crib sheet for final

8/3/2019 Crib Sheet for Final

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Generally: UTC/UPC- governed by statute,RESTATEMENT- governed by C/L Professional ResponsibilityFour areas of Malpractice: Fail to arrange properexecution of will; Fail to clearly document the T·sintent; violation of the RAP ; tax violations; Inter-vivos gifts v. upon deathIntestacy UPC §2-101Definition: any part of estate not effectively

disposed of by will passes by intestate succession toheirs as prescribed in code (except as modified bywill). (b) a D by will may expressly exclude or limitthe right of individual or class to succeed to prop of Dpassing by intestate succession. If that person survivesD, share of intestate estate which would have gone toperson treated as if individual/class had disclaimedShare of Ss §2-102. Main policy: is to carry outthe probable intent of the average decedent. Mostcommon provision is to give the spouse ½ share if only one child survives, 1/3 share if more than onechild survive. UPC: if there are surviving children of the D but they are also ss·s, then everything tospouse.UPC: model code-1969 version followed by 1/3 of states, revised in 1990 (IN doesn·t follow).Elective share: SS can renounce will and take afractional share of estate. ·90 UPC: sliding scale, 3%

per year for each 10, 4% after until you reach %50.$50k supplemental in case the SS own assets andother entitlements are below. Most states give set %regardless of duration of marriage. Have to survivespouse. ·69 UPC: developed augmented estate,providing that certain nonprobate transfers aresubject to elective share (1/3 of augmented estate,which includes the probate estate and transfer(revocable, retained rights of, joint tenancy w/in 2yrs before death exceeding 3k) property given tospouse during lifetime and received by spouse atdeath (life ins and pensions) made w/o considerationin $·s worth at any time during marriage. Excludeslife ins payable to someone other than SS. Giftsincluded, credited against ES. ·90 UPC: redesignedso more like comm.. prop, adds up prop of both s·sand splits according to a % based on length of

marriage, once at 15 yrs, get 50%. Includes transfers before marriage where D retained substantial controlof property.Marital Prop: C/L: separate prop, H and W ownseparately all prop each acquires (except jointownership), most c/l states give ss an elective/forceshare. Community prop: H and W own all acquisitionsfrom earnings after marriage in equal undividedshares (1/2 interest), prop owned before marriage,

by gift, devise, descent is not comm. prop- 9 statesProtected prop of ss: homestead, personal propset aside (UPC says 10k limit), family allowance(maintainance/support), dower (1/3)Simultaneous Death - person succeeds to the propof an intestate or testate decedent only if survives thedecedent for an instant of time. Janus- ·85: 2 ways inwhich death can be determined- (1) C/L standard ,

based on the irreversible cessation of circulatory and

respiratory function (2) if artificially maintained, braindeath standar d. Survivorship is a fact, which must beproven by a preponderance of evidence by the partywhose claim depends on survivorship. Testimony by lay

witness: burden met by evidence of positive sign of lifein one body and absence of sign in another. Testimony

of medical professionals: usual and customary standardsof medical practiceUniform Simultaneous Death Act 1953: where no

sufficient evidence of the order of deaths, B presumedto predecease: revised requiring clear and convincingevidence of 120 hours (5 days) survival (for joint

tenancy A and B, die simultaneously, ½ distributed asif A survived, ½ as if B survived)Devises real prop to devisees, bequeaths personalprop to legatees, real prop descends to heirs, personalprop is distrib. to next of kin.___ Taking by representation: After the spouse·sshare is set aside, children & issue of the D take theremainder. When a child dies before D and leavesdecedents, they get to take by representation. In laws

are excluded as intestate successors in almost all states.English distribution per stirpes (lawyersprefer): divides the prop into as many shares as thereare living children and deceased ch ildren w/in livingdescendants. Modern (American) per stirpes(per capita w/ representation): divides theestate into shares at the generational level nearestdecedent where one ore more descendants of the Dare alive and provide for representation. 1990 UPC2-106 (per capita at each generation) (clientsseem to want): gives those equally related to thedecedent equal shares. Shares are divided at the levelwhere descendants are living. Shares of any deceasedparties at that level are treated as one pot and aredropped down and divided equally among therepresentatives at the next generational level.

Shares of DescendentsNegative Disinheritance Old: disinheritance isnot possible by a declaration in a will that ´my son

John shall receive none of my prop.µ entire estatemust be devised to other people New: UPC 2-101(b) authorizes a negative will. The barred heir istreated as having ´predeceased the intestate.µShares of Ancestors and CollateralsWhen there is no descendant, after deductingspouse·s share, rest of the intestate·s prop distributedto decedent·s parents (UPC). If no parents,Collateral kindred: All persons related by bloodto decedent but who not descendants or ancestorsFirst-line collaterals: descendants of the decedent·sparents, other than the decedent and the decedent·sissueSecond-line collaterals: descendants of thedecedent·s grandparents, other than decedent·sparents and their issue, if there are none of either,

then one of two schemes is used:parentelic system: intestate estate passes tograndparents and descendants, if none to great-grandparents and descendants, and so on until an heiris founddegree-of-relationship system: intestate estatepasses to the closest of k in, counting degrees of kinship discerned from the table of consanguinity.Degree =counting the steps (one per generation) upfrom D to nearest common ancestor of D & c laimantand then counting steps down to claimant from thatcommon ancestor). Total steps=degree. Tie breaker:modified degree of relationship- if two cl aimants havesame degree, those claiming through the nearestancestor to decedent shall be preferred to thoseclaiming thorugh an ancestor more remoteEscheat intestate leaves no survivors ² prop goes tostate. UPC §2-105

Half-Bloods M aj.: (and UPC)- treat the same aswhole blood, VA (scottish rule), FL, TX, gives half share, MS only gives if no whole blood, OK-excluded when there are whole blood kindred in thesame degree and the inheritance came to the decedent

by an ancestor and the half is not a descendant of theancestorLaughing heirs Heirs descended from parentelicancestors beyond grandparents. UPC 2-103 barsinheritance by intestate succession beyondgrandparents and their descendants. Some statesoppose and allow even stepchildren and kin of

predeceased spouse to inherit when there are no

blood relatives of the decedent

TRANSFERS TO CHILDRENAdvancements: if any child wishes to share in theintestate distribution of a deceased parent·s estate,the child must permit the administrator to include inthe determination of the distributive shares the valueof any prop that the D when living, gave the child byadvancement. C/L: Presumption that an inter vivos

gift to a child is an advancement. Can be rebutted byc/c evidence that the gift was absolute duringdecedent·s lifetime. If child died, taken out of theirchildren·s share. M odern law : (UPC §2-109) reversesand transfers are not presumed unless it is shownotherwise (usually writing), or the writing oracknowledgement indicates the gift is to be taken intoaccount. Also child·s heirs get it if heir predeceasesdonor. Prop advanced is valued at time the heir cameinto possession or at time of D·s death (whichever isfirst).Hotchpot: child receiving the advancement allows itto be calculated w/ the rest of the estate and then thedistributive shares are determined.Transfer of an Expectancy likelihood that personwill become an heir upon the decedent·s intestacy.may not be transferred bc may be destroyed by willor deed. NOT A LEGAL INTEREST, but if transferred for adequate consideration, the transfermay be enforceable in equity as a contract.Heirs Apparent: no living person has heirs, heirsthat expect are these_______________ Managing a Minor·s Prop: prop turned over tooverseer=principal, income is what is generated fromit (interest, rent, dividends)Guardian: does not have title to prop and cannotchange investments w/o court order, has duty topreserve prop and deliver at age 18 (unless court saysotherwise), must support the ward using only incomefrom prop, must obtain court order to use principal,very costly and restrictive. Income only can bedistributed w/o court approval.Conservatorship: more flexible, annual trips tocourthouse for accounting purposes.UTMA Account (Custodian): same as trust, but

at age 18 upon reaching Maj. is when terminate anddistribute prop to minor. Useful for modest gifts,large should go to trust. Given prop to hold for the

benefit of minor until 18. Has discretionary power toexpend for minor·s benefit as much or all of prop asneeded. Any prop left at 21 is transferred to minor.Subject to fiduciary duties, the standard of care thatwould be observed by a prudent person.Trusteeship: most flexible of three, can reinvestw/o court approval, doesn·t have to have annualaccounting, income and principal may be distributedw/o court approval, termination and prop distributed

can be deferred until any age settler chooses.

TYPES OF CHILDRENPosthumous Children child will be so treated if

born alive from time of conception for purposes of inheritance or prop rights, Rebuttable presumption280 days. U niform Parentage Act §4: 300 days after

death is H·sAdopted Children: UPC §2-113: individual whois related to D through 2 lines of relat ionship isentitled to only a single share based on therelationship that would entitle the individual to thelarger share From: a child inherits ´fromµ the parent aloneThrough: a child can inherit from grandparents,etc.By: inheritance by the child from either parentIn H all , court held that once child is adopted, therights of both natural parents and relatives areterminated. Adopted children unable to take prop



form a deceased natural uncle. UPC precludes naturalparents from inheriting ´fromµ or ´throughµ a childexcept where the parent treats child as his own andcares for him.Biological Parents: once the child is adopted, nolonger part of the biological parents family and childdoes not inherit from any biological ancestors orrelatives. Other may allow adopted child to inheritfrom all four parents, biological and adoptive.

UPC §2-114: Adoption of a child by the spouse of either natural parent has no effect on (1) therelationship between the child and the natural parentor (ii) the right of the child or a descendant of thechild to inherit from or through the natural parent.UPC allows adopted children to inherit via naturalparents if adopted by step- parent. Natural parentscannot inherit through their children unless they holdthe child out as their own.Reproductive Technology: parenthood should bedetermined by intent of parties as shown by surrogacycontract rather than by who gave birth H echt: leftsperm for girlfriend, couldn·t use it. Woodward :children born long after father died, want socialsecurity benefits. Whether they are ¶issue·. BIOCtest. Intended to have children after his death,consent. UPC signed writing consent, must be inutero w/in 3 yrs, or born no later than 45 months

after. CA: consent, and in writing, must be w/in 4months of death notice to sue the genetic material,child must be in utero w/in 2 yrs. LA: 3 yrs (can·tdisinherit child). UPA: requires consent in writingAdult Adoption: Natural parents refuse to permitadoption. child reaches Maj., child can be adopted.used to fulfill the wishes of the testators. Eliminateschallenges from collateral kindred in intestacy. Canalso be used to avoid will challenges. NY bansSpouse/lover: particular state constraints. M inary v.

Citizens Fidelity Bank: residuary at stake, son adoptedhis W so that she could inherit from the previouslyset up trust, dies, can·t inherit bc not D·s intentFoster Parents: The law treats the child as a child of the foster parent for purposes of inheritance. An oralagreement between natural and adoptive parents isimplied after performance and the foster parents

holding the child out as their own. The child caninherit from the foster parents, but not vice versa.Children can often inherit through Equitable

adoption/virtual Wilkes: not found there, just bc noobjection, doesn·t mean K is ratified. Legal custodiandidn·t have permission to agree to adoption. Cookdidn·t statutorily adopt. Dissent: should be virtual bcfull performance of the adoption agreement by thechild should be sufficient to overcome objection thatit is unenforceable. Doris Duke: settled out of cNon-marital Children All jurisdictions permitinheritance from the mother, but the rules regardinginheritance from the father vary. paternity can beproved by c/c evidence (subsequent marriage of theparents, acknowledgment by father, adjudicationduring life of father, clear and convincing proof afterdeath. C/L: child was filius nullius, child of no one,and didn·t inherit

Uniform Parentage Act: law confers rights andobligations based on parent-child relationshipregardless of marital status of parents (UPC §2-114).When not married, father and child relationship whenfather receives minor in home and openly holds childout as own, or the father acknowledges his paternityin writing in court (§4). If relationship presumed toexist, action to challenge can be brought at any time.If no presume father (don·t meet §4), action must be

brought w/in 3 yrs after child is 1 8 (§6,7) Bars to SuccessionHomicide; M ahoney VT·66: 3 ways when no statutepreventing a slayer from taking (1) legal title passes to

slayer, (2) legal title doesn·t pass to slayer, (3) legaltitle passes, but held equity in a constructive trust forheirs or next of kin (innocent heirs). Line drawn

between vol. and invol. Manslaughter, intent to kill brings into play a constructive trust. If insane, orslayer had vested interest in prop (no const. trust).UPC §2-803 bars nonprobate as well. Probate courthas limited and special j urisdiction (don·t have powerto establish purely equitable rights and claims). UPC

§2-803(g): provides that a criminal conviction of intentional killing is conclusive. But thatacquittal/absence of conviction/plea of guilty tolesser crime doesn·t preclude acquitted indiv. From

being regarded as D·s killer. Preponderance of evidence

whether slayer found criminally liable for killing.Chinese: punishes a potential·s heir·s misconduct byreducing or eliminating share, and rewards good

behaviorDisclaimer UPC/Maj.: allows universal disclaimerstreating the heir/devisee as predeceasing thedecedent. But if by law or under testamentaryinstrument the descendants of the disclaimant wouldshare in the disclaimed interest by representation orotherwise were the disclaimant to predecease thedecedent, the disclaimed interest passes byrepresentation, or by the governing instrument. C/L:intestate successor cannot prevent title fro m passing

to him or her, testate, can refuse to accept the devise.UPC §2-801(d): ´disclaimer relates back for allpurposes.µ Therefore, A·s creditors cannot reach hershare if she disclaims and the estate goes to A. courtsare split as to whether this rule may apply to federaltax liens. The disclaimed prop is treated as passingdirectly to hers, bypassing the disclaimant. Saving

estate taxes: IRC 2518 permits qualified disclaimers(those made w/in 9 months after interest is createdor after donee reaches 21, whichever is later) to passthe prop from the intended recipient to the ¶next inline· free of any gift or estate taxes. CREDITORSMIGHT BE ABLE TO TOUCH THE PROCEED IFIT IS GOV. Drye v. U S: trying to disclaim the estate tohis son to avoid repaying his estate.M edicaid Purpose of Disclaimer : Troy v. H art:different states will forbid transferring funds to get to

that level of qualification. Can transfer to spouse, andincapacitated individuals. Must report that you h avedisclaimed to avoid fraud. If recipient dies leaving nonor probate prop, the state may attempt to recover outof those assets benefits paid to the Medicaidrecipient.___ PROBATE: IND CODE Title 29Procedure: (1 ) opening probate ² three functions (1,provides evidence of transfer of title to new owners

by probated will or decree of intestate succession, 2,protects creditors by requiring payment of debts, and3, distributes decedent·s prop to those intended aftercreditors are paid). (2) supervising the representative·s

actions- supervised (many states require closesupervision), unsupervised (some states allow PR tohandle all matters informally so long as all interestedparties are adults and approve fiduciary·s account andrelease from liability), minors (if involved, judicial

supervision required), UPC (allows unsupervised andsupervised administration) (3) closing the estate-creditors must be paid, taxes must be paid, taxreturns audited and accepted, real estate sold. Judicialapproval of PR·s actions required to relieve him fromliability.UPC: (promulgated ·69, revised ·90): provides forinformal probate/unsupervised (PR does notgive notice to anyone and petitions for appointment.PR has duty of mailing notice to all interested partiesw/in 30 days of appointment) and formalprobate/supervised (formal judicialdetermination, after formal court proceedings, and

after notice to interested parties, any of whom maydemand formal probate). IND Code section: $50,000limit for deciding whether to go informal/formalLiving Probate/ Ante-Mortem: statutes in AR,ND, OH allow a person to begin an adversaryproceeding during his lifetime to declare the validityof a will and his testamentary capacity.Letters: testamentary or administration are issuedper state statute, authorize PR to act on beha lf of

estate. Jurisdiction: primary or domiciliary: wheredecedent was domiciled at the time of death.Ancillary administration is required when real prop islocated in another jurisdictionEnglish System: provides for in common form (exparte proceeding, no notice or process issued to anyperson. Interested parties could file a caveatcompelling probate in solemn form) or in solemnform (notice to interested parties given by citation;greater court participation required).Barring Creditors of D: nonclaim statutes: everystate requires creditors file claims w/in specified timeperiod, those filed outside are barred. Two forms:short term: bar claims not filed w/in 2-6 monts afterprobate begin. SC held that Due process requires thatknown or reasonably ascertainable creditors be givenactual notice before they are barred by these. Long

term: 1-5 yrs of decedent·s death, regardless of when(or whether) probate procedures began.

WILLS: CAPACITY/CONTESTSMental Capacity The testator has to have ability toknow: (1) the nature and extent of the testator·sprop (2) the persons who are the natural objects of the testator·s bounty(3) the disposition the testator ismaking, and (4) how these elements relate so as toform an orderly plan for the disposition of thetestator·s prop. a mental capacity argument (onlyrelevant at the time of the will·s execution)invalidates the entire will. Must understand thesignificance of his act.Capacity : governed by a different legal test andrequires less competence than the power to make acontract or a gift, but more competence thanmarriage. Estate of Washburn: presumption is that she

had capacity, petitioner must show she doesn·t(medical testimony, lay witnesses). In re Strittmater :Woman·s org, insane delusions. Found condition of insanity leads a testator to do something in her willthat she otherwise would not have done, portion may

be set aside. balance family w/ NWP, court looks atthat disposition as being materially alteredReasons for mental capacity: (1) a will shouldrepresent the testator· (2) mentally incompetentman/woman is not a person (3) law requires it toprotect the decedent·s family (rec iprocity), givingeffect to expectations tends to preserve familial unit,inheritance seen as delayed payment for love, fairnessof disposition sometimes used by court as factor (4)legitimacy cannot exist unless decisions are reasoned(5) assures sane person that the disposition the persondesires will be carried out (6) protect society fromirrational acts (7) may protect senile or incompetent

testator from exploitation. Wright: man did strangethings, lived in dirt shack, etc. testamentary capacitycannot be destroyed by showing a few isolated acts,idiosyncrasies, moral or mental irregularities ordeparture from norm unless they directly bear uponand have influenced the testamentary act. Only partwill be struck, remainder will be allowed if theinvalid portion can be separated w/o defeating thetestator·s intent or destroying the testamentaryschemeInsane Delusion: impairs testamentary capacity, adelusion which testator adheres to against all evidenceand reason to the contrary. false conception of reality



w/ no rsbl basis (legal not psych concept). In re

H onigman: cut off his W 1 month before death(thought affair), proof amply supported (pre of evidence) that T was suffering from unwarranted andinsane delusions, set aside portions. Will may bestruck down if its dispository provisions were ormight have been caused by delusion.M aj.: delusion isinsane even if there is some factual basis for it if arational person in the testator·s situation could not

have drawn the conclusion reached by the T.Mistake: mistaken belief is susceptible tochange/correction once the T is told truth. Courtsrarely correct mistakes ² important to distinguishfrom i.d. ID only invalidates the part of the willproduced by the delusion. To rebut ID challenge,attack the rational basis of the T·s belief. UPC:corrects ¶thought he was dead· mistakeUndue Influence: Lord Hannen: to be undueinfluence in eyes of law there must be coercion. Onlywhen the will of a person who becomes a T is coercedinto doing that which he or she does not desire to do,that is UI. Look for psychological domination. (1)Relationship the T was subservient to theinfluencer; there existed a relationship of trust and confidence; the influencer was mentally superior to theT; T was susceptible to influence. (2) Dispositionand Opportunity influencer must have

disposition to influence T and his decision; haveability and opportunity to exercise influence; look atinfluencer·s motive (3)Result Did UI result inchange in will benefiting influencer. Can becircumstantial proof. Test: whether such control wasexercised over the mind of the T as to overcome herfree agency and free will and to substitute the wil l of another so as to cause the T to do what she wouldotherwise not have done if not for influence. In re

M oses: intimate relationship w/ attorney, butindependent attorney drafted the will, no contest.Sister attacked, court found UI. Confidentialrelationship gives rise to presumption of UI, can beovercome by evidence that, in making a will M hadacted upon the independent advice and counsel of oneentirely devoted to her interest. Lipper (see no contest ).

Kaufmann: will to gay partner, brother sues for UI and

wins.Puckett v. Krida

: confidential relationship plussuspicious circumstances.Testamentary libel: cause of action for libelousstatements in will about so meone elseBequests to Attorneys presumption of UI ariseswhen attorney/ drafter receives legacy, except whenatty is related. Rebuttable by by person occupyingthe confidential relation to prove absence of UI. Somestates require additional evidence that the B wasactive in procuring the execution of the will. M oses court found UI when old woman devised to younglover. ABA Rule 1.8(c): exempts present gift atholiday or as token of appreciation, okay if related,

but shouldn·t be substantially large. NY: surrogatemust investigate any bequest to an attorney whodrafted will- no presumption of UI. CA: statuteinvalidates any bequest to a lawyer who drafts the willunless related by blood or marriage to T. exception if

client consults an independent lawyer who attached acertification of independent review says noUI/fraud/duress.Fraud T is deceived by an intentional misrep anddoes that which T would not have done but for mis.Fraudulently produced provisions are excluded fromwills unless they taint. entire will. impose aconstructive trust on the wrongdoer. (1) Intent todeceive (2)purpose of influencing the disposition;and (3) causation: intentional misrep produced afraudulent resultFraud in Inducement: occurs when personmisrepresents facts, causing T to execute will,

include particular provisions in wrongdoer·s fav,refrain from revoke will, not to execute will.Problem is determining whether legacy is the fruit of the fraud.Fraud in the execution: occurs when a personmisrepresents the character or contents of theinstrument signed by the T, which does not carry outthe T·s intent.Remedies Contest the will in probate court

Constructive Trust: Tortious Interference w/ anExpectancy (not a will contest). Lantham v. Father

Divine: religious cult leader prevented Lyon fromrevoking will and including cousins in it.Constructive Trust: where a divisee or legateeunder a will already executed prevents the testator byfraud, duress, or undue influence from revoking thewill and executing a new ill in favor of another, sothat the testator dies leaving the original wil l enforce,the devisee or legatee holds the prop thus acquiredupon a CT for the intended devisee or legatee. May

be imposed where no fraud is involved but the courtthinks that unjust enrichment would result if theperson retained the prop (even if innocent, still may

be imposed b/c unjust enrichment- heirs). Where alegatee has taken prop under a will, after agreeingoutside the will, to devote the prop to a purposeintended and declared by the T, equity will enforce a

CT to effectuate that purposeTortious Interference w/ expectancy: tort(breach/proximate cause/damage), someoneexpecting a gift is harmed (P) action in equity. P mustprove the interference involved conduct tortious initself, such as fraud, duress or undue influence.Theory may not be used when the challenged basedon mental incapacity. NOT A WILL CONTEST,doesn·t challenge the validity of a will or probate,seeks recovery in tort damages (including punitive),tort sol·s governs it, starts running at the time Pdiscovered (or should have) that the fraud or undueinfl. and no contest clause in wills do not apply. Moststates require P to pursue probate remedies first (if not direct heir, can·t challenge, or maybe assetsalready distributed so probate challenge ineffective).Constructive trust, probably no damages. Treated

differently among jurisdictions, some not at all.Longer sol·s. No tort in MA Shilling v. H errera: brother vs. caretaker. First fraud was when sheinterfered w/ what he expected to inherit, and failedto notify him. Existence of ex pectancy, intentionalinterference, proximate cause, damages.No Contest Clause: provides that a B who conteststhe will shall take nothing (or a token amount) in lieuof the provisions made for the B in the will. M aj.:enforce the clause unless there is probable cause forthe contest. M in.: believe the probable cause ruleencourages litigation. Enforce clause unless thecontestant alleges forgery or subs. revocation by alater will or codicil, or the B contests a provision

benefiting the drafter of the will or a witness thereto.Key : investigate local law carefully. UPC: supportsthem unless probable cause exists for no contest.Lipper v. Weslow : grandchildren disinherited, no

contest clause, but they weren·t getting anythinganyway, frank (Attorney/son) got large share.Evidence insufficient to find UI. Clause explainedreasons for leaving them nothing. Better to leavesomething so no contest will occur.More Contests in US than UK: Langbein-relatives and friends are those required to testify. (1)no disinherited children in England, (2) Juriesfavorable to plaintiffs, in UK civil jury tr ials are notavailable for probate contests, (3) plaintiffs notaccountable for attorney·s fees, (4) authenticated

wills available in England

WILLS: FORMALITIES AND FORMS

Execution of Wills(1)Ritualistic: effectuating the requirements of atransfer/guarantees the completion of the will;impressing upon the transferor the significance of hisstatements. To convince the court that the s tatementsof the transferor were deliberately intended toeffectuate a transfer, some ceremonial is required forpurpose of impressing the transferor w/ thesignificance of his statements(2)Evidentiary:

requiring satisfactory evidence to insure atransfer/goes to the reliability of an execution.Increases the reliability of the proof presented to thecourt. (3)Protective: safeguarding the T from UIand other forms of imposition Ex: acknowledgmentover the phone may not be acceptable (may argue´conscious presenceµ in some circumstances)prophylactic purpose. Prima facie evidence that thereis no undue influence. (4)Channeling: making thesedocuments standardized. Creating a safe harbor, Tprovided w/ assurance that his wish will be c arriedoutExecution (1) in writing (2) signed by the testator(3) signed by at least two individuals (4) signaturemust be at foot of will (5) witnesses sign or attest inpresence of TPresence Requirement Line of Sight Test: (English and Min.): a will is valid only if the T is able

to see the W in the act of signing were he to look.Conscious Presence Test: Ws is in the presenceof the T if the T, through sight, hearing, to generalconscious events, comprehends that W is in act of signing. Physical Presence -UPC 2-502(a)(3): doesn·t require witnesses to be immediately present.sufficient if they sign w/in reasonable time after T orw/ T·s acknowledgment of the signature. T mustacknowledge that will is his.In Re Groffman: (ENG): will denied probate bc 2 w·sacknowledged at different times. §9Wills Act: willmust be in writing and properly executed, must besigned in the presence of 2 w·s and by his direction,and signature must be made or acknowledged by T inthe presence of 2 w·s at the same time, and W mustattest in presence of T. Estate of Parsons (CA ·80 ): 3w·s, 2 named in will. Under cal probate code §

51 gift void unless 2 other w·s, one disclaims to getaround it. Purpose of §51 is to protect the T from fraud and U I at moment the wil l is executed, by insuring 2 w·s are

present who would not be financially motivated to join in a

scheme. W·s can receive up to amount they wouldhave gotten in intestacy. §51 is a Purging Statuteswill remains valid, but any devise to an attesting w isvoid, takes nothing, goes by intestacy. Maj.- statutespurge witness only of benefit he receives that exceeds

benefit he would have received if will had not beenexecuted (CA), MA- interested witness gets 0 unless2 other w·s. UPC §2-505: dispenses w/ rule. Ayperson generally competent may be a w, a will or a nyprovision thereof is not invalid if Order of Signing W must attest after the T has signed the will.Signature: t·s intent. Penn Wills act.Liability of Attorney: safeguards: order of s igning,signature, addition after signature, delayed attestation

(UPC requires reasonable).Attestation Clause: permits probate when wforgets or dies before T. Not an affidavit. Facilitatesprobate by providing prima facie evidence that the Tvoluntarily signed w/ w·s. General philosophy of courts should favor giving effect to an intentionalexercise of power to determine successors inownership. Signed at time of wi ll executionself-proving affidavit indicating the procedure w/which will was signed. Signed after execution. At endof will, sworn before notary that will duly executed.Conclusive proof for probate. UPC §2-504 authorizes 2 forms: (a) allows combined attestation



clause / self-proving affidavit (one sig by each w). (b)aurhotizes self proving aff to be affixed to a willalready signed and attested. This does not satisfy theattestation req for any state.Safe GuardingWill: WI says lawyer should keep.UPC 2-515: deposit of will in court (w/clerk) forsafekeepingGood Method: UPC 2-506: recognize as valid awill executed w/ the formalities required either by

the state where T was domiciled at death, the statewhere will was executed, or the state where T wasdomiciled when executed, some states follow neitherso you should (1) fasten pages securily w/exactnumber of pg·s, certain T has read and understands, 2disinterested w·s w/ notary, ask 3 questions (yourwill, read/understand/dispose of prop according toyour wishes?), do you request w·s signing, allw w·sto see T sign, one w reads attes t aloud, each w signs,attach spa.Alternatives to Strict InterpretationCuritive doc·s- designed to cure inequality(1) Substantial Compliance If will is in substantialcompliance w/ the law, may be probated. Look tosee if the formalities that they did go throughfollowed the intent of the legislature(channeling/evidentiary). Whether doc expressed thedecedent·s intent and does its form sufficiently

approximate Wills Act formality to enable court toconclude that it serves purposes of Act. Wade v. Wade:Stevens v. Casdorph: focus on the testator and whetherhis signature was identified (line of sight test vs.conscious present test)(2) Harmless Error ² Dispensing Power UPC2-503: gives court broader power to dispense w/formalities if there is c and c evidence that the Dintended the document to be his will, revo, addition,or revival or former will. Allows a document to berewritten and probated. Even if doesn·t comply w/2-503, doc treated as executed in compliance if prop.Establishes by clear and convincing evidence that theD intended . Pavlinko: H and W signed each other·swill, each gave residual to the other, court refused torework the will. Ranney : w·s signed spa, notattestation, W wants more than she got, challenges,

will probated as it was.

HolographicWills UPC §2-502(b) ½ statesallow them. Most states require date. Most st atesallow signing anywhere. Several states require themto be entirely handwritten. A will written by the T·shand and signed by the T Attesting witnesses are notnecessary. If the signature and material portionsof the document are in the testator'shandwriting.

I ntent that the document constitute the testator's

will can be established by extrinsic evidence,including, for holographic wills, portions of thedocument that are not in the testator's handwriting.Vlalid if the printed portion could be eliminated andthe handwritten portion could evidence tes tamentaryintent. Johnson: (AZ)- law similar to UPC, filled outform he purchased at store for will d o be distributed

8 ways, 6 children challenge, win. Handwrittenportion needed to clearly express intent. Kimmel :wrote letter in poor English, expressing leavingcertain prop, one of heirs challenge, will probated.Court said gift, condition ¶if enny thing happens·,keep letter locked up.nuncupative wills (oral) in view of imminentdeath. Allowed in some states under limitedcircumstances (uttered during last sickness, to 3people who must reduce it to writing w/in specifiedtime)ConditionalWills: still valid even if condition isnot met. ´If I die from Xµ. merely a statement of the

inducement for execution of the will, which can beprobated upon death from any cause.Methodology -Analyzing Validity of WillExecution: 1.Does the document strictly complyw/ the statutory requirements for an attested will?2.Does the J recognize holographic wills? If so, doesthe document work as a holographic will? 3.Do thefacts show substantial compliance w/ the statutoryrequirements? 4.Should the will be allowed under a

dispensing statute? (statute must exist in j andtestator·s intent must be established by clear andconvincing evidence.) 5.If all else fails, try to argueconstructive trust.

REVOCATION OFWILLS: ambulatory doc(subject to modification during T·s lifetime). UPC 2-507: will or any part revoked by executing asubsequent will that revokes the previous or part or

by inconsistency, or by performing a revocatory acton the will.subsequent writing executed w/ the usualformalities (1) will (2) amendment to will or codicil(3) document revoking willInconsistency: will 2 wholly revokes 1 by incost if T intends 2 to replace rather than supplement.Subseq that doesn·t expressly revoke, but makescomplete disposition of estate, replaces previous will,subseq that doesn·t make co mplete disposition, nopresumed to revoke, but is viewed as a Codicil-supplements, doesn·t replace. C/L- revo of codicildoesn·t impact will, original remains. But if revokewill, presumed you revoke subseq codicils tooHolographic codicils. Some states observe these,allowing written changes of a will if accmp by sign.a physical act destroying, obliterating, or burningthe will (act + intent) Tmust have intent torevoke the part of the will. If not T, T must beconscious presence by direction. H arrison: T calledattorney to revoke will he had (she had one too), hedestroyed, not probated bc couldn·t find hers eitherso assumed she revoked.Presumptions: if evidence establishes that T hadpossession of will before death and it·s not found,presump that T destroyed it. If destroy copy of wil l inyour possession, presump arises that you have

revoked and all duplicates are revoked. Can berebutted (bop on proponent of will, must co nvinceabsence not due to destruction or revocation). AZdoesn·t rebut presump, FLA rebutted where H livedin house and couple had been fighting before she died.Thompsan v Royall : writes on back that it·s void, signs.Not proper revocation VA, intent was clear but actwas not, revocation of a will by c ancellation w/in themeaning of the statute contemplates marks or linesacross the written parts of the instrument or aphysical defacement, or some mutilation of thewriting itself w/ intent to revoke. UPC 2-507:cancelling doesn·t have to touch words, words of cancellation must be written on will, not on separatedoc.Probate of LostWills In the absence of a statute, awill that is lost, destroyed w/o the T·s consent, ornot destroyed in conformity w/ a wills statute can

be admitted to probate if its contents can beproven. contents must be proven by c lear andconvincing evidence ² e.g. a copy in the lawyer·soffice. A few states prohibit unless the will was eitherin existence at T·s death (and destroyed after) orfraudulently destroyed during T·s life.Partial revocation by physical act: some statesdon·t allow bc of fraud, must be revoked by anotherinstrument. Will must be admitted to probate inform of original. Some states not permitted whereintent and effect of the change would result in asubstantial enhancement of another bequest(restatement disapproves of approach)

Revocation by Operation of Law: ChangedCircumstancesDivorce (Maj.) revokes any provision in decedent·swill for divorced spouse (min): revocation only if accompanied by prop settlement, only to wil ls notnonprobate. UPC: applies to nonprobate, jointtenants, transferring interests of former spouse intoequal tenancies in common, as if disclaimerMarriage: Omitted Spouse : if T executes will and

subsequently marries, Maj. of states give spouseintestate share unless it appears from will thatomission was intentional, or ss provided for bytransfer outside the will, or ss waived rightOmmitted Child: Pretermitted Children Maj. statutesgiving child born after execution of parent·s will, andnot provided for in will, a share of parent·s es tate.Min.: C/L marriage followed by birth of issuerevokes a will executed before marriage (notfollowed by UPC). MO- no extrinsic evidence toshow intent, must appear intentional, MA- child takesunless it appears that omission was intentional and notoccasioned by mistake, extrinsic evid al lowed. UPC:no extrinsic evid look to will only. If T has apredeceased child who is neither named, nor referredto in will, then the naming of the next degree of issuein line of descent will successfully preclude issuemore removed from the T from invoking the statute.

Where an issue of child is named or referred to, butchild is not named or referred to, then the T·s child ispretermitted, if they survive Method: Look for revival statute first. If there is

none, use DRR

Dependent Relative Revocation (DRR)If T purports to revoke will upon mistakenassumption of law or fact, revocation is ineffective if T would not have revoked will had known the truth.DRR is used to carry outT·s true intent. If court finds T wouldn·t have destroyed will if he knewnew one was ineffective, crt,will cancel revocationand probate destroyed will. The mistake and thesubsequent revocation must be part of thesame scheme (´relativeµ). Courts have held itapplies only:(1) alternative plan of disposition fails(make new will, tear up old one, new one fails); or

(2) mistake recited in revoking instrument; or wheremistake est by c/c evid . Carter v. First M eth Church of

Albany (GA): will found w/ handwritten instrumentestablishing diff scheme of disposition. Pencil marksthrough will. If it is clear that cancelling of one andmaking another were part of 1 scheme, and therevocation of the old was so related to making of newas to be dependent on it, then if the new is not madeor is invalid, the old will be given effect. If old notdestroyed, trying to make a new one won·t reviveold. Estate of Alburn: WI T made will 1, will 2revoked 1, destroyed 2 under mistaken belief that 1could be revived. The law of the state in which the Dwas domiciled at death controls, court invoked DRRand made revocation of 2 ineffective was ok shown byevid, no revival in WI.Handwriting: standing alone, handwritten wordsare insufficient, crossing out name and writing new

one isn·t valid holographic will unless the whole thingis handwritten. Written changes not valid in statesrecognizing holographic wills. will says 100k tofriend, crossed out put 250k, if juris does notrecognize partial revo, ignore give 100k, if they do,gift revoked, but maybe DDR.REVIVAL When a 2d will revokes a 1st by eitherexpress clause or inconsistency, and later the 2d isrevoked. M aj. Rule: 2 may revoke 1 at the time that 2is executed. When 2 is revoked, only way that 1 will

be revived is where the testator so intended (proof of circumstances surrounding revocation of 2 or oraldeclarations made contemporaneously wherew/).



M in. Rule: upon revocation of 2, regardless of testator·s intentions, will 1 is not revived w/o will·sact formalities (re-executed, republished in aproperly executed codicil) WI. Other : pure revival-will number 1, will number2 (will number 2 does notrevoke will number 1 until time of death), if 2 gone,will 1 survives (English C/L).UPC Presumptions: (a) if subseq will that whollyrevoked prior will is revoked by revocatory act,

previous will remains revoked unless revived.Revived if testator intended (presump that will 1 notrevived). (b) if subseq will that partly revoked priorwill is revoked, revoked part of prior will is revivedunless it is evid that T did not intend revival (presupthat part of will 1 is revived). (c) if subseq will isrevoked by another will (loose term) prior willremains revoked in part or in whole unless revived(presump that will 1 not revived). Presump thatwholly revoke will remains revoked, partlyrevoked will is revived.

COMPONENTS OF AWILL: possible for docs andacts not executed formally to have the effect of determining who takes prop. 2 doctrines have thiseffect in that they permit extrinsic evid to resolve theidentity of persons or prop.(1)Incorporation by Reference: UPC 2-510:Any writing in existence when will is executed may beincorporated by reference if language of willmanifests this intent and describes writing sufficientlyto permit its identification. Intent: T must haveintent to incorporate writing Identification: Tmust identify writing to be incorporated \ w/sufficient specificity so that no other documentcould reasonably be referred to by that description.Clark: notebook of possessions incorporated into will.Painting to Ginny Clark as provided in notebook.Anything she added after date she signed secondcodicil would not be incorporated.(2) Independent legal significance: if B or propdesignations are identified by acts or events that havea lifetime motive and significance apart from theireffect on the will. Aka doctrine of nontestamentaryacts. ´I give contents of my desk or carµ doesn·tmatter that T doesn·t describe w/ particularity even

if they get a better gift. UPC 2-512: a will maydispose of prop by reference to acts and events thathave significance apart from the effect on thedispositions made by the will, whether they occur

before or after the execution of the will or before orafter T·s death (execution or revo of another indiv·swill is such an event).Integration of Wills All papers present at time of will·s execution intended to be part of will areintegrated into will. Invalid instruments included. 1document. No in INRepublication by Codicil A will is treated asreexecuted (republished) as of date of codicil. Only

where updating will carries out testator·s intent. you canonly republish things that have been valid prior wills ² no bootstrapping.SeparateWriting Identifying Bequest of Tangible Prop: UPC 2-513- regardless of

holographic will statutes, a will may refer to awritten list disposing of non-currency prop notspecifically disposed of by the will. signed by the T;describe items and devisees w/ rsble certainty. may

be executed after the will and altered after its

preparation. can have no ind significance. Johnson: validholographic codicil incorporated the prior will byreference and republished and validated the prior willas the date of codicilActs of Independent Significance Permits useof e/e, facts, and circumstances outside of will, toidentify will beneficiaries or prop passing under will.

have lifetime motive and significance apart from

effect on will, gift will be upheld

CONTRACTS RELATING TOWILLS: governed by K law, and wills are governed separately. If leaveswill that doesn·t comply w/k, will probated by the kB is entitled to enforce the k by const. trust.Contracts to Make aWill:.in many states, must

be in writing. If no sp, promisee entitled to revievevalue of services rendered (quantum meruit). Value

D put on services in oral agreement is evid of thereasonable value of services (promise to leave you ½my estate). In some states, oral k to make a will isspecifically enforceable provided the terms areproved by c and c evid, rendition of services is whollyreferable to K; services of such peculiar value topromisor as not to be estimated or compensable byany pecuniary standard.Contracts Not to Revoke aWill JointWill one instrument executed by 2 persons asthe will of both When 1 T dies, instrument isprobated as the T·s will, when other dies, instrumentis probated as other·s will. Mutual (reciprocal)Will: separate wills of 2 or more persons thatcontain similar or reciprocal provisions Joint andMutualWills: terms used to describe joint willdevising prop in accordance w/ a K. Mutuality refersto K, not to reciprocal provisions of sep wills. Notenforceable unless c and c evid and mere execution of either kind doesn·t give rise to a presump of k not torevokeUPC 2-514: contracts concerning succession: kto make a will or devise, or not to revoke a will, or todie intestate, may be established only by (i) provisionsof a will stating material provisions of the k, (ii) anexpress reference in a will to a k and extrinsic evidproving the terms of the k, or (iii) a writing signed bythe D evidencing the k. Putnam: FL D and formerspouse signed mutual wills stating that neither wouldchange the manner in which residuary was dispersed.W died, H remarried. New W wants share. Gaveshare to new W bc FL law favors ss. Pretermittedspouse statute: marries after making a will andspouse survives, receives equal share in value to thatwhich the survivor would have received if T had died

intestate unless: provision made for or waiver byprenup/postnup agreement, souse n ot provided forin will or will discloses intention to make provisionfor spouse. Maj. view: third party B·s prevailover secondW. ss·s rights only attach to propowned by D spouse, but bc of k, D spouse didn·t haveequitable title. When surviving T accepts benefitsunder k will, an equitable trust imposed upon prop infavor of k B·s. when accept benefits, T becomesestopped from making a diff disposition. Whensurviving T breaches the will k, the k B·s are entitled

to judgment creditor status.

Will Substitutes: Nonprobate Transferseach reserves to the owner complete lifetimedominion-mass substitutes life ins, pensions, jointaccounts, revocable trustsContracts w/ Payable-on-Death Provisions valid in agreements that are ins k·s or suppl. agmnts

to ins k. traditional rule: pod·s in k·s other than life insk·s invalid. Today : widely accepted.nontestamentary. UPC 6-101: non probatetransfers- authorizes pod·s, npt (ins k, employmentk, pension, trust, marital prop agreement,mortgage). Money ceases to be payable if B dies

before payment. Silent on survivorship, antilapsesubstitutes the issue of the named B who doesn·tsurvive D. if the k permits the owner to change the B

by will, owner may do so, but if power is notretained, UPC is silent. M aj: says you can·t do it.Wilhoit: W got 5k from ins co when H died Wentered agreement w ins co to keep 5k invested

w/clause that brother would get it, but he died 20 yrs before. Left it to grandson in will. Pod invalid bcdidn·t comply w/ statute of wills (not in an ins k soinvalid), can·t change B by will a lone. H illowitz: Wwas supposed to get interest in partnership when Tdied. Executors challenged provision in k as attemptto make testamentary gift, court upholds as a k.modern rule: many instruments which provide for thedisposition of prop after death don·t have to conform

w/ statute of wills. Cook: D is B of life ins, divorced,H remarries, leaves to new W in holographic will,policy says only change B by wr itten notice to ins co.to D. M aj.: have to comply w/ co policy. Exceptions:(1) co waves strict compliance, issued new (2)

beyond power of insured to comply literally w/requirement, court may treat change as legally made(3) if insured has pursued the course pointed out byreq, but before new certificate issued, dies, courtmay treat as changed and grant equityDivorce. Maj: Unlike will, k not revoked bydivorce. UPC 2-804: changes this, designations of relatives of ex spouses are also voidedMultiple-Party Bank Accounts (look morelike gifts) more than 1 person named on accountfrom inception. Joint/Survivor Accounts: A andB have power to draw on account and survivor owns

balance after death of 1. UPC calls it joint tenant w/

right of survivorship: belong to parties in prop to thenet contribution of each to the sums on deposit. B can

be changed by will. Payable-On-Death Account:depositor and B, B not allowed to draw on theaccount but entitled to the balance upon A·s death.Agency-convenience Account: dep and anotherwho has access on behalf of dep. B has power to drawon the account during A·s life for the benefit of A,

but does not receive the balance upon A·s death.Savings Account Trust (Totten Trust):functions as pod account, B deposits money as trusteefor A. A entitled to balance when B dies, no power todraw on account. B retains the right to revoke thetrust by w/drawing the funds at any time during hislife. Franklin: JA to sister when caretaker, changed,

bank didn·t, went to new caretaker. Extrinsic evidadmissible to show intent was not to create joint

tenancy. Lack of don. intent must relate back tocreation of JT. Court said intended to be aconvenience account. UPC 6-215: says creditors canreach pod bank accounts and jba if estate insufficient.Safety Deposit Boxes: presumption of joint access not

to joint ownership, but can be found by c and c evid

Joint Tenancies: death of 1, survivor owns propabsolutely, gets marketable title, freed of anyparticipation by decedent. Jt can·t devise his share bywill, must sever the tenancy first, then deviseportion. At death, jt·s interest vanishes, nothing forcreditor to reach, so creditor must seize before death.Death certificate rather than probate decree sufficesto transfer title.REVOCABLE TRUSTS: A revocable, inter vivostrust is private and most flexible of all wi ll substitutes

bc donor can draft the dispositive provisions and theadmin provisions precisely to donor·s liking. Trust

settlor transfers legal title to prop to another person,trustee (which could also be settlor, gets incomeduring life and remainder/principal distributed towhom settlor decides) to hold in trust for future

benefit of another, and settlor retains power torevoke, alter or amend the trust and right to trustincome during settlor·s lifetime. Upon death, assetsare distributed or to be held in further trust for B·s.Trustee has fiduciary duty to B·s: loyalty andprudence in investments. Typical format: involvingdeed of trust (someone else is trustee), same asabove. Revocable deeds in land should never be used.Farkas: interest of a B under a trust who must survive



the settlor is a contingent equitable interest inremainder. Reiser : where a person places prop in trustand reserves right to amend and revoke, or directdisposition of principal and income, the settlor·screditors may, reach in satisfaction of the settlor·sdebts, to the extent not satisfied by estate, assetsowned by the trust over which settlor had suchcontrol at the time of his death (not over those hedidn·t control)

Restatement of Trusts §330: a trust is revocableonly if the settlor expressly reserves a power torevoke, and the terms of the trust strictly define andlimit the resreved power of revocation, whenreserves power but doesn·t specify mode, power can

be exercised in any manner which sufficientlymanifests the intention of the settlor to revoke.UTA §602: may be revoked unless the terms of thetrust make specified manner exclusive, by a will orany other method manifesting clear and convincingevid of intentFunding you must fund the trust w/ a ćorpusµ or´res.µ (prop)2 inquiries to establish a valid Inter VivosTrust (1) whether B has an interest in prop uponexecution of trust (2)Whether P·s control over stockwas akin to that of a trusteeRevocation of Trust: At C/L, where trust

expressly states the methods through which the trustcould be revoked, those methods were exclusivemanner of revocation of that trust. In order to havepower to revoke the trust, the power must bereserved in the trust.Pour-overWills: will devising the residue of anestate to an existing inter vivos trust to be held underterms of trust. All assets are subject to unified trustadministration. Incorporation by Reference: instrumentmust be in existence at time of will·s execution.Independent Significance: will may dispose of prop byreferring to some act that has significance apart fromdisposition of probate assets, trust doesn·t have to bein existence when will executed, but must have assetsin it before T·s death.UPC 2-511- UTATA- testamentary add·s totrust: (a) will may devise prop to the trustee of a

trust established or to be established (i) duringlifetime of T, (ii) at T·s death if the trust is identifiedin the will and has terms set forth in writteninstrument other than will. The devise is not invalid

bc trust is amendable, or bc trust w as amended afterexecution of will. (b) unless will says otherwise, propdevised to a trust described n a is not held under atestamentary trust, but becomes part of trust towhich it is devised, (c) unless will says otherwise, arevocation or termination of the trust before T·sdeath causes the devise to lapse. Does not require that

some prop be transferred to intervivos trust during lifetime,nor does it require that the trust instrument be executed

before or concurrently w/ will. M ayo

Unfunded Life ins trust. Valid. Advantages:Prop management by a fiduciary; keep title clear;income/gift taxes; dealing w/ incompConsequences of Death of Settlor: Costs;

Delays; Creditors; Ancillary Probate; AvoidRestrictions Protecting Family Members and Placedon Testamentary Trusts; Choose the law of another

jurisdiction to govern; Avoid will contests and mult.probate; Estate taxation; Control a ss·s disposition;Custodial trusts (some states);

CONSTRUCTION OFWILLSInterpretation of Wills: Maj.: plain meaning rule(intent, no extrinsic evid/no reformation). Noextrinsic evid of me aning M ahoney: only wheretestamentary language is not clear in its application tofacts that evid may be introduced as to thecircumstances under which the T used that language

in order to shed light upon its meaning. Where nodoubt as to prop bequeathed or the identity of the Bthere is no room for extrinsic evid. Extrinsic Evid: admissible to explain any ambiguity arising on theface of a will, or latent ambiguity which does not soappear. allowed for misdescription; personal usage;statutory reasons ² dependant relative revocation-harmless error (c/c ev); scrivener·s error; executionof a will; latent ambiguity; Russell , Fleming: e/e for

improper execution sex. Patent Ambiguity: face of will as to meaning of provision, T·s intent is to be ascertained from thewords of the will (and circumstances of executionmay be taken into account). Not allowed for intentunless there are 2 susceptible meanings.Latent Amb: not apparent on its face but appearswhen the terms of the will are applied to the T·s propor designated B·s. any evid can be brought in to showthe existence of an ambiguity. After an amb exists,e/e be used to show the meaning of an ambiguity.T·s intent shown ONLY through circumstantial ev ² no direct ev.Equivocation: where a description fits 2 or moreexternal objects equally well (same name), directexpressions of T·s intent are admissible. Misdescription: of prop or person, does not makethe instrument inoperative, but a fa lse description

may be strickenPersonal Use Exception T always referred to aperson in an idiosyncratic mannerCorrecting Mistakes Generally, courtsWILL NOT correct mistakes in documents (C/L). Erickson

² marriage; ct allowed e/e of intent. ExceptionsInsane Delusion; DRR; mis-description, fraud, UI.Restatement: allows reformation of donative doc·sif establish mistake of law or fact, and what D·s intentwas.evid of the scrivener·s error admissible if scr errand intent can be shown by c/c ev.ANTILAPSE STATUTES: substitue other B·s for thedead B if certain requirements are met. Usuallydevisee must have certain relationship to T, if so,goes to his issue. Applies to lapsed gift only if thedevisee has relationship. ASK: alternative B? Is

original B w/in lineage? Does B have issue? No lapselanguage?Process: When B predeceases T (or disclaimer,homicide, etc) issue of B will take if they survive by120 hours. Only descendents of grandparents, notspouses. Generally, words of survivorship in the devise

indicated intent that the anti-lapse statute not apply but(1990 )changed this.Nonprobate Transfers. POD K law, 3d pty

beneficiaries not req to survive and may pass K rightsto heirs or devisee. Revocable Trusts no req of survivorship for remainder. Joint Tenancyantilapse statutes cannot apply bc the interest vanishesat death.Death of B Before Death of T C/L: default rules, apply unless the will provides whathappens when B predeceases T. If devisee does notsurvive T, devise lapses (fails) and goes to T·s

residuary devisee or heirs (in absence of res devisee).If a specific or general devise lapses, devise falls into theresidue. No-residue-of-a-residue rule If deviseof entire residue lapses, heirs of T take by intestacy. If a share of residue lapses, lapsed residuary share passes

by intestacy to T·s heirs. UPC 2-604(b): overturnsthis in maj. of s tates.Class Gift If devise is to class of persons, and onemember of the class predeceases the T, the survivingmembers of the class divide the gift. Restatement:the presumption is that the named indiv and thegroup form one class. UPC 2-605: almost all statesapply antilapse to class gifts. [antilapse] check for

´group mindedµ lang. A gift to Á and the children of Bµ is a gift to ind and class in absence of other factors.Thus, if A dies before T, his share lapses and does notpass to children of B.íf he survives meµ- evid that statute doesn·t apply(maj), 1990 UPC reverses, applies to step childrenalso.Void devise: Where devisee dead at time willexecuted, devise is void

Changes in Prop After Execution of Will:Specific Devise: specific item of T·s propGeneral Legacy: $. If not enough for bequest,assets must be sold to satisfy B·s claim.Demonstrative: gen legacy payable from specsource (10k from sale of GM stock)- if T sold stock,no ademptionAdemption by Extinction: T makes spec devise

by will and subsequently changes prop devised, sells,gets rid, T subsequently dies w/o changing will, specdevise adeemed (real prop). Fails.Identity theory: when a T disposes, duringlifetime, of subject of specific legacy or devise in awill, legacy or devise is held adeemed, T·s intentdoesn·t matter. C/l merely examines where prop islocated at time of death.. 69UPC uses id theory, 90version adopts intent approach: creating a mildpresump against ademption, party claimingademption has bop. Juris· following identityExceptions: classify the devise as general ordeomonstrative rather than specific (no ¶my·), classifyinter vivos disposition as a change in form, notsubstance (corp merger or reorg, B takes stock of new), construe the meaning of the will as of the timeof death rather than as of the time of execution (carowned at death), create exceptions (ademptionrequires voluntary act of the T).UPC 2-606: non ademption- unpaid proceeds of sale, condemnation, insurance (4 states) .Bank account:closed, CDs purchased adeemed.Stock splits v. dividends: absent contrary intent,a devisee of stock is entitled to additional sharesreceived by T as a result of s tock split (different fordividends)- UPC doesn·t followDoctrine of Satisfaction Transfer in lieu of a

devise (spec and gen). when T makes trnfr afterexecuting will. Depends on intent, but rebuttable.Only to general pecuniary bequests. Many states:presump reversed unless T puts it in writing at thetime of giftAbatement T attempts to give away more prop inthe T·s will than the T is actually able to give.Intestate, residuary, general, specific.Exhoneration of Liens presumed, absent contrarylang in will, that T wa nted debt to be paid out of

residuary. UPC 2-607 reverses.

TRUSTSTrstee, Res, BT: will never fail w/o a trsteeR: will not survive, need some prop in itB: no, must be a B to force the trstee to do something(charitable trsts don·t have specific ones) private:exceptions- animals, mausoleums, otherwise you

have to name an individual, group of individuals thatare easily definable. If fails- resulting trst, reversionthat goes back to S·s estate or S. dispositive provisionsfix the B·s interests. Administrative provisions fix thetrstee·s duties and powers.inter vivos trst created by declaration of trst duringS·s life, where the S declares he holds certain prop intrst, or by a deed of trst, where the S transfers propto another person as trstee, must be delivered. Theremaindermen have equitable title to remainder, nomerger of title. No res required if S executes pourover will.



Trstee holds legal title to the trst; the beneficiarieshave an equitable interest. fid duties. Trstee mustaccept the position to become liable. trst will not failfor lack of a named trstee. If created by deed of trst,´passiveµ or ´dryµ trstee w/ no duties causes trstto fail. Duties: fairness in investment decisions, keeptrst property separate from own, keep accuraterecords.Creation of a Trst creation of 1 or more equitable

furture interests as well as a present interest in theincome. No particular form of words. Did S manifest

an intention to create trst. Where S is T an oral

declaration of trst is sufficient, but i f real property, must be

in writing. A transfer of prop w/ intent to vest beneficial ownership on third person is sufficient tocreate trst. Trstees have a duty to administer trst forthe sole benefit of the beneficiaries ( Jiminez).Precatory Language wish or desire expressed intrst that does not create a legal obligation.Equitable disharge person devises prop, subject topaymt of $ to another, T creates equitable charge, nottrst. no fiduciary relationship. H ebrew U : creation of trst requires statement declaring donor as trstee- it isnot suff to declare himself donor, must manifest anintention to impose on himself enforceable duties of atrst. nature trst will not be used to effect trnsfr whichfails as iv gift for lack of delivery. ok w/ const.

delivery for gift- Restatement viewRevocable Trst: testamentary trust, courtsupervises and trstee must account to courtNecessity of Trst Prop TBR res may be anytransferable int in prop (contingent remainders, lifeestates, royalties, life ins) U nthank ($200).Resulting Trst: an express trst fails or makes anincomplete disposition; one person pays the purchaseprice for prop and causes title to be taken in name of another person who is not natural object of purchaser·s bounty of purchaser ($ in RT). Onceresulting trst is found, trstee must reconvey prop ondemand. Statute of frauds N/A.Special Needs Trsts: trst that is going to mesh w/the government benefits that the child is entitled to,need to have language in the trst, irrevocable, must

be impossible for the child to ask for/have control

over benefits, trstee must have full discretion, makeclear not a support trst, but special needs. Don·t giveto another family member on behalf of the ch ild.Gratuitous Trst: S has to give the trstee the prop(has to be delivery), S, tr stee and sole B cannot existas same. Reasons for one (1) probate avoidance, (2)want someone to have a successive interest in a prop(3) asset management (4) tax avoidancePet Trst: IN: animals have to be in being at the timethe trst has been created, ends when the last one diesConstructive Trst equitable remedy used toprevent unjust enrichment. A confidential orfiduciary relationship; an express or implied promise

by the transferee; a tr ansfer of prop in reliance on thepromise and unjust enrichment of the transferee.fraud, murder, UI, breach of k not to make will, oraltrsts that violate sof, secret testamentary trst,mistake, medicaid

Change of Position If donee, in reliance on gift,changes position so much that inequitable to precludetrfr, ct will impose eq conveyanceEffect of Death of Donor if nat object; const trstBrainard (trst) expectancy cannot be subject matterof trst and an attempted creation, being merelypromise to transfer prop in future, is invalid unlesssupported by consideration. (not ok as tr st). Nofuture profits, selling stock- T: income, B: profitsSpeelman (gift) All that was necessary to be establishedwas an intention that the title of the donor bepresently divested and presently transferred as statedin the letter. Future profits, distinction may boil

down to whether there is something assignable (OKas gift).Honorary Trst The trst remains in the trstee·sname w/ his conscience to dictate the trst·s use.Noncharitable, nonhuman purpose. Searight (dog).Grantor Trust: trust in which the income is taxable

bc the S has retained substantial controlOral Inter Vivos Trsts of Land Where owner of int in land transfer it inter vivos to another in trs t for

transferor, but no writing outlining agreement asrequired by SOF and transferee refuses to performtrst, transferee holds int upon conste trst fortransferor.if there exists a confidential relationship between theparties- a confidential relationship must be more thana parent/child relationship; must be rela tionship of trst and confidence. H ieble: son in a confidentialrelationship w/ mother, enforced. Pappas: getting adivorce, conveys to son, son won·t give it back, musthave clean hands, can·t recover bc of fr aud.Secret Trst: trst has been created and no one knowsthe terms except for settlor and trstee, can·t hold f orpurposes of unjust enrichment. transfer in will w/accompanying trst, but no indication of trst·sexistence. (const trst)Semi-secret Trst: indication of the trst·s existencein will, but no identifiable beneficiaries or purpose. The

trst will fail. It will cause a resulting trst intransferee. Olliffe: reverend wells ´will know what todo w/ thisµ- void- goes to resulting trst. In England both are enforced by constructive

Discretionary Trst trstee has discretion overpayment of either tincome or principal or both. actin good faith, honestly, and for purposes settlor statedin trst. Duty to inquire (M arsman ² con trst). B·screds can·t reach prop in a discretionary trst untildiscretion exercised by trstee. SPRAY- mustdistribute all current income, but descretion as towho gets what $Mandatory Trst trstee must distribute all income

by predesiganted distributions.Spendthrift Trsts: only available to those w/wealth. Not for those who have created a trst forthemselves (made themselves wealthy). Some states

have statutes which protect those trsts which are self settled (protective trsts, but cannot be createdfraudulently). Beneficiaries cannot voluntarilyalienate their interests nor can their creditors reachtheir interests. Exceptions: self settled trusts, childsupport/alimony, furnishing necessary support, fedtax lien, excess over amount need for support, %levy. Shelley: policy requires that interests of B of atrust should be subject to claims for cld sppt and ali,

but H had no interestDynasty/Perpetual Trst: more states are repealingtheir rules against perpetuities so people createprivate/charitable trst, a technique which allowscreator to pass wealth from generation to generationto avoid taxes(disclaimer ):AL/AZ/CO/DE/FL/ID/IL/ME/MO/N

J/OH/WI/VISupport Trsts Trsts making payments as necessary

for B·s support IncentiveT

rst: want to makechildren more responsible. Education, moralincentives, pursue a career. W Buffet: leave themenough that they can do anything but not so much

that they can do nothing

Modification and Termination of Trsts If the settlor and all beneficiaries consent, a trst can bemodified or terminated, even if the trst contains aspendthrift clause. A trst will normally terminate, (1)revocation by settlor, (2) death of last life income B,(3) at the end of a prescribed number of yrs, (4) whenpurpose of the trst has been accomplished. May beprematurely revocated or modified when they are

revocable, but must follow terms of trst or they will be in violation. If n o power to revoke, need consentof beneficiaries to make any changes, or if there has

been invested power in someone else, whencircumstance not know by settlor, after settlor diespurposes become frustrated.Material Purpose Doctrine (termination)Claflin Doct. A trust cannot be terminatedprior to the time fixed for termination, even

though all the B·s consent, if terminationwould be contrary to a material purpose of the S. generally: can·t terminate if: spendthrift trust,if B is not to receive principal until attaining a certa inage, if discretionary, or if it is a trust for support of B. active trst may not be terminated, even w/ consentof all beneficiaries if material purpose of the settlorremains to be accomplished.Modification: if S and B·s consent, if S dead (eng)trst can be terminated if all B·s are adults andconsent, or modified or term if trst is on behalf of incompetent, minor. US: S·s intent can·t be set asideafter death, and purposes would not be frustrated bydoing so. Where purposes for which trust has beencreated have been accomplished and all fo the

beneficiaries are sui juris, a court will, on applicationof all of the beneficiaries or of one possessing theentire beneficial interest declare termination.

Restatement: crt will not permit or direct thetrustee to deviate from the terms of the tr st merely

because such deviation would be more advantageousfor the B than complianceadministrative problem -trstee can petition courtfor a change. Succ;essive interests

Charitable Trsts: must have charitable purpose:

(often governed by the IRC) education, religious,community benefit=charitable benefit, i.e. relief from poverty; advancement of education;advancement of religion; promotion of health;government or municipal purpose; or purposes

beneficial to the community as a whole. A trs t fromwhich the income is to be paid at s tated intervals toeach member of a designated segment of the public,w/o regard to whether the rec ipients are poor or inneed is mere benevolence and not a charity. No

ascertainable B: may be able to pick them dependingon the purpose of the trst. Shenandoah Valley National

Bank v. Taylor (Candy Trst): wanted the trst to giveout money to 1, 2, 3 grade on Easter and Christmas.Charitable trst vs. benevolent trst (acts dictated bymere kindness, good will, or a disposition to dogood- had to comply w/ rule of perpetuities), didn·there so cousins get the money.Where gift in merefinancial enrichment, a trst is sustained onlywhere court finds from the entire context of the will that the ultimate intended recipientswere poor or in needMortmain statutes: permitted spouses and cc toset aside death bed will making gifts to charities (haverepealed in all states but GA)Modification of Charitable Trsts ² Cy Pres:means ¶as nearly as possible·. Can work outside therule of perpetuities. In re Neher : small town wanted

her home turned into a hospital, already had one,looked to general purpose (helping the city), nowused as administration building for hospital.When using cy pres, ask if it·s impossible, impracticable,

or illegal to accomplish trsts· purpose.Waste: allowfor modification. Presump: rather than the trsteehaving to come in and prove general and charitableintended, presume under UPC/UTC that the settlorhad general purpose, burden shifts to find specificintent. Restatement: cy pres if property is given intrust to be applied to a particular charitable purposeand it is or becomes impossible or impracitable orillegal to carry out particular purpose, and if the S



manifested a more general intention to devote theproperty to charitable purpose, trst will not fail butthe court will direct the application of the prop tosome charitable purpose which falls within thegeneral charitable intention of the S. UTA: providesthat a court may apply cy pres if a particularcharitable purpose becomes unlawful, impracitable,impossible to fulfill, or wastefulAdministrative Deviation: courts more wiling to

deviate from administrative terms of trust, ratherthan dispositive terms. A court will permit deviationin admin terms of a trust when compliance woulddefeat or substantially impair the accomplishment of the purposes of the trust. If trust losing $, but there isa rule that doesn·t allow change in investment, courtmay allow to keep trust from losing $, but i f gettingS·s intent for disposition, must show one of the cypres requirementsRacially or gender restrictive: public-violateequal protection, private- do not. May violate state

and local race laws. Gend restricted do not violate ep

The Fiduciary ObligationDuty of Loyalty: Self-Dealing: no furtherinquiry is made as to a trstee·s motives. trstee·sgood faith and the reasonableness of his motives areirrelevant. D = settlor authorization, full disclosureto beneficiaries.Conflict of Interest: nostrict liability. no liabilityif transaction is fair and if trstee receives fair price forprop. Duties relating to Care of Prop;Duty toEarmark Prop;Duty to not commingle trst funds w/the Trstee·s personal funds;Duty NOT toDelegate;Liability for Contracts and Torts; Duty of ImpartialityUTA: exculpatory clause presumed to be result of abuse of fiduciary relationship unless trustee provesthat it is fair and that S was adequately notified.Allows for modification of trust when widow can·tlive comfortably on income, if modification willsubstantially further S·s purpose in creating the trust.Allows change of trustee if there is a lack of cooperation that impairs administration of trust, andif investment decisions have resulted in i nvestmentperformance that is substantially lower than

comparable trust, or unfitness.UNITRUST: income B is entitled not to actualincome earned by to a fixed % (allows trustee toinvest in assets that will result in capital gains, thendistribute some of principal to income B·s)

UTTAH: a trst may be created for prop w/o a will

POWERS OF APPOINTMENT Types of powers: in trust B·s are owners that givethe B the ability to determine who will enjoy/useproperty. Allows to deal flexibly with changingcircumstances in the future (law/economy)Terms: donor- person who creates the poa, usuallythe S of the trst or the T, donee- person who holdspoa, objects of power: person in whose favor thepower may be exercised. Appointee- person inwhos favor the power HAS BEEN exercised(property becomes appointive prop). Takers indefault: instruemtn may provide for people to take

in event power is not exercised, if not named,property passes back to donor.General power of appt: power which isexercisable in favor of the decedent (donee, hisestate, his creditors, or the creditors of his estate.Close to being full owner, bt no until powerexercised.Special power of appt: any power that is not ageneral power, donee is limited as to who he canselect to enjoy (power to appt among the issue of donee), allows donee do exercise the power in favorof another, but cannot appoint the prop to himself

Testamentary power: power exercisable only bywill, alternative is power exercisable by deed(exercisable power)Creation of a power of appt.to create, the donor must manifest an intent to do so,either expressly or by implication (no particularwords are necessary). Precatory words do not createa power of appt in the absence of other circumstancesindicating a contrary intent

Release of power of appt. donee cannot legallycontract to make an appt in the future. If power isreleased, look at trst instrument to see what happensto prop. All (except powers in trst or imperativepowers) are releasable in all jurisdictions. Canrelease, but goes back to takers in default, if there arenone, might go back to the donor·s estate, might nowgo to donee·s estate. All powers of appt exceptpowers in trust or imperative powers havebeen made releasable in all jurisdictionsRestatement: passes to the donee·s, if there aretakers in default and failure to exercise, goes to takersin default, also applies to ineffectively exercisedgeneral powers (blanket exercise, failure to specify,trying to exercise through a blanket exercise).Rule of Repugnancy: majority rule: if a deed orwill conveys an absolute title in fee simple, aninconsistent clause in the instrument attempting to

merely limit that title or convey to the same person alimited tilte in the same land will be disregarded.Special power: to a class, is not exercised, notakers in default? Lorring v. M arshall : sometimes courtswill imply a taker in default orExercise of a power of appt. UPC 2-608: in absence of requirement by donor increating instrument that a power be exercised byexpress or specific reference to the power, a generalresiduary clause in a will or will making generaldisposition of T·s prop ONLY express an intention toexercise if: power is a general power and the creatinginstrument doesn·t contain a gift if the power isn·texercised (doesn·t list takers in default) or, T·s willmanifests an intention to include the prop subject tothe power (if no requirement for express or specificreference, a residuary clause will exercise a GPOA if

the trust instrument doesn·t list takers in default.Limitations on exercise of special power: maj:a donee of a general power of appt can appointoutright or in further trust and can create newpowers of appt, special power- may not be able toappoint in further trst unless the creating instrumentexpressly permitsUPC 2-704: Meaning of specific reference req: if instrument creating power requires reference, it ispresumed that donors intention in requiring was toprevent an inadvertent ex of the power. Mere

blending clasue doesn·t make specific refernce, but if ex evidence shows that the donee intended to ex thepower, maybeResiduary clause: maj: does not exercise a powerof appt (either gen or special) held by t. min:exercises general power of appt unless a contraryintent affirmatively appears. NY-special if objects

Anti-lapse: gen power- yes, spec- usually no, butdescendent must be related to T/donee for antilapseSpecific reference: provides description of poa,where you got it fromExpress reference says you are exercising a powerand where you got it fromBlending clause: clause gives away all your propand all prop over which you had poaFailure to exercise: if donee of GPOA fails toexercise, the appointive prop passes in default of appt. if no gift in default, the prop reverts back to thedonor·s estate. If donee of special power fails, andthere is no gift in default, the appointive prop MAY

(if objects are defined limited class) pass to the objectof power. No takers in default left, prop notappointed goes in equal shares to the members of theclass to whom the prop could have been appointed.Imperative special POA: when creatinginstrument manifests an intent that the permissibleappointees be benefited even if the donee fails toexercise power. If a special power is imperative, thedonee must exercise it or the court will divide the

assets equally among the potential appointees (bc notakers in default listed)RESTATEMENT: changes common law- donee of special power can created a gen power in an object of special power or create a special power in any personto appoint to an object of the original special power.Exclusive vs. Non exclusive: E: if the donee canexclude entirely one or more objects of the power.Non: if the donee must appoint some amount to eachpermissible object (depends on D·s intent as revelaed

by the creating instrument- to 1 or more=exclusive).If no intent revealed, look at presump of jurisdiction(restatement- in absence of contrary intent specialpowers are presumptively EXCLUSIVE)CASES: H odell vs. I rving: 80·s SC determined right to pass prophad a constitutional effect. Shapira v. U nion National Bank: Deadhand/restatement, notion that T·s intent wants to s hould be giveneffect. Shelly vs. Kramer : when a crt i s involved, need state action,when getting involved in violating constitutional right. Lovings v.

Virginia: crt says not controlling the right to marry, just the money.Brainard : stocks interst, no res, vs. Speelman: future earningssufficient property interest

DIFFERENCES BETWEEN UPC·S2008: Inflation adjustments: the supplemental elective-

share amount under 2-202(b): 75k (was 50k). Raises $ by50% in Article II sections (partnership economic

theory).50% of the augmented estate. Share of spouse 2-102 (300k, 225, 150 was 200k, 150, 100), Share of Spouse: 2-201 (50% instead of 1/3), Homestead: 2- 402

(22500, was 15k), Exempt prop: 2-403 15k (was 10), 2-405, added new cost of living adjustment section 1-109.

Intestacy : part 1 was divided into 2 subparts. (1) ongeneral rules of intestacy and (2) on parent child

relationships (non-marital/adopted/assistedreproduction). Execution of wills: execution; witnessed ornotarized; holographic wills 2-502: amended to allow

notarized wills as an alternative to wills that are attested by 2 w·s. necessitated minor revisions to 2-504 on self

proved wills (only attested) and to 3-406- effect of notarized wills in contested cases. Class Gifts: 2-705

revised. Reformation and M odfication: new sectionsReformation to correct mistakes 2-805 and Modificationto achieve transferor·s tax objectives 2-806 brought the

reformation and modification s§ now contained in theUTC into UPC.§102(1)(A): spouse, no decedents and no parentssurviving spouse gets everything§102(1)B): spouse, surviving decedentssurviving spouse gets everything§102(2): spouse, no decedents, but parentsgets $300,000 (can be adjusted for cost of living plus ¾ of what·s left, rest goesto parents§102(3): surviving spouse has a child that is not the decedent·s$225,000 + ½ to spouse if decedents of spouse, decedent·s descendents getwhat·s left over, but spouse has their own descendents they get none§102(4) if one or more of the descendents is not the spouses, the left over goesto the rest of the d escendents§103(A)1: goes to all the descendents, if one dies, it further goes down byrepresentations§103(a)(2): no spouse, no descendentsgoes to all the parents equally§103(a)(3): no spouse, no parents, no descendents, but brothers and sisters

brothers and sisters will get it and by representation§ 103(a(4) no spouse, no descendents, no parents, no brothers or sisters, butgrandparents or representatives of such½ and ½ for both sides of grandparents by representation§ 103(a)(5) no spouse, no descendents, no parents, no brothers and sisters, butgrandparents or representatives of such goes to whichever side died§103(b)(1) none of the above, deceased spouse with his or her children(stepchildren)would go to stepchildren by representations§103(b)(2) none of the above, deceased spouse(s) with his or her children(stepchildren)more than one deceased spouse, goes to stepchildren§ the last stop is that it escheats to the estatechange in language as far as if it goes on, as far as by capita and deceased spousesare new.IN: one half of the net es tate for surviving spouse,½ if surviving children¾ if survived by no children

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