesirable. If it is, under traditional cy pres, doctrine cannot be
invoked
ii. Statutory movement to liberalize circumstances where they can invoke cy
pres

52
 1. UTC: can be invoked not merely where impossible/impractical but
where it’s “wasteful”
c. Must be determined that S would want doctrine invoked
i. Absent express statement, ct has to make decision
ii. UTC: begins w/ presumption of intent
1. S cannot countermand cy pres after it has existed for 21 years
d. After finding those three, ct must be satisfied that proposed amendment is as “near
as possible” to what S intended
i. Ex. s trust fund to two geographically separate hospitals
1. Subsequently, one of those sole and becomes private
2. Cy pres invoked and AG proposed just giving $ to charitable hospital
3. Ct: closer alt would be to allocate second hospital’s funds to diff
hospital in same region
E. UTC 413 and Rest 3d of Trusts Sec. 67:
a. Shifts burden to party opposing Cy pres to show donor did NOT have general
charitable intent

Cy Pres vs. Administrative Deviation

A. Administrative deviation
a. Ct will permit deviation in administrative terms of a trust when compliance would
defeat or substantially impair accomplishment of purposes of trust bc of
unanticipated consequences
B. RAP disappeared from many juris in private trusts and can now be extended logner than
before and even noncharitable purpose trusts in some state can continue for longer than
perp which shows need to extend cy pres to other trusts
C. Doctrine of Equitable Deviation
a. Administrative provisions of trust can be modified if impossible/impractical, not
dispositive ones
b. Stretched to changing dates of distribution
D. UTC and state codes: even private trusts can be modified if circumstances change in order
not to strictly change but to better carry out trust purpose
a. CA statute: close to cy pres but not completely bc you can’t change purpose but
purpose broadly defined can be considered in terms of deciding what provisions to
amend

NONPROBATE TRANSFERS

A. Trusts along w/ some other devices can also be applied to avoid probate
a. Can be structured as nonprobate assets
b. Nonprobate assets aren’t part of the probate estate
i. Ex. Joint interests
c. Tangible rts that already exist inter vivos
i. Not illogical to treat them as being outside probate estate
ii. Ex. in case of rt to survivorship, exists as immediate tangible interest
1. Joint interest that B can already enjoy
2. Rt to survivorship could be sold immediately
d. Sometimes nonprobate transfer may not contain tangible inter vivos rts at all
i. Ex. death benefits
ii. Interest immediately revocable – can change whenever EE wants

53
 1. Even though no immediate inter vivos rts, still deemed a nonprobate
asset
2. Some are substantial, some are insubstantial until death
e. Trusts can be structured as nonprobate assets
i. Key question: when in theory does trust take effect
ii. When does it compromise complete gratuitous transfer
1. If during life, nonprobate asset
2. If after death, deemed testamentary asset
f. Characteristics of gratuitous transfers clear:
i. Gift: takes effect immediately
ii. Inter vivos trust paying out benefits immediately
iii. Testamentary trust created under will plainly is testamentary asset along w
any other transfer created under will and forms part of probate estate
g. Inherent flexibility of trust device allows it to be something in between
B. Revocable trusts
a. Valid
b. Not merely a bailment nor does that make it an agency
i. Agency: S continues to tell trustee what to do and agent obligated to comply
w/ instructions
c. Arrangement complete and trustee won’t follow S’s instructions but the terms of the
trust
i. S retains rt to terminate the whole agreement

Will Substitutes
A. Four main (“pure”) will substitutes (mass will substitutes):
a. Life insurance
i. B designation serves function of designation of devisee in a will
ii. Functionally distinguishable from a will
1. Revocable until T’s death
2. Interests of devisees ambulatory (nonexistent until T’s death)
b. Pension accts
i. B designations that pass owner’s interest in person of his choice if he dies
before exhausting acct payout
c. Joint accts
i. Purest bank operated will substitutes
1. Acct where depositer has explicit lifetime dominion while
designating Bs to take at time of death
ii. Joint acct manipulated to do work of a will – more like a gift
1. Typically funds split an donor loses rts to other’s $
iii. Differs from joint tenancy: can withdraw everything
iv. You can revoke cotenancy designations or other person may not even know
d. Revocable trusts
i. Standard form revocable trusts w/ fill-in-the-blank B designations offered in
banks
ii. Either by declaration of trust or transfer to third party trustee, terms can
replicate incidents of a will
iii. O retains equitable life interest and power to alter/revoke
iv. Donor can draft both dispositive and admin provisions to his liking
v. Trustee can be B, but not when same person is sole trustee B bc no duties to
anyone but himself

54
 vi. Always inter vivos
1. May be created by deed of trust or declaration of trust
vii. Testamentary trust: created by will
1. Always irrevocable
B. Imperfect “impure” will substitutes
a. Primarily joint tenancies
b. Resemble completed life transfers
c. When someone takes jointly, interest no longer revocable and ambulatory
i. Under joint tenancy, death cert, rather than probate decree, suffices to
transfer title
C. Will subs differ from ordinary will in three main ways
a. (1) Most are asset specific
b. (2) Prop avoid probate
c. (3) Formal reqs of Wills Act do not govern
d. Only probate avoidance is a significant advantage
D. Farkas v. Williams
a. Facts:
i. T purchased stock with T as trustee and interest at death to Bs
ii. Made 4 separate purchases of mutual fund stock in his own name and
prepared written declarations for cash dividends, to sell stock and terminate
trust and revoke trust entirely.
b. Stocks are valid corpus
c. One party trust doesn’t have rigid delivery requirement
d. Formalization reqs for trust:
i. If inter vivos: statute of frauds
1. Only reqs a writing for real prop, so here, wouldn’t need writing
ii. If testamentary: statute of wills
1. Need a witnessed writing
e. Here, T intended to give a present interest
i. If no interest, trust is testamentary for failure to comply w/ statute of wills
ii. Here, T could not do something he could have done before
1. Could not deal w/ stock to same extent as if he owned it absolutely,
but only in accordance w/ the terms of the instrument
2. Only upon sale, not gift, that he’s entitled to keep proceeds for his
own use
3. Couldn’t give stock away
f. Policy reason for effectuating trust:
i. Formality of transaction to ensure purpose behind enactment of statute of
wills is given effect
1. S executed four separate apps of stock w/ mutual funds
2. Manifested intention in solemn and formal manner
g. Policy:
i. Hirsch: on one hand, posit that we’re trying to avoid probate. It’s a good idea
to give people a choice of whether or not to do probate, but on the other
hand, have we achieved that result in a sensible way?
1. Lawmakers are saying living trusts avoid probate bc they comprise
inter vivos transfers but they don’t really.
2. Allowing them to masquerade as inter vivos transfers merely
circumvent probate and cause legal distortions:
a. Diff in formalization reqs

55
 i. No need to comply w/ statute of wills, even though
we have it for a reason
b. Safe harbor for living trusts executed in writing
i. Left to judicial doctrine for living trusts not executed
in writing
ii. UTC doesn’t’ even incl safe harbor- valid w/ or w/o
writing
h. 4 cases where S serving as trustee ows no fid duty to Bs of living trusts
i. If indep 3rd party trustee, 3rd party owes duty only to S and not B
ii. Bs cannot sue trustee settler or trustee for living trust
iii. No mechanism under traditional law
E. Totten trusts
a. Accepted in almost all states
b. UPC: totten trusts abolished and instead treated as POD acct
c. Designation appearing on bank acct indicating who the deat B is
i. Revocable designation as is the case w/ a living trust
ii. If not revoked, B gets it
iii. Exist either by statute or case law
iv. Hard to tell bc it’s judicial doctrine in many states
F. TODs (Transfer on Death) deeds for real prop
a. Attach revocable death B to stock cert
G. PODs (pay on death designation)
a. For other intangible rts besides securities (contracts, instruments of death)
H. Real estate
a. Uniform Real Prop act
b. Can create death designation for real estate deed (18 states)
I. Fed preemptions
a. Revocable on death designations can be attached to ERISA pension trusts, US
savings bonds, PO plans, 401ks, IRAs, etc.
J. Life ins
a. Benefits w/ revocable B, qualified as nonprobate transfers
b. Death b even though revocable, takes those life ins benefits outside probate
K. Each has developed its own body of law which varies btwn juris
a. Ex. predeceasing B = lapse under judicial doctrine
b. Does that apply to will substitutes?
i. Problem: in theory, to get around determination that will subs comprise
probate assets, rely on fiction that they are inter vivos transfers
ii. If already complete, why does B have to survive?
1. By virtue of logic, under judicial doctrine, living trusts do not lapse
c. Under jud doctrine for living trusts:
i. No lapse, predeceasing B takes
ii. Totten trusts; lapse nonetheless
1. B must survive. If not, must go to owner of acct
2. Lapse under UPC nut no antilapse associated w/ it
iii. Living trusts:
1. No lapse but universal antilapse
2. Doesn’t matter what relationship was to S if B leaves descendants,
those take in B’s place. No descendants = flows into estate of B under
jud doctrine
L. Doctrinal differences

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 a. Issues of secrecy
i. Secret trusts, not estate planning gimmicks, but formalistic foul-ups
1. For wills, everyone allowed to see.
ii. Living trusts: remain private
b. Satisfaction of creditors claims
i. Problem: fiction that it’s inter vivos transfer
ii. If donor makes gift to done and then dies, done is subject to creditor claims
only if comprised of fraudulent conveyance
1. If donor insolvent at time gift occurred, haven’t passed SOL for
creditor’s claims
iii. Many states: statutory rules override CL principle for living trusts
1. UPC and UTC: creditors given mechanism to reach living trust bc
creditors procedurally must brign probate proceeding, make claism
against executor and if claims not satisfied by estate, executor can
make claim against trustee or B if distributions already made
2. CA: death trustee for living trust has a choice
a. Can publish notification to creditors and notify reasonably
ascertainable in which case creditor nonclaim statutes apply
to living trusts
b. If death trustee declines to publish notification and notify
reasonably ascertainable Cs, C nonclaim statute does not
apply and alternatively, they have rt to directly reach assets
in hands of either death trustees or Bs
c. Even if one creates living trust, still prob of assets that haven’t been incl in it
i. In order to have living trust, have to know what’s in it
ii. Typically handled by abbreviated will executed next to trust and will simply
leaves everything to living trustee, consolidating trust plan

Pour-Over Wills
A. Valid
B. Issues: will is making testamentary provision to living trust. Does that result in literal
consolidation or does it make a clone of the inter vivos trust?
a. Doesn’t matter substantive, but as an administrative pt, may matter
b. Testamentary trusts administered in many juris in slightly diff way from inter vivos
trust
i. Inter vivos trusts: qualifies even though one could make strog args that it
really is testamentary in nature but deemed inter vivos and as such, trustee
only has to acct to B
c. Traditional rule for testamentary trusts:
i. Trustees of testamentary trusts must acct to Bs and probate ct
1. Ct and Bs will go to expense of checking those accts, which add to
probate costs
ii. Hence, testamentary trusts often referred to as ct trusts
C. UPC:
a. Drafters concluded double accounting superfluous and unnecessary expense so
many states have followed suit
D. CA:
a. Haven’t entirely abolished ct trust rules
b. Depends who is trustee—if corp fiduciary, doesn’t have to acct to ct, but if individual
trustee, DOES have to acct to ct, unless ct decides to waive that responsibility

57
 i. Discretionary for ct to waive for indiv trustees, automatically waived for
corp
E. By virtue of pour over, applying to will terms of trust contained in separate instrument
a. Separate instrument becomes template for how testamentary assets are to be
disposed of
b. Will refers to trust, so somewhat of incorp by reference
F. Do limitations for incorp for reference apply to pour overs?
a. Terms of trust must be referred to in writing and explicitly and writing has to exist
before will executed to assure finality of provisions
i. Trusts traditionally don’t have to be under Statute of Frauds (can be oral)
b. Every state has statute covering prob of pour overs largely based on Uniform
Testamentary Additions to Trust Act (UTATA)
G. Not strictly confined to living trusts
H. Statute (Pg. 444)
a. A’s will may validly devise prop to trustee established or to be established either
during T’s life by T or by T and some other person T established w/ spouse
b. T might pour over assets into trust incl funded or unfunded trust
i. Not confined
ii. Add another will sub to pour over – life ins trust
iii. Ambiguous whether you can pour into totten trust
I. Addt’l reqs
a. Will may give assets to trust if trust ID-ed in T’s will by reference and
i. Terms set forth in written instrument
b. Can only pour into trust formalized by writing, not oral declaration
c. Executed before, concurrently, or after execution of T’s will
d. Do living trust first and then pour over will second
i. Doing it backwards causes trouble and sometimes only held valid after
expensive litigation
J. Policy: Hirsch prefers revised version to original version
a. Ask why we have prior writing req for incorporation by ref – to ensure finality of the
doc. Want to make sure it is in fact the final version.
b. Problem of assuring finality doesn’t’ really come up w/ trusts
K. You can pour into trust created by someone else’s will
a. Here, all that is req’d is that will have matured prior to T’s death
b. Doesn’t matter when other will executed
L. Where inter vivos trust must already be created or made at the same time, if pour over
created for someone else’s trust in will, doesn’t matter whether that will was executed prior
to execution of T’s will
a. No finality problem
M. Will assume unless T says otherwise that T wants to consolidate.
a. Contrary to original Uniform Act, where pour over incorporates prior amendments
to T’s death, but not amendments after, unless will says otherwise
b. 1990 version revised presumption – even post mortem amendments taken into acct
N. Unless T’s will provides otherwise, revocation before T’s death of trust causes trust to lapse
a. Notice that according to this lang, trust can provide otherwise
i. So if you’re pouring into someone else’s trust, will can provide that roll over
created a trust even if revoked later in life
b. Provision confined to revocations before T’s death

RIGHTS OF SPOUSES

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Marital Property Systems
A. CL: SP is prop both H and W agree to hold separately while CP involves undivided items
shared equally
B. Issue under SP is what protection against disinheritance should be given surviving spouse
who works at home/lower paying job
C. Uniform Marital Property Act: adopts CP principles
D. Targeted protection:
a. Protection from particular sorts of hazards
i. Social security: stream of income for surviving spouse
1. Protecting retired spouse
2. T accumulating SS benefits not allowed to opt out
E. Homestead rts
a. Ensures survivors have a roof over their head
b. Typically protects surviving spouse and minor children
i. Usu life estate to survivor
c. Typically exempt from C claims
d. Value changes depending on juris (some unlimited)
e. Fed tax lien can reach a homestead
F. Set-aside statutes
a. Ensures survivors receive prop deemed essential for daily
b. Sometimes mandatory, sometimes default will subject to override
i. Cannot be overridden by will
c. Any prop exempt from judgment while D alive, but in ct’s discretion
i. Certain prop protected from levy by unsecured C
ii. Up to ct’s discretion who receives benefits
G. Family allowance
a. Sum taken from probate estate to tide family over while probate proceedings are
ongoing
i. Must be some hiatus btwn death and completion of probate
1. Distribution to family allowing resources
2. Might not have indep resources in that period of time but that
ensures they are provided for during hiatus before probate
completion
ii. CA:
1. Surviving spouse, minor children, physically or mentally
incapacitated adult children dependent on D for support are entitled
2. Can be given to other children who are not incapacitated but
dependent on D + parents of D dependent on D
3. No limit on value – ct’s discretion
4. Family allowance superior to general creditor claims but
subordinate to costs of administration, funeral, last illness
H. Blanket protection
a. Protections offering reserved portion of estate generally for surviving spouse
i. Two forms:
1. CP for surviving spouse
2. Elective share

Elective Share
A. Surviving spouse has rt of election:

59
 a. Either take what is provided by will or elect against will and take elective share,
which is some fraction of net probate estate
b. Subordinate to C’s rts, which means if estate is insolvent, elective share is 0
c. Varies from state to state, but usu 1/3
i. In some juris, fraction depends on whether there are children/children from
prior marriage – will lessen
ii. Others vary size on size of estate
1. UPC: sliding scale
B. Surviving spouse may be stripped by virtue of abandonment and adultery
a. Akin to irresponsible heir

Elective Share vs. CP

A. CP:
a. Spousal protection confined to income generated during marriage, not assets
acquired before marriage
b. Operates reciprocally – each spouse can claim even if person dies first.
i. Can bequeath half of CP estate
c. Accrues inter inter vivos – not a form of inheritance protection
B. Elective share:
a. Operates unilaterally – only survivor can claim and decedent cannot
b. Only accrues at death
c. Not confined to income generated during marriage but applies to all prop whenever
acquired by D
C. Waiving
a. Hirsch: every juris allows waiver to some degree by agreement
b. Rules that apply differ depending on whether pre or post nuptial
i. UPC (p. 503)
1. Rt of election of surviving spouse along w/ homestead family
allowance and exempt prop may be waived before or after marriage
by written contract agreement signed by parties
2. But for limitations:
a. Surviving S’s waiver not enforceable if spouse proves he did
not execute waiver voluntarily
i. Wagner agreement
b. Alternatively, even w/o duress, if waiver unconscionable
when executed, and in addition to unconscionability waiving
party was not provided w/ faire and reasonable disclosure of
assets if disclosure not waived or if disclosure not necessary
bc waiving party already had adequate knowledge of prop
owned by spouse to be
ii. CA:
1. Applies equally to pre and post nups
2. Must be signed and in writing
3. Reqs fair and reasonable disclosure unless waived after advice from
indep counsel
a. No actual knowledge exception like UPC
4. Spouse repped by indep L when signed in all cases
5. Either of the two: unconscionability or absence of disclosure
a. Unlike UPC which reqs both
b. Can void through lack of disclosure

60
 c. If ct determines not fair or reasonable at tiem of signing,
subsequent circumstances irrelevant or if it becomes
unconscionable, which is more severe than unreasonable, at
time when enforcement sought – ct can either avoid or
modify to render it conscionable
D. Purpose:
a. Cheaper for state gov’t – don’t have to support surviving spouse from welfare
E. No cap on CP and Elective shares
a. Joint effort involved even for nonworking spouse
b. May provide them w/ larger amount than req’d to avoid welfare eligibility
F. Protections serve gender equality
a. Statistics show more likely wife will benefit from elective share
b. Ws disinherit H’s twice as often as H’s disinherit Ws
i. Spousal disinheritance occurs where couple long separated or where
spouses have children from prior marriages who they wish to provide for

Pretermitted Spouse Statute

A. Another form of spousal protection
B. If T executes will then subsequently marries, omitted spouse can claim intestate share in
most cases
C. Only applies to wills, not will substitutes
a. Asymmetrical to UPC provision on divorce as creating implied revocation
b. Revocation by law operates to disinherit former spouse under either will or will
substitute
c. UPC 2-301:
i. Addition rather than subtracting only for wills, not will subs
ii. To extent that will bequest to child or descendant of a child from surviving
spouse the child, statute doesn’t apply
iii. If will bequeaths everything to child from former marriage and T marries
again, under UPC, statute fails to apply
1. Failure to execute another will might be intentional unless it appears
from will or other evi that will made in contemplation of marriage
and still failed to provide or will expresses intention that it be
effective
d. CA:
i. Applicable only to will
ii. Share surviving spouse receives as omitted spouse is intestate share up to ½
SP but no more
1. No limitation in UPC, could be entire estate
iii. No exception for wills bequeathing to child from former marriage
iv. Cannot look to extrinsic evi that will was made in contemplation of marriage
1. Only way to override statute is if will itself anticipates marriage or if
D provided outside will OR if pretermitted share provides

Must Surviving Spouse Accept a Life Estate?

A. If amounts of all other interest given by will do not satisfy elective share, diff muts be made
up either by pro rata contributions from all other Bs or from residuary estate
B. Original UPC and law of most states:
a. If spouse renounces life estate and elects share in fee simple, not charged for value
of life estate

61
 b. Later amended: spouse who rejects IS charged amount equal to half total value of
prop subject to life estate
C. Practical effect:
a. Forces spouse to take life estate given in will
b. Keep distortion of will to as minimum as possible
D. later amended after heavy criticism

RIGHTS OF DESCENDANTS OMITTED FROM WILL

Disinheriting Children
A. LA is the only state that provided protection from disinheriting (Legitime)
B. American rule: can give to one child but not another
C. Policy justification:
a. Joint effort doesn’t apply to children
b. You can divorce unfaithful spouse, but not unfaithful child

Limitations to Disinheriting Children

A. Rts may apply to children depending on juris
a. Homestead rts
b. Set-aside rts
c. Family allowance
B. CA: Minor children can exercise homestead rts, set-aside rts
a. Adult children physically incapacitated and other adult dependent children may
claim family allowance, irrespective of what the will says
C. By statute, 8 juris allow if child is entitled to child support by virtue of decree and parent
dies, that rt continues post-mortem
a. Contrary to CL rule that obligations to support a child end w/ death of parent
b. Other states have reached by judicial decision (CA)
i. Child support decres can e enforced against probate estate of parent
D. By statute, 4 states state that D’s estate obligated to support any child who parent, while
alive, would be obligated to support, who has become a public charge
a. NV: can order support even in absence of eligibility
E. Caregiving child : can claim at ct’s discretion
F. Default rule:
a. Pretermitted child statute:
i. Like pretermitted spouse statutes are designed to take into acct changed
circumstances of child birth operating under assumption that parent who
neglects to amend will after childbirth have probably done so inadvertently
ii. Gives child an intestate share
G. UPC 2-302 Omitted Children
a. (a) except for (b), if T fails to provide for children after will execution, child receives
a share as follows:If no children, receives a share he would have received if T
intestate, unless will devised all estate to other parent of child If living children at
the time, omitted child entitled to:
i. Portion limited to divises made to living children
ii. Share limited to that which T would have given to all children equally
iii. Must be of the same character as that devised to living children
iv. Devises to living children abate ratably preserving character of testamentary
plan of T

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 b. (b) not allowed if it appears to be intentional or if T provided for the omitted child
outside the will that it be a replacement for not being in the will
c. (c) if t fails to provide for living child bc T believes child is dead, gets a share as if
after-born/adopted
d. NOTE: does not apply to will substitutes
H. CA:
a. Only applies to will
b. Both for after born and after adopted children
c. Pretermitted share is intestate share
d. Even if the will provides all or substantially all the estate to surviving spouse, the
after-born/adopted child CAN claim an intestate share UNLESS in addition to that
fact, there were also children already born and not provided for
i. Not the same in UPC. If subsequent child, doesn’t matter if there were
already children born. Assumption that T likely intends to let surviving
spouse provide for child
ii. Reqs more evi in CA that omission was intentional
iii. UPC: Estate plan clearly indicates T’s intention to provide only for spouse
e. If will anticipates childbirth, will supercede statute, or if T provided for child outside
probate, that supercedes statute
I. After-Known Children
a. After-known children CANNOT claim benefits
i. Gilmore: T executed will in 96 without knowing that he has two non-marital
children who were both born before will execution. Became aware of their
existence a decade after will execution and verified paternity through
voluntary DNA test and began introducing them to people as children and
developed relationship, but neglected to put them in will. Children claimed
pretermitted statute for child care.
1. Textual analysis even though cts have carved out judicial exception
b. It’s a substantial change in circumstance to become aware of existence of child you
knew nothing about, yet statutes generally do not take acct of this circumstance
c. Exceptions:
i. Pretermitted child statute not confined to after-born children, but to any
child not named in will (6 juris)
1. Justification: protects T from “forgetfulness/oversight”
ii. CA statute: if at time of execution T failed to provide for child solely bc
unaware of birth of child, child receives intestate share
1. Probably an oversight of this statute: make no exception for a will
anticipating that possibility
2. Ex. T wants to anticipate possibility of an after-born child, a will can
say that NO after born child will take, in which case, the statutory
rule that will has provided, so child won’t take
a. No qualification in after-known child statute.
b. Read textually, in CA, if child not born, can be specifically
disinherited, but born and unknown, CANNOT be.

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