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Table of Contents
a. Part I - An Introduction to Death and the Law: History, Policy, Planning
i. Public Policy Introduction: Of Silver Spoons and Deadly Fortunes, 10-20 and 845-49
1. arguments for and against inheritance
2. solutions
3. current debate in America
ii. Dead Hand Control “Cold and Numbing”: The Dead Hand, 20-30
1. dead hand problem
2. valid conditions
3. limits on disposition
4. remedies when invalid condition
iii. Probate Process vs. Nonprobate To Probate or not to Probate?, 30-40
1. nonprobate terminology and assets
2. probate process
3. probate vs. nonprobate
iv. Professional Responsibility The Perils of Estate Practice: Conflicts and Malpractice, 48-
58
1. duty to beneficiaries
2. conflicts
v. Incapacity Life and Death: Choice, Incapacity, and the Law, 345-63
b. Part II - Without a Will: Intestate Succession
i. Who Takes under Intestacy: Defaulting at Death, 59-73
1. intestacy policy
2. if there’s a will
3. issues
a. spousal share
b. simultaneous death
ii. Calculating Shares: Descendant Shares: Per Stirpes, Per Capita and the Maze of
Consanguinity, 73-83
1. tiered approach
2. typical statute
3. UPC
4. definitions
5. determining who takes
6. determining how much they take
a. English per stirpes
b. Per capita with representation
c. Per capita at each generation
iii. Defining Issue: A “world full of (favored and) ill-favored children”: Legal Categories of
Children, 83-114
1. biologically
a. if married
b. if not married
c. switched at birth
d. posthumous
e. surrogacy
f. same-sex couples
2. legally
a. legal adoption
i. adopted child’s inheritance from natural and adoptive parents
ii. adult adoption
iii. adopted children and trusts
1. children adopted out of trust
2. children adopted after trust created
 b. virtual adoption
c. adoption as special power of appointment
d. wills and trusts as alternative to adopting
iv. Providing for Children: Providing for Children: Advancements, Guardians, and
Conservators, 114-120
1. advancements
2. transfers to minors
a. guardianship / guardian of the property
b. conservatorship
c. custodian
d. trustee
v. Barring Succession: Bars to Succession: Slayers and Disclaimers, 126-140
1. slayer statutes
2. abandonment
3. disclaimer
c. Part III - Wills
i. Execution of Will: Formalities and Forms: Execution, 199-218
1. why?—functions of formalities
2. what is required?
3. how to execute?
a. Common law
b. UPC
c. Meaning of presence
d. Order of signature
e. Signature
f. Interested witnesses
ii. Curative Doctrines: Curative, Clear, and Convincing, 225-35
1. themes
2. substantial compliance
3. dispensing power
iii. Holographic Wills: Informalities? Holographic Wills, 236-249
1. requirements
2. rationale
3. risks
4. conditional wills
5. In re Estate of Kuralt
iv. Revocation: “This world I do renounce …”: Revocation, 251-70, 218-19
1. revocation
a. by physical act
b. by presumption
c. by writing
d. by operation of law
i. divorce
ii. marriage
iii. children
2. issues
a. will vs. codicil
b. duplicate originals
3. dependent relative revocation / ineffective revocation
a.
4. samples problems on wills formalities
a. includes execution, revocation, amendments, revival
5. revival
a. 3 approaches
 b. will vs. codicil under UPC
6. safeguarding a will
v. Incapacity: Contests: Testamentary Incapacity, 141-157
1. general incapacity
2. partial incapacity
3. mistake vs. delusion
vi. Undue Influence: Contests: Undue Influence, 158-86
vii. Fraud, Duress, TI: Contests: Fraud, Duress, and Tortious Interference, 186-97
1. fraud
2. duress
3. tortuous interference
viii. Ambiguity and Extrinsic Evidence: Problems of Interpretation: Ambiguity and Bad
Drafting, 365-87
1. evolution of doctrine
2. admissibility
3. remedies
ix. Scope: Problems of Interpretation: Putting the Pieces Together, 271-86
1. integration
2. republication by codicil
3. incorporation by reference
x. Problems of Interpretation: Lapse, Antilapse, and Class Gifts, 387-405
d. Part IV - Non-probate Transfers
i. Will Substitutes: The Decline of Probate: The Revolution in Will Substitutes, 295-322
ii. Life Insurance: Payable-on-death (POD) I: Life Insurance, 322-33
iii. POD II: Pensions, multiple-party accounts, and joint tenancies, 333-45
e. Part V - The Limits of Testamentary Freedom
i. Marital Property Systems: Protecting Survivors: Marital Property Systems, 417-23; 455-
62
ii. Elective Share: The Elective Share, 425-38
iii. Defining the “Net” Estate and Premarital Agreements, 438-55
iv. Cutting Out the Kids, 466-73
f. Part VI – Trusts
i. Introduction, 485-98
ii. Creating a Trust I: Intent and Property, 498-518
iii. Creating a Trust II: Beneficiaries, 518-28
iv. Beneficiary’s Rights: In the style of living to which they have become accustomed:
Distributions, 533-43
v. Creditors: Keeping Creditors at Bay: Discretionary, Protective, Spendthrift Trusts, 543-57
vi. Modification and Termination: Preserving Flexibility I: Modification and Termination,
572-87
vii. Powers of Appointment: Preserving Flexibility II: Powers of Appointment, 589-91; 607-
15
viii. Loyalty: Trust Administration and Fiduciary Obligation: The Duty of Loyalty, 771-91
ix. Trust Investment Law: The Duty of Prudence, 791-97
x. The Principal and Income Problem: The Duty of Impartiality, 821-32
xi. Trust Property Rules: The Duty to Inform and Account, 830-43
xii. Charitable Trusts: Relief, Advancement, Promotion … and Perpetuity, 729-37

2. Part I - An Introduction to Death and the Law: History, Policy, Planning

a. Public Policy Considerations: Intro: Of Silver Spoons and Deadly Fortunes, 10-20 and 845-49
i. Definitions
1. probate—proving a will is valid or administration of an estate
a. ID’ing assets and distributing them
2. trust—device that separates legal and equitable ownership/title
 a. Trustee has legal ownership, since has title, and has power to control,
transfer, and possess property
b. Beneficiaries have equitable ownership
3. estate—assets held by a person when they die, called the decedent
a. trust and estates compared—they both are gratuitous transfers, meaning no
consideration is required
b. public policy is a part of limitations on gratuitous transfers
4. escheat—assets go back to the State
a. happens when intestate, or are contrary to public policy and become
intestate
5. testate—decedent has will
6. intestate—decedent doesn’t have a will
7. inter vivos—conveyance during life
8. estate tax—imposed on decedent’s estate b/f distributed to beneficiaries; levied by
fed gov’t
a. if 10 kids, then same amount of tax as if there were only 1 kid
b. usually easier to administer
9. inheritance tax
a. imposed on each beneficiary of an estate, usually levied by state
b. amount beneficiary pays depends on amount and relationship (less for
kids)
c. if 10 kids, then less tax than if there were only 1 kid, since progressive
rates
ii. The problem: arguments for and against inheritance
1. should escheat to the state
a. prevents aristocracy, since inheritance perpetuates economic disparity
b. an inheritance creates laziness and unproductiveness
c. inheritance is not merit-based, but is rather based on luck
2. respect decedent’s wishes
a. remaining family doesn’t become dependent on the State
b. encourages savings
c. encourages families to love and serve their elders
d. it’s decedent’s property and should have a choice what’s done with it. It’s
consistent with private property system.
e. doesn’t perpetuate economic disparity since the inter vivos investment in
human capital (education, connections, health) account more for
opportunity than inherited wealth.
iii. The solutions—our system uses all except destruction
1. escheat—assets go to the State; happens when intestate and no one is an heir
2. respect the decedent’s wishes—by will or some other instrument
3. fixed scheme—ie, automatically to decedent’s issue; ie, intestacy statutes
4. open season—completely unregulated; obviously a bad idea
5. destroy it—destruction during life deters the owner since it carries economic cost.
If destroy after death, then no meaningful economic cost for decedent and deprives
society of the property.
iv. The American way and the current debate
1. death tax
a. refers to both estate and inheritance taxes
b. creates a perceived injustice that you’re taking something away from
someone that you couldn’t take away in life
2. historical
a. estate tax was only used in times of war; became permanent after WWI;
b. 1950-70s top was 77%; exemption was $60K (exemption—amt available
not taxed; anything above that is taxed progressively); marital exemption
 was large; unlimited charitable deductions, life insurance considered not
part of estate; gift tax a little less than estate tax so that people would make
gifts; big loophole for trusts: dynasty trust (successive life beneficiaries
didn’t have to pay taxes b/c not transferable, so no transfer to tax. Only
original estate had to pay)
c. 1976—gift, estate taxed at same rate; makes compliance, enforcement
easier;
d. 1981—exemption went from $60K to $600K; reduced the number of
taxable estates; highest rate reduced to 55%, unlimited marital transfer
e. 1986—dynasty trust eliminated (life estate no longer exempt through
generation-skipping transfer tax, which made tax payable at end of each
life beneficiary)
3. current debate
a. Bush signed Economic growth and Tax Relief Reconciliation Act,
exempting higher and higher amounts until it’s unlimited and then
reenacting the original amount in 2011
i. Currently max exemption is $2 million estate, 13K estates taxed
ii. 2000—exemption was lower ($675K, 50K estates);
iii. Interestingly, estate tax lawyers in gov’t are most effective: they
find $2200 in evaded taxes/hr, yet 150 of them are being fired now
b. Demographics of the family
i. Families are changing, and pressure is growing on states to change
statutes qualifying certain people as spouses and children.
b. Dead Hand Control: “Cold and Numbing”: The Dead Hand, 20-30
i. dead hand control
1. the dead hand control is conditioning a gift to a beneficiary upon beneficiary acting
a certain way
2. arguments for it—should respect decedent’s intent b/c decedent could’ve
conditioned a gift inter vivos, then should be able to do it with testamentary gift.
Beneficiary has no right to receive property, and since decedent can completely
disinherit them, decedent should be able to put condition on it.
3. arguments against it—prefer that decisions are made by living, rather than dead
b/c circumstances change and need to be dealt with.
ii. Valid conditions
1. freedom of disposition is the controlling factor of gift-giving, so that intent
controls
2. the scope of one’s power to transfer at death is considered not a natural right, but
one of civil law, in that the state can regulate it. (ie, see below on limits of
disposition)
3. Restatement—§10.1 page 20, page 4 supp.donor’s intention controls the
meaning and effect of donative document, to the maximum extent allowed by law
a. reasoning is that property owners have strong right to dispose of property
as they please. Intent of the person is important, and unless there’s some
external reason for court to get involved, then it won’t unless it’s contrary
to law.
iii. limits of disposition
1. reasonable condition restraining the disposition of property will be respected by
the law
2. rule / restatement—condition on beneficiary’s gift is valid as long as the
condition does not violate public policy. This “dead hand” control is generally
upheld unless the condition:
a. is illegal activity
b. conflicts with creditors rights or spouse’s rights
c. constitutes a complete/absolute restraint on marriage or alienation
 i. but partial restraint on marriage ok if reasonable. Consider time
frame, age of intended beneficiary, unreasonable description (must
marry a Jew, but no Jews around), if already married, if no gift-
over clause (showing T’s intent, such as in support of Israel). Ok
even if requires to marry someone of a certain religion, since it
just encourages them to do so, doesn’t preclude them from
marrying in general.
ii. restatement § 6.2 1983 page 27 casebook, supp—restraint to
induce marriage of a faith is valid if the restraint does not
unreasonably limit the transferee’s opportunity to marry. Ex, son
is gay, then unenforceable provision since he can’t get married in
most states.
d. requires a beneficiary to practice a certain religion
e. encourages divorce or family strife
i. but if motive is to provide support in event of divorce, then valid.
f. directs the destruction of property
g. racial restrictions / requires judicial enforcement of condition
violating constitutional rights
i. Shelly v. Kramer, Judicial enforcement of the condition based on
race would constitute state action violating constitutionally
protected fundamental rights.
ii. state action doctrine—is the enforcement of the will by the
probate court state action? Yes. person doesn’t have a right to
inherit something, but do have right to transfer your assets
3. partial restraint on marriage is considered a reasonable condition
a. Shapira, T would give property only if son married jewish girl within
certain amount of time. If the property didn’t go to son, then it would go
to Israel. Ct found that this was a reasonable restraint b/c marrying w/in
certain religion is reasonable, considering that there were a number of
jewish women nearby for him to marry. Didn’t matter that it was possible
that father T may have changed his mind about his son marrying w/in 7
years if father was alive, since could see the situation and grant an
extension.
iv. remedies for invalid condition
1. def’n gift over clause—if beneficiary doesn’t fulfill the condition, then goes to
someone else
2. if will has gift over clause—ct will often strike the condition as void and give it
the beneficiary of the gift over clause (not the beneficiary that was subject to the
condition)
3. if will does NOT have gift over clause—ct will often strike the condition and gift
it to the beneficiary who would’ve been subject to the condition, and is now free of
the condition
c. The Probate Process: To Probate or not to Probate?, 30-40
i. Probate vs. nonprobate
1. reasons to probate
a. probate system guarantees what to do w/ some assets when don’t know
what to do w/ assets after person dies
2. reasons NOT to probate
a. fees! ct fees—find and petition court; personal representative fees
(executor and admin) atty fees—either reasonable costs or % of estate;
appraiser fees; and guardian ad litem—appt’ed to manage specific limited
affairs
b. process—proving the will is valid;
c. emotional burdens b/c of bureaucracy
 d. will is made public
3. how to avoid probate
a. nontitled probate assets—if all property is nontitled personal property,
can avoid probate
b. Small estate provisions—state statute that creates probate procedure for
estates under a certain amount and complexity. It permits expedited
probate with minimal court supervision, minimizing cost and delay.
4. note to atty on avoiding probate
a. it’s malpractice in new jersey to tell someone that they should always
avoid it; but if some clients want to do it anyway, so you have to follow
them
ii. nonprobate
1. passes under instrument other than a will, and no court is involved. If you have no
property that is subject to probate, there is no reason to probate.
2. Decedent has to take affirmative steps for property to qualify as nonprobate.
3. consequences with creditors
a. when alive, assets are vulnerable to creditors
b. when dies, a nonprobate asset is not a part of the estate, therefore not
subject to creditors—ex, life insurance and POD accounts, etc go straight
to named beneficaries
4. Types of non-probate assets
a. joint tenancy, both real and personal—decedent’s interest vanishes at
death, and person with right of survivorship is the sole owner. Technically,
no property interest passes since at death the interest extinguishes. often
are bank accts, brokerage, mutual funds, real estate.
b. inter vivos trust—inter vivos trust, not testamentary trust. Reason is the
property has to be transferred during the life of decedent in order to avoid
probate.
c. payable-on-death accounts—aka contracts with payable on death clause.
One party will distribute the property in the contract to the beneficiary.
Includes IRAs, Keogh plans, pensions with POD clause.
i. life insurance—type of POD contract, since agreement btw
insured and company that benefits will be paid to beneficiaries.
5. note on personal and real property
a. personal property—Some state statutes exempt personal property from
probate if it’s under a certain value. Otherwise it passes to personal
representative by operation of law
b. real property—passes by operation of law to devisees/heirs, but probate
is needed to perfect the title.
c. problem 1 p 38-39. H dies, and W lives. Wouldn’t need to probate the
furniture, since it’s under a certain value, the pension, gov’t bonds, life
insurance. NEED to probate the savings account in Dec’s name, and
possibly the car, depending on whose name it’s in. If it’s in Dec’s name,
then need to transfer it to W’s name. Don’t need to probate the joint
checking account where both are authorized to write checks.
iii. Probate Process
1. probate—latin, proving that the will is the real will, and not a fraud. Property
must pass by will or intestacy (administration).
a. Functions of probate are to provide evidence of title transfer, ensures
creditors opportunity to make claim, distribute assets.
b. a will can’t dispose of non-probate assets, such as joint tenancy, trust
(unless it’s a pour-over will) or POD transfers (life insurance, etc).
2. personal representative—appointed by T or court to inventory assets, manage
them during probate, pay creditors/taxes, clear title, distribute assets
 a. personal rep appointed in will: executor
b. personal rep appointed by court: administrator - duties 1) inventory
and collect the assets of the decedent 2) to manage the assets during
administration 3) to receive and pay the claims of creditors and tax
collectors 4) to clear any titles to cars, real estate, or other assets 5) to
distribute the remaining assets to those entitled. If person dies
intestate or fails to appoint executor in will then court appoints from
statutory list typically in the following order: surviving spouse,
children, parents, siblings, creditors. The person appointed as
administrator must give bond. In some states nonresident corporate
fiduciaries cannot be appointed as executor. page 31 CB
3. administration—when there is no will, but assets must be probated. Decedent
dies intestate.
a. types: supervised administration vs. unsupervised administration—the
more complex and more number of assets, the more likely to choose
supervised by the court. If doubtful it will be litigated, then go
unsupervised, and it’s cheaper, too.
b. supervising representative’s actions—many states require judicial
approval of representative in administering the estate; some let it go w/out
a court order, as long as the interested parties are adults and approved
release from fiduciary liability. Under the UPC—unless someone
demands it, ct doesn’t have to supervise
4. testate vs. intestate and real vs. personal property terminology
a. testate—real property is devised to devisees, whereas personal property is
bequeathed to legatees
b. intestate— real property descends to heirs; personal property is
distributed to next-of-kin
c. Formalists say that it is important to use certain vocab (ie – bequeath), but
the general trend is to simplify vocabulary and not separate personal
property from real property.
5. jurisdiction of probate proceedings
a. primary jurisdiction—decedent’s domicile at time of death. Will be
where will is probated or letters of admin first sought.
b. ancillary jurisdiction—real property in a different state than domicile is
subject to this. Sometimes local resident has to be representative and local
atty.
6. authorization to open probate—issued to representative authorizing her to act on
behalf of the estate
a. letters of testamentary—issued to an executor appointing them
b. letters of administration—issued to administrator appointing them
c. ie, money can get into rep’s bank account, rep can possess decedent’s car,
despite rep’s name not being on it.
7. bond—insurance for court to guarantee against the possibility that person will do
what they agreed to do. Amount is commensurate with size of estate.
a. Administrator is required to give bond, but T can waive executor from
paying it by will.
8. Forms of probate proceedings
a. informal probate / in common form—ex parte proceeding, so no notice
issued, execution proved by oath of executor or witnesses; will is probated
at once; if no one objects, it’s ok. Only minority of states allow this
b. formal probate / solemn form—(majority) notice to interested parties
given by citation; execution proved by testimony of witnesses; petition for
letters comes w/ affidavit that notice was made
9. time limits for initiation
 a. UPC—proceedings (informal and formal) must be initiated w/in 3 years
after death; otherwise presumption of intestacy is conclusive page 35 CB
b. Common law—no SOL for initiation
10. time limits for contest / creditors
a. probate ct can’t do anything after SOL, even when new evidence
discovered that will was revoked b/c jurisdiction no longer exists
b. non-claim statutes—shortens the SOL on claims against the estate
i. creditors must claim w/in months after probate begins 4 months
UPC page 35
ii. creditors must claim w/in years after decedent’s death, regardless
of whether proceedings began one year UPC page 35
iii. if creditor is known or reasonably ascertainable, creditors must
receive actual notice before their claim can be barred
11. closing the estate—judicial approval is required to relieve representative from
liability, unless SOL exists.
d. Professional Responsibility: The Perils of Estate Practice: Conflicts and Malpractice, 48-58,
page 10 supplement.
i. duty to beneficiaries—broadens scope of liability for estate attorney
1. old common law rule—beneficiary can’t sue in tort b/c duty is only to testator (or
executor after T dies); beneficiary can’t sue for breach of K b/c no privity.
2. modern rule—beneficiaries can sue attorney. Neat argument—if privity required,
then the only person who has a valid claim suffered no loss, and the only person
who has suffered a loss has no valid claim
3. Rule—beneficiaries can sue in tort b/c atty owes a duty of reasonable care to
intended beneficiaries because the beneficiaries of a will are foreseeable.
a. std of skill—lawyer has obligation to refer client to specialist if can’t
handle it; otherwise will be held to the standard of skill ordinarily
possessed by a specialist
4. Rule—drafting atty can be sued for breach of contract b/c even though there
is no privity btw drafter of will and the beneficiary, but beneficiary can make
a claim as a third-party beneficiary.
a. third-party beneficiary—nonparty to a K can sue when promisor has
reason to know that a benefit to a third party was contemplated by
promisee in making the K
b. Simpson v. Calivas, beneficiary of will sued drafting attorney for
negligence and breach of contract for failing to draft a will according to
T’s actual intent. Claims for breach of contract and negligence sustained
c. Claim for negligence sustained because attorney owes a duty to the
intended beneficiary. The duty arises out of the relation btw the parties
and the protection against reasonably foreseeable harm. Ct didn’t create
privity, but rather created an exception to privity. page 49 CB
5. Role of probate court vs. trial court (Simpson)
a. probate ct—determines validity and construction of will by considering
language of will, and can consider extrinsic evidence when intent is
ambiguous, but can’t admit direct declarations of T’s intent. A finding of
actual intent is not necessary for probate court to construe T’s intent.
b. Trial court—determines whether there’s a negligence claim against the
lawyer.
c. The probate court’s **conclusions about T’s intent for construction is not
determinative for a malpractice suit**; b/c the probate court has narrower
authority than trial ct
ii. conflicts of interest—representing members of same family and confidentiality
1. Rule—client can’t instruct attorney to actively misrepresent, but can tell atty
not to disclose something.
 a. Hotz v. Minyard, T signed the first will in front of others and a second
one in secret, which was not to be disclosed to one of the beneficiaries, his
daughter. Δ is atty who worked for the family for a long time, and in fact
worked for the daughter. The daughter asked Δ for a copy of the will, and
Δ only showed her the first one, and discussed it with her. Gave her some
misimpressions about the will. Daughter sues atty for breach of fiduciary
duty as a beneficiary under the will. page 54
b. Vicarious liability—law firm is vicariously liable for Δ b/c he was acting
in his capacity as an attorney
c. Breach of fiduciary duty—even though atty wasn’t beneficiary’s attorney
at the time of discussing the will, a fiduciary relationship existed in the
past btw them. Fiduciary duty means when one has a special confidence in
another so that the latter is bound to act in good faith.
d. Δ had no duty to disclose the second will, but had duty not to actively
misrepresent the first will. Not only this, but atty told daughter to get rid
of her other attorney on the case, which implies he was looking out for her,
and which she did rely on.
2. Rule—can’t disclose unless client consents, or disclosure is necessary for the
purposes of representation. But CAN or MUST disclose when:
a. MUST reveal in order to prevent violence or substantial financial loss,
prevent fraud upon the court
b. MAY reveal info to defend against malpractice claim or if atty thinks it’s
reasonably necessary to prevent fraud
3. A v. B, law firm represented couple (B and W) who wanted to leave all of their
property to each other, assuming the survivor would care for joint children. The
law firm also randomly takes A’s case, who is suing B for paternity. The problem
is that if B were to survive W, he might pass W’s assets to the new kid. The
firm’s solution was to withdraw from the paternity suit and order B to tell W of
the other kid or else it would. B sued law firm to keep them from telling his W
about the kid. page 57.
a. ct found that law firm is permitted (not required) to disclose to W the
existence of kid, but not its identity.
b. Alternative solution by the firm: simply withdraw from drafting the wills
iii. take home message
1. an estate attorney has to be more than minimally competent b/c client is dead, so
can’t fix it; you’re also sued often
2. since firm represents multiple people in a family, it’s a good idea to speak to them
separately and get them to sign waivers
3. legal reform, p 57-58
a. example of reform—if violates rule against perpetuities, then won’t make
whole thing invalid; wait-and-see doctrine; reform of will by court to
avoid easy mistakes
b. effect: reduce malpractice claims and make it easier for layperson to draft
valid will
e. Life and Death: Choice, Incapacity, and the Law, 345-63
i. legal devices: tools for planning incapacity: durable powers of atty, health care directives,
revocable trusts
ii. ordinary power of atty—P authorizes atty-in-fact to make decisions when P is competent
1. It’s called attorney-in-fact because the agent doesn’t need to be a lawyer
2. Agent has written authorization to act on principal’s behalf
3. Terminates upon P’s incapacity (obviously no good for planning for incapacity)
or death
iii. *durable power of atty—endures during incapacity, but not after death;
 1. the written instrument has principal’s express intent that power not terminate upon
incapacity, but principal can terminate at any time as long as competent
2. it serves to restrict agent’s power to health care; agent owes fiduciary duties of
loyalty, care, obedience. Agent is held to substituted judgment standard.
3. does not avoid probate
4. when does power start? Permanent vs. springing power
a. Permanent durable power starts before incompetence—administrative
costs and convenience are the reasons for having this
b. “springing” power of atty starts only after become incompetent; might
not use it b/c difficult to get agent to take responsibility and have to
determine that person is incapacitated
c. client would be more comfortable with springing, but permanent durable
power of atty is easier b/c don’t need to get court order saying incompetent
5. Rule—no specific mention of a particular trust needs to be mentioned in a
power of attorney, just has to mention trusts in general.
a. Franzen v. Norwest Bank Colorado, H established trust for himself and
W, naming bank as trustee. H died. W had the right to terminate the trust
and receive principal after H’s death. W wrote to bank that she wanted to
leave the trust intact for her lifetime. W’s brother put her in nursing home
and asked bank to turn over W’s assets to him. Bank filed petition w/
probate ct asking for advice. brother sent bank copy of power of atty and
letter revoking the trust, which was W’s right in the trust. Power of atty
instrument did not specifically mention the trust by name. Ct found that
the brother was authorized to revoke trust b/c the power of attorney
document expressly authorized agent to manage property, including
revocation of trusts.
6. common law of ademption—when T doesn’t own the devised property at death,
the devise is “adeemed” and the devisee takes nothing. Remedy is constructive
fraud and breach of fiduciary duty by atty in fact.
a. ie, atty-in-fact sells T’s property and thus devisee can’t get it.
b. Ex, in the will, Heir A gets the house, and Heir B gets cash; heir B is
named atty-in-fact, who then sells the house when T becomes
incompetent; heir A gets nothing and B gets everything
7. authorize gifts & durable power of atty—decedent’s taxable gross estate
includes inter vivos transfers which decedent retains the power to revoke
a. when durable power of atty doesn’t include express authorization to make
gifts, then it’s considered that decedent still retained the power to revoke
the gifts, and therefore has control over it, so taxable to decedent.
8. durable power and wills—probably can’t authorize holder of the power to make,
amend, or revoke T’s will, since Wills Act can be construed to require personal
knowing action of T (although what’s the difference btw that and revocable inter
vivos trust?)
iv. *advance directives—explains what person wants in advance of having to make the
decision
1. living will/health care directive—specifies how to be treated at end of life or in
case of incompetency
2. health care proxy/durable power of atty for health care—designates agent to
make health care decisions
a. power of agency does not expire with P’s incompetency!
b. substituted judgment std—agent for health care decisions held to this
std; what the patient chose or would have chosen in the situation
3. hybrid of living will and health care proxy—designates treatment preferences
and agent to make substituted decisions
 4. 1970s living wills were the first manifestations of respecting peoples’ right to die;
1980s next came durable power of atty, in recognition that having a living will was
not enough, and puts someone in charge; 1990s family consent laws next, where if
person doesn’t have living will or dur power of atty, then statute dictates who
makes the decision (spouse, parents, siblings)
v. trustee vs. durable power of atty
1. settlor/principal dies
a. durable power ends when principal dies; holder of power can’t transfer
after principal dies
b. durable power does not avoid probate, whereas trust can continue after
settlor’s death, and thus avoid probate; trustee can cure defects in estate
plan after settlor dies
2. agent/trustee dies
a. durable power terminates unless successor named by principal
b. successor trustee appt’ed by the court
3. right to title
a. trustee has title and generally has same powers as owner
b. agent doesn’t own and express powers strictly construed, almost no
implied powers
vi. conflicts and limits
1. limits on advanced directives
a. not done—directives are often not completed, since individual is in denial
b. they’re useless—completed directives fail to convey meaningful info
c. no understanding—people making directives often poorly understand
what they’re deciding;
d. health care industry compliance—both ethical and economic decision, in
that hospital practice defensive medicine
2. family conflict: Bush v. Schiavo, Terry went into coma and was in persistent
vegetative state for 8 years, and husband petitioned guardianship ct to authorize
termination of life-prolonging procedures. Ct ordered it that based on terry’s
vegetative state and that she would’ve chosen to do so if she were competent,
feeding tube was removed. Then state legislature passed bill authorizing governor
to stay removal of the feeding tube, and governor immediately issued executive
order to reinsert the tube. The bill applied when no advance directive from P, P is
in persistent vegetative state, food withdrawn, and member of family has
challenged withholding of nutrition.
3. Ct found it to be unconstitutional on its face and as applied. Facially b/c it
delegates legislative power to the governor, since no standard for how long the
stay should be or standard for issuing the stay, as well as makes the governor’s
decision unreviewable. As applied b/c it encroaches on the judicial branch, since
the executive order reversed a final judgment of the court, and the legislature
empowered executive to do so.
vii. default rules
1. life support—default is to help person live, even though popular opinion is to let
person die if there’s no hope of survival. If go by popular opinion, then presume
would want to die and require proof they want to be kept on life support
2. organ donation—default is to not take the organs, need to get affirmative
permission from donor
a. Uniform Anatomical Gift Act—surgeon who relies on validity of card in
good faith is not civilly or criminally liable;
b. this has no effect on easing shortage of donations—there’s an argument
that we should make the default a donation, rather than asking affirmative
question
 c. does this create a market for human organs? what’s the diff if tax
deduction given, or lower premiums by insurance companies to donors?
3. Part II - Without a Will: Intestate Succession
a. Who Takes under Intestacy: UPC 2-101 page 60 Defaulting at Death, 59-73
i. policy and intestacy
1. intestate—decedent dies without a will or entire will is invalid
2. why do intestate laws look the way they do?
a. carries out intent of majority of people—measured by probated wills
b. protect family/fairness—help the people who were around to help build the
estate
c. why pass to adult children rather than elderly parents? avoids extra
taxation from being passed twice because the parents are going to die
before the kids would
3. statute of descent and distribution
a. applicable statute
i. personal property—apply the statute for where decedent was
domiciled at time of death
ii. real property—apply the statute where real property is located
b. purposes
i. defines heirs and therefore describes who has standing
ii. defines how much of probate property each is entitled
ii. if there’s a will
1. partial intestacy—there is a will, but some things are left out of it and disposes
only part of the estate
2. how to avoid—use a residual clause; whatever’s left goes to X, or Y, or Z, etc
iii. issues
1. spousal share – UPC 2-102, 2-103 page 61, 19 supp
a. UPC vs. most states—UPC is more generous to spouse, which is more in
line with majority of people. state law usually gives surviving spouse sum
+ ½, or ½ if kid survives; UPC gives surviving spouse everything if kids
are both of H & W’s
b. domestic partners—jury’s still out. since policy of intestacy laws is to
given effect to probable intent of decedent and protect those who decedent
treated as family, would seem to apply here, too; but same-sex marriage
isn’t so popular
2. simultaneous death
a. simultaneous death problem—beneficiary receives property only if they
survive decedent.
b. What if both die at same time? If beneficiary doesn’t meet the survival
requirement, then treat as if they predeceased the decedent.
i. justification—If didn’t have rule, then estate would pass to the
second taker of the estate, possibly subject to a second round of
taxation because that taker is dead as well.
ii. The problem of simultaneous death applies to intestacy, wills,
trusts, insurance policies and other nonprobate transfers.
iii. Btw, an “heir” has to survive decedent. A living person has no
heirs, just heirs-apparent.
c. Uniform Simultaneous Death Act, pre-Janus—default is if both die at
same time, consider beneficiary to have died first, unless there is
“sufficient evidence” of the order of deaths
i. Length of survival—beneficiary must survive decedent by 30-60
days
ii. Burden of proof—consider beneficiary predeceased unless there
is “sufficient evidence” of the order of deaths
 iii. Application
1. joint tenant, tenancy by entirety, community
properties—½ of property is distributed as if A had
survived, and ½ as if B survived
2. life insurance—distributed as if insured survived the
beneficiary
iv. criticism—two families are grieving, and now they have to litigate
something for “winner take all”, coupled with a low burden of
proof
d. Janus rule—survivorship must be proven by a preponderance of
evidence by party whose claim depends on survivorship; don’t need to
prove exact time of death, just as long as lived longer.
i. Janus v. Tarasewicz, H and W take tainted Tylenol. H dies
immediately at the hospital, wife on life support for 2 days and
then died. While on life support, W had fixed and dilated pupils
most of time, but then later had minimal reaction in one eye, and
pulse and blood pressure didn’t have to be artificially maintained.
This is evidence enough that she wasn’t brain-dead in hospital the
whole time.
e. UPC, post-Janus USDA
i. Length of survival—A taker (heir/devisee/life insurance
beneficiary) who fails to survive by 5 days (120 hours) is
considered deceased before the decedent
ii. Burden of proof—std is clear and convincing evidence, not just
sufficient evidence
iii. Criticism—clear and convincing evidence doesn’t raise the bar
high enough to deter families from suing each other when there’s
substantial money at stake.
f. Analysis
i. Did the claimant actually survive decedent? (fact-based)
ii. Did the claimant legally survive decedent? (determined by length
of survival required in statute
iii. Apply to each successive taker!!
iv. Ex, H and W married with no kids. Get in car crash, and H dies
immediately. W dies two days later. Both died intestate. H
survived by father. W survived by mother. Post-janus, W doesn’t
actually legally survive H, since she died only two days later, not 5
as required. H’s property goes to his father. Who gets W’s stuff?
Have to analyze H. H died before W both actually and legally, so
W’s property goes to her mother, not H’s father.
g. Class problem, simultaneous death, p 72 #1
i. H and W are in boating accident; W is better swimmer, and
autopsy shows W had violent struggle whereas H passively died.
Is there sufficient evidence of W’s survival?
1. not sufficient evidence b/c possible to say she died faster
b/c of her struggle
ii. H and W killed in plane crash, but W’s brain was intact and shows
carbon monoxide in bloodstream, whereas H had no CO in
bloodstream
1. ct found sufficient evidence that W survived H b/c only
way CO would be in blood is if she were still breathing.
b. Negative Disinheritance
i. express statement in parent’s will disinheriting a child
ii. doesn’t apply to complete intestacy, but can apply when there’s partial intestacy
 1. if want to disinherit kids, make sure everything goes to someone else.
2. can’t just say kid won’t get any of the property
3. if there is a partial intestacy for some reason, kid will get some property under
intestacy law, even if the will has clear intent to disinherit.
iii. UPC—allows negative will
1. T can make express intent to disinherit
2. treated heir as if the heir predeceased the decedent
3. even if partial intestacy, still doesn’t take b/c the disinherited heir is treated as if
predeceased, and then the share would then go to heir’s issue, unless the will
disinherits them as well
c. Calculating Shares: Descendant Shares: Per Stirpes, Per Capita and the Maze of Consanguinity,
73-83
i. tiered approach
1. Both UPC and states use tiered approach. If there are takers in one tier, it doesn’t
go down to the next. Ex, D dies with W, kids, and parent. W gets 33%, kids split
up rest of 66%. D’s parent doesn’t get anything.
ii. typical statute
1. Who takes? How much?
Surviving spouse 100% if no issue, parents, issue of parents
50% if 1 child, deceased child’s issue, or no child but parents or parent’s issue
33% if more than one child (alive or deceased with issue)

Any property not passing to spouse passes to:

Issue equally
Parents equally
Issue of parents equally
Grandparents equally
Issue of grandpts equally
Next of kin by degree of relation
Escheat to state 100%

iii. UPC approach

1. Who takes? How much?
Surviving spouse 100% if no issue/parents
100% if all Dec’s issue are also spouse’s, and spouse has no other issue
$200K +75% of rest if no issue but parent
$150K +50% of rest if all issue is also spouse, but spouse has other issue
$100K + 50% of rest if any issue is not issue of surviving spouse

Any property not passing to spouse passes to:

Issue equally
Parents equally
Issue of parents equally
Grandparents/issue 50% to paternal grandparents or survivor; otherwise to their issue equally
Escheat to state 100%

2. UPC and spouse

a. UPC is more generous, esp when kids are from both parents
b. change from common law; there, husband got everything, while wife got
life estate which then went to kids (administrative problems).
c. usually people want to leave everything to spouse, even to the exclusion of
kids, but state law usually gives surviving spouse approx half. UPC’s
reasoning is Dec give everything to spouse to decide how to use for kids,
rather than giving to kids themselves (administrative costs if they’re
minors)
3. UPC and issue
 a. not all issue of surviving spouse—Dec has issue, but some with someone
other than spouse. Spouse gets 100K + 50% of rest. Other 50% goes to
dec’s issue.
b. surviving spouse has own issue—Dec’s issue is also spouse’s, but spouse
has other kids. Spouse gets 150K + 50% of rest. Other 50% goes to dec’s
issue.
c. stepparent syndrome—UPC concerned about Dec leaving kids which are
not survivor’s. the kids get more if they’re not spouse’s kids.
4. UPC and parents—if Dec has no kids, but spouse and parents survive, parents get
less than regular statute. Spouse gets 200K + 75%.
5. UPC and parent’s issue—if Dec has no kids or parents, but parents leave issue,
spouse still gets 100%. State laws usually lessen for spouse if dec had parent’s
issue
6. UPC escheats to State sooner, since no next of kin provision
iv. definitions
1. issue—includes children and children’s children, etc. synonym for descendants
2. consanguinity—degree of kinship
3. disclaim—action by someone who stands to inherit, to refuse to accept share of
estate
a. incentive to disclaim: sometimes the beneficiary has so many debts, they
know that it would go straight to the creditors, or if they want to maintain
eligibility for assistance
4. per stirpes—distribution by the line of descendants
v. General Principals
1. issue of predeceased children take in their place (representation)
a. after spouse’s share is set aside, children and issue of deceased children
take remainder to exclusion of everyone else
b. if child has died, the child’s issue represent the dead child and divide the
child’s share among themselves
2. if a person takes, his issues does not
a. if person takes, then their kids don’t split up anything for themselves.
3. blood counts, not marriage
a. adopted kids count as blood, though
b. stepchildren, daughter and son-in-laws don’t take anything by intestacy; it
would escheat before going to them.
4. distribution to collaterals
a. when distributed to issue of collateral relatives, the 3 doctrines below
apply to them as well
ii. determining how much they take
1. English per stirpes / strict per stirpes
a. treats each line of descendants equally. Divide property equally at first
generation, even if everyone’s dead.
b. not very fair, but easy to apply

A .
B . C
D(1/4) E(1/4) F (1/2)

2. per capita with representation / modern per stirpes, UPC 1969

a. make the first division at the first generation with someone alive. Divide
for each person who’s alive and dead person with issue. Ignore if dead w/
no kids, b/c it wouldn’t go to anyone there.
b. more fair, but more complicated and still not equal across generations
 A .
B . C
D(1/3) E(1/3) F (1/3)

A .
B . C D
E F(1/5) G(1/5) H I(1/5) J
K(1/15) L(1/15) M(1/15) N(0) O(1/10) P(1/10)

-Split first at F’s generation. Only 5 living or have issue. H is dead and no
kids
-then split dead children’s shares to their kids

3. per capita at each generation, UPC 1990

a. initial division of shares is made at the level where one or more
descendants are alive (like modern per stirpes), but shares of deceased
persons on that level are treated as one pot – “pooled” and are dropped
down and divided equally among the representatives on the next
generational level.
b. treats each taker at each generation equally with the other takers in that
generation (equally near, equally dear)
c. very fair.

A .
B . C
D(1/3) E(1/3) F (1/3)

A .
B . C D
E F(1/5) G(1/5) H I(1/5) J
K(2/25) L(2/25) M(2/25) N(0) O(2/25) P(2/25)

-split where first living person is, F. do same as above, and count only
the ones who are either alive or dead but have issue. H is dead w/ no kids.
-take the dropped shares, pool them, and divide among how many
people are in the generation who take. 2/5 is going to lower generation,
then divided by 5 (N doesn’t get b/c G already did). 2/5 * 1/5 = 2/25 each.
iii. Problem p 76 #1
1. A has two kids, B and C; B predeceases A, leaving B’s child D. C predeceases A,
leaving C’s two kids E and F. E predeceases A, leaving E’s two kids, G and H,
who survive A. Thus D, F, G and H are the only ones left alive. A dies intestate
with no surviving spouse.
_____________A________________
| |
B ______C_____
| | |
D ______E_____ F
| |
G H

2. modern per stirpes—D 1/3, F 1/3, G 1/6, H 1/6;

3. English per stirpes— D ½, F ¼, G 1/8, H 1/8;
4. 1990 UPC / per capita at each gen—same as modern per stirpes
 iv. Problem p 77 #2
1. same as above, except A has another child Z, and F has a child I. Z predeceases A,
leaving no descendants. F survives A, and so does F’s child I.

_____________A_____________________________
| | |
B ______C______ Z
| | |
D ______E_____ F
| | |
G H I

2. I and Z make no difference

3. I doesn’t get anything b/c F is still alive;
4. Z does get anything b/c she’s dead and has no descendants. Ignore for division.
5. same answer as for previous problem.
b. Shares of Ancestors and Collaterals (Non-Issue)
i. when there is a surviving issue—ancestors and collaterals do not take if decedent is
survived by issue
ii. when there is no issue—then after deducting the surviving spouse’s share, half the estate
usually goes “up” to the decedent’s parents (like under UPC) and then to collateral
relatives, such as siblings and their issue
iii. collateral kindred—people who are related by blood, but are not issue or ancestors (ie,
they are siblings, aunts, cousins)
1. first-line collaterals—issue of decedent’s parents (ie, siblings and their kids)
2. second line collaterals—issue of decedent’s grandparents (ie, uncles & aunts, and
their kids).
iv. when there are no first-line collaterals
1. parentelic system—keep going up a generation until heir is found
2. degree-of-relationship system—count on table of consanguinity, p 79
3. mixture of the two—Massachusetts uses degree-of-relationship, but provides
parentelic preference when tie btw kin of equal degree.
v. laughing heirs—so distantly related they care only about the money
1. limited—substantial minority of states eliminate this type of succession, and limit
inheritance to grandparents and their descendants
2. expanded—California allows step-children and kin of predeceased spouse to
inherit when decedent leaves no blood relatives
vi. Problem p 82 #1
_____________M______________________
| | |
B_________ D S
| |
N1 N2

1. 1990 UPC—mother gets everything, since it goes to parent before collaterals

vii. Problem p 82 #2
1. decedent has first cousin on mother’s side and two first cousins on father’s side
2. 1990 UPC—1/2 goes to first cousin on mother’s side; ¼ to each cousin on father’s
side
3. the rule is that it split btw maternal and paternal side, and then is split btw those
relatives of equal degree
viii. Problem p 82 #3
1. decedent’s heirs are decedent’s first cousin’s granddaughter (B) and first cousin of
decedent’s mother (A)
 2. 1990 UPC—since inheritance is not permitted beyond grandparents and their
descendants, it goes to first cousin’s granddaughter (grandparent’s descendant);
(but if there is no grandparent or their descendant, then shifts to other side—
maternal or paternal; inheritance is limited to 2nd line collaterals, and gets rid of
laughing heirs –
a. B takes everything
3. Massachusetts statute—since it goes on degree of kinship, inheritance goes to
first cousin of decedent’s mother (first cousin of decedent’s mother is degree 5,
whereas granddaughter of cousin is degree 6)
a. A takes everything
ix. Half-Bloods
1. UPC and majority of US states—relative of a half-sister/brother is treated the
same as a relative of a whole-blood
2. minority—half-blood is given a half-share (Virginia); in other states, half-blood
takes only when there are no whole-blood relatives of the same degree
(mississippi)
d. Defining Issue: A “world full of (favored and) ill-favored children”: Legal Categories of Children,
83-114
i. Overall—in all of these situations, consider genetics, legal documents, financial support,
and appearance to community of whether child is the parent’s.
ii. as further descendant
1. as the child of a child of a child, etc
iii. biologically
1. if parents married
a. presumption is that both are natural parents of the child, so child inherits
from them and they inherit from child
b. UPC—for parents to inherit from child, the natural parent has to both hold
child out as own + financially support the child, even if married!
2. if not married
a. child of unmarried mother can always inherit from the mother, and vice
versa
b. child of unmarried father can inherit once established he’s natural father:
i. by subsequent marriage of the parents,
ii. by acknowledgement of the father (holding out as own kid or file
writing with court); equitable legitimation doctrine works here b/c
it’s like equitable adoption—clear & convincing ev of paternity
and of father intent child be treated as hier.
iii. by adjudication during father’s life by preponderance of evidence,
or
iv. by clear and convincing proof after his death
c. Uniform Parentage Act—parent-child relationship presumed if the child
is less than 2 yrs old and parent lives in same household and holds child
out as his own, or father acknowledges paternity in writing filed w/ admin
agency
3. switched at birth
a. an erroneous birth certificate doesn’t give parent automatic parental status
b. but in one case, the parents who took the child home and took care of her
were declared the legal parents; ct concerned itself with the best interest of
the child
4. posthumous children
a. posthumously-born: father is alive while children conceived, but born
after his death
i. treat the child as a life in bring from time of conception rather than
birth
 ii. if married, as long as child born w/in 280 days of H’s death,
rebuttable presumption the kid is H’s. If child born more than 280
days after H’s death, burden on child to prove H is dad.
iii. QUESTION—what if not married?
b. Posthumously-conceived: children conceived and born after F dies,
Woodward.
c. Woodward v. Commissioner of Social Security, married couple
arranged for H to impregnate W after he died. W applied for SSI after H
died. W’s claim was rejected b/c kids weren’t “children” under the act,
which requires them to be takers under intestacy laws. Ct said yes since
there was affirmative consent by H.
i. Posthumously-conceived child can inherit when:
1. proof of paternity (goal: admin efficiency/certainty)
2. birth w/in statute of limitations after parent’s death
(goal: admin efficiency/certainty)
3. deceased parent intended to both conceive and support
children posthumously (goal: consent)
ii. Goals to consider
1. best interest of child—state wants to protect children
regardless of accident of birth, including right to estate.
Wants to protect both existing and posthumously-
conceived children.
2. admin efficiency—state also wants to protect already
existing children by providing certainty. Also certainty
for creditors and other heirs. In this case, was 2 years.
3. reproductive rights of genetic parent—that’s why we
require consent.
iii. Policy question for this case in particular
1. does it make sense that the state should support kids where
the kids were conceiving while the surviving parent
KNOWS that the state will have to support them? She’s
applying for SSI, and had an agreement beforehand
knowing that H won’t be able to support them b/c he’ll be
dead.
d. Factors for standards
i. what counts as affirmative consent to conception?
ii. how long after death can conception occur, so that interest of rest
of family and state’s interest in finality trump interest of later-born
kids?
iii. Woodward—strict rule requiring affirmative consent of decedent
iv. Restatement—relaxed std; child born within reasonable time after
death in circumstances indicating decedent would have approved
of child’s right to inherit; ie, IVF by widow
v. Uniform Parentage Act—stricter, decedent must provide consent
of record that if IVF were to happen after death, decedent would
be a parent of the child
vi. Ca state law—strict std and clear time limits; requires clear and
convincing proof that decedent signed writing w/ witness that
genetic material could be used for posthumous conception, notice
of possible conception given to person with control over
distribution is made w/in 4 months after death, and that the child is
in utero w/in 2 years of death
5. surrogacy and married couples
a. child may be genetically related to both H&W, just one, or neither!
 b. Rule—where surrogacy contracts are enforceable, the genetic makeup
of the child is irrelevant, and the intent of the parties to the contract
controls
i. Jonathon v. Calvert, surrogate carried child who was genetically
related to H & W. Ct gave it to the genetic parents, H & W, not
b/c they’re related but b/c intent of parties control, as evidenced by
surrogacy contract.
c. In re Marriage of Buzzanca, surrogate carried genetically unrelated baby
to all of them. H and W get divorced b/f child is born, and only person
who wants kid is W, and she wants child support from H.
i. Because H and W consented to the conception that created the
child, it was both H and W’s kid.
ii. What if nobody wants the baby? I guess it gets given up for
adoption.
d. In another case, though, the surrogate and H were genetically related. Ct
said W not parent b/c not gestationally or genetically related, even though
had set up surrogacy contract. But W could get custody if in best interests
of child.
i. But is “best interests of the child” the same policy considerations
as inheritance rights? No, they’re different. (didn’t discuss in
class)
6. same-sex parents
a. In Adoption of Tammy, lesbian couple was able to adopt baby that was
genetically related to one of them. Adopted child would inherit through
both lesbian mothers.
b. most states have second-parent adoption statute so that partner who isn’t
genetically related to child can adopt the kid; nonbiological parent has
custody rights when couple separates, just like hetero couple
iv. legally
1. legal adoption
a. most powerful tool; it’s irrevocable; is entirely statutory and not from CL,
so look at statute carefully
b. does an adopted child still have rights to inherit from natural family?
i. Option 1: Adopted child can’t inherit from natural parents:
1. An adopted child shouldn’t get more rights than a natural
child
2. Receiving property isn’t a natural right, but a privilege
that the State can regulate
3. Adoption should be considered a “rebirth”
4. Hall v. Vallandingham, H1 died, survived by W and
their kids; W married H2, who adopted the kids. H1’s
brother B1 died and the kids were some of his heirs. Issue
is whether the kids are cut off from their natural paternal
uncle’s estate because they were adopted. State statute
existed which eliminates the adopted child’s right to
inherit from their natural parent, and therefore can’t
inherit through the natural parent by representation.
5. Interpretation of the statute—an earlier law barred dual
inheritance, but later law didn’t contain the explicit
prohibition on dual inheritance. Ct didn’t buy it and said
later law just “streamlined” earlier one.
ii. Option 2: Adopted child can inherit from both natural and
adoptive
 1. In a case where the father died and mother remarried, the
dead father never relinquished his rights to his kids.
iii. Option 3: Adopted child can inherit from both if adopted by
natural parents’ spouse, 1990 UPC § 2-114
1. if child adopted by two adoptive parents, then inherit from
them, and parents inherit from child
2. if child is adopted by stepparent (spouse of natural parent),
then adopted child inherits from both natural parents and
step-parent. The parent who’s out of the picture can’t
inherit FROM the child, however.
3. Rationale—the natural parent who’s out consented to the
adoption, so they signed away their inheritance rights
from the kid. But the kid doesn’t consent to the adoption
if they’re a minor, so their inheritance rights shouldn’t be
changed.
iv. Think about a new approach: consider factors such as how old
child was when relationship arose, economic and emotional
support, and whether parent held child out as own
2. adult adoption
a. most inheritance statutes don’t distinguish btw adult and minor adoption;
therefore can use adult adoption to ensure the adopted friend will inherit as
an heir from the adoptive parent if intestate
b. some states prohibit adopting a lover (ie, same-sex couple where one
adopts the other)
c. Minary v. Citizens Fidelity Bank, M devised estate in trust to H and sons
for their lives. trust was to terminate on death of last beneficiary, and then
distributed to M’s “surviving heirs, according to the laws of descent and
distribution then in force.” The last beneficiary died with kids. The one
kid adopted his wife, everyone died and then trust terminated.
i. Ct said H adopted W in order for her to inherit through him,
not from him. Language in trust—“surviving heirs”
technically included the adopted wife, but appears to frustrate
T’s intent, so didn’t apply to adult adoptee.
ii. Practice note—M could’ve allowed sons to appoint a life estate to
their spouses, and it’s doubtful that M would’ve wanted widowed
daughter-in-law to live in poverty.
3. adopted children and trusts
a. children adopted out of trust—T bequeaths fund in trust “for my wife
for life, then to my issue then living per stirpes.” T dies, then his son A
dies, leaving wife and minor child B. A’s wife remarries and second
husband adopts B, which in many states prevents B from taking from T
under intestacy laws. T’s wife dies. Can B share in T’s trust fund?
b. In one case, look at intestacy law at time of T’s death to determine T’s
intent, and whether B would be excluded
c. In another case, B would share in the testamentary trust even though B
would not inherit under intestacy law.
a. adoption and interpretation of wills and trusts—is a child adopted by A
entitled to share in a gift in a will or trust by T to the “children,” “issue,”
“descendants,” or “heirs” of A?
i. stranger-to-the-adoption rule—early rule which presumed the
adopted child was barred from taking, unless the donor is the
adoptive parent
 i. majority today—adopted children are presumptively included in
gifts to the children, issue, and heirs of A. (but not always
retroactive, so might depend on law at time of T’s death)
v. virtual / equitable adoption
1. happens where adoptive parents agree to adopt but fails to complete the adoption
paperwork. Kid still has a claim to their intestate share of adoptive parent’s estate.
Doesn’t change inheritance relationship with natural parents, and adoptive parents
can’t inherit from kid.
2. usual requirements
a. agreement btw natural and adoptive parents to adopt kid
b. natural parents give up custody
c. child lives with adoptive parents
d. adoptive parents raise kid as their own
e. adoptive parent dies intestate
2. O’Neal v. Wilkes, O’s parents weren’t married, and was raised by only mom until
she died. Then O lived with aunt, who gave her to L, who gave her to O’s other
aunt, who gave her to C. C never formally adopted her, but raised her and
provided for her education. O never took their last name, but C referred to O as his
daughter, and O’s kids as his grandkids. Then C died intestate. O petitioned to
declare virtual adoption
a. Ct says no valid virtual adoption b/c last aunt who entered into the
adoption contract with C had no legal authority to do so
b. Dissent—since equitable remedy, should use it to promote equity, and
should apply whenever child is led to believe they were adopted. Here,
O was given financial support and social consideration (held out to
community as daughter). It’s not the kid’s fault K wasn’t complete, and
couldn’t have insured the validity of the K when it was made.
c. Policy question particular to this case—race and class affect the law;
there was no lawyer in the town where the father lived… should this affect
the way the court treated the case? could say yes, since father wouldn’t
have been aware of what to do for virtual adoption, since not a legal
culture
vi. special power of appointment (also below)
1. create heir by adopting person to bring them within gift class, trust, etc. This is
what the grandson did in Minary.
2. power of appointment
a. general power of appointment—when person transfers a power they would
normally have
b. special power of appointment—transferring authority to do something in
particular; aka limited power of appointment
vii. wills and trusts as alternative to adoption
1. parent can expressly provide for them (whoever they are, be it friend, natural child,
posthumously-conceived child, etc) in the instrument
e. Providing for Children: Advancements, Guardians, and Conservators, 114-120
i. advancements
1. an advancement is a gift given to heir that can be subtracted from estate given to
heir
2. old common law—almost everything was advancement, in that inter vivos gifts to
a child were irrebuttably presumed to count against child’s share of parent’s estate
a. hotchpot—add the advancement back to make the total estate, then divide
total estate
b. tricky situation—what if advancement is more than what heir’s share of
estate would have been? Child doesn’t have to give anything back, but
then don’t count it in the hotchpot, and divide it up between everyone else.
 3. current majority—inter vivos gift doesn’t count against heir’s share unless there
is an explicit writing that it’s meant as an advancement – contemporaneous writing
by donor – or writing anytime by donee
ii. transfers to minors
1. a minor has no legal authority to control property. Therefore these devises are
used:
2. consider cost, flexibility, and fairness to children and avoiding fraud
3. guardianship of property
a. as opposed to guardian of person, who takes care of kid, this one has
control over property
b. want to avoid it b/c can’t make any decisions w/out court approval, is very
expensive and inflexible
c. it’s the default if nothing is set up before hand
d. btw, guardian ad litem is for representing child for a specific issue
4. conservatorship
a. conservator takes title as trustee for the minor, and uses the money for the
beneficiary
b. little more flexible; less legal constraints since only in court once a year
c. frequently used
5. custodianship
a. custodian holds the money for the benefit of the child later
b. fiduciary duty
c. can manage and spend it with own discretion and no supervision of court
d. even less administrative cost, but less oversight
e. isn’t used for large sums of money since less checks against fraud
f. if want to spend more than 10K, have to get court order
6. trustee
a. most flexible
b. trust can hold money longer than when kid turns 18 or 21
c. doesn’t require supervision, just checked by fiduciary obligation
d. separates legal and equitable title to property (trustee only gets legal title)
e. easiest way to ensure intent of decedent
f. Bars to Succession: Slayers and Disclaimers, 126-140
i. slayer statutes
1. definition and requirements
a. party who would otherwise is entitled to take from decedent kills decedent
intentionally (involuntary manslaughter doesn’t trigger it)
b. Mahoney—W killed H and convicted of manslaughter. State law doesn’t
distinguished btw voluntary and involuntary. Ct created constructive trust
with decedent’s other heirs as beneficiaries as equitable remedy so that
won’t change intestacy law but also prevents unjust enrichment.
2. scope of applicable property
a. usually applies to all types of property: nonprobate, probate testate,
probate intestate, UPC. If joint tenancy, UPC converts it to tenancy in
common by operation of law, then treats killer as if predeceased V.
3. judicial remedies
a. legal title passes to slayer b/c it would be imposing additional punishment
on survivor; distribution of estate is not governed by criminal law
b. title doesn’t pass to slayer b/c of equity; ie can’t profit from your crime
(but criticism is that it creates a judicially-created exception to statute of
descent and distribution, so judiciary is legislating)
c. title passes to slayer, but in a constructive trust; treat killer as
predeceased, but issue is whether it goes to killer’s issue or V’s heirs.
4. killer’s issue
 a. generally treat slayer as if predeceased V.
b. some cts say slayer’s issue should be barred as well.
i. If slayer’s issue doesn’t get it, give it to V’s other heirs.
c. Some allow issue to take through slayer’s share
i. Ie, UPC treats killer as if disclaimed property, and therefore
possible for killer’s issue to take under:
1. Intestacy—by per stirpes/per capita doctrines
2. Testate—lapse and anti-lapse doctrines
ii. abandonment and elders
1. Chinese system inquires about who the good kids are and then gives is to them;
also considers non-relatives to give money to them as well
2. problems—court expenses, and whether court is competent to make this decisions;
violates intent of decedent; prone to corruption
3. pluses—encourages will-writing; encourages filial duty (take care of aging
parents)
iii. disclaimer
1. applies to intestacy, testacy, and nonprobate transfers. Check statute.
2. an heir renounces under intestacy, but a devisee disclaims under a will.
3. if taker disclaims interest, treat party as if predeceased decedent, and therefore
would pass to decedent’s next heir
4. benefits of disclaiming
a. “post-mortem planning”—disclaimers can be used to redistribute money.
Ie, H dies, leaving W and adult children. The adult children can disclaim
(as long as they have no children themselves) and then everything would
go to W.
b. avoid gift tax consequences—if taker accepts and then passes to next
person in line, the taker will have to pay gift tax. Won’t have to pay if
disclaim and it would automatically go to that person, anyway
c. avoid creditors—heir/devisee has creditors themselves, can prevent it
from automatically going to them.
5. but can’t avoid taxes or maintain eligibility for assistance
a. If disclaimant owes taxes or fed government is a creditor, the disclaimed
property is still subject to claim of fed gov’t.
b. Troy v. Hart, L goes in nursing home and qualifies for Medicaid. L tried
to disclaim an inheritance, but ct found that b/c it would change his status
to qualify for Medicaid, he can’t disclaim it. It would be a fraud on the
government.
c. Practice note—it’s a federal crime to counsel a client to disperse assets in
order to become eligible. Also, Medicaid statute has look-back period of
5 years, where you’re not eligible if you gave away gifts in the last 5 years
4. Part III - Wills
a. Formalities and Forms: Execution, 199-218
i. Why? Functions of formalities:
1. cautionary/ritual function—provide ceremony to impress transferor w/
significance of statement
2. evidentiary function—provide increased reliability of proof, esp since main actor
is dead
3. protective function—protects against undue influence;
4. channeling function—standardization to make it easier to determine intent;
consistency and uniformity makes it easier to administer
5. policy— in asking whether a formality serves a function of formalities, should
consider whether it promotes the intent of the testator at acceptable administrative
cost (ie, boxing the ears of young boys might make them better witnesses and
serves the functions of the formalities, but at a ridiculous cost—pain!)
 ii. What is required?
1. basic requirements
a. writing—evidentiary fxn
b. T’s signature—evidentiary fxn
a. Attestation clause —protective, evidentiary fxns.
i. W attests that T signed voluntarily in W’s presence
ii. clause comes after T’s signature and this is what witnesses sign.
iii. Permits probate in case W forgets or dies b/f probate
iv. Malpractice not to do this
2. Optional—self-proving affidavit, W signs to prove that they attested to the will
so that they don’t have to testify; creates rebuttable presumption the will was
properly executed
a. Two-step self-proving affidavit
i. in attestation clause, W attest T signed will
ii. in separate affidavit at end of will, W signs notarized affidavit that
Ws attested to the will
b. One-step self-proving affidavit—affidavit language is in attestation
clause, so that T and W sign only once, and the will is notarized
c. Difference btw attestation and affidavit—attestant expresses present
intent to act as a witness; affiant swears they were already a witness.
3. optional—revocation clause of prior wills, in terrorem clause w/ bait
4. Will Act—establishes same formalities for both real and personal property, and
requires that 2 witnesses be present when T signs. Comparison with statute of
frauds and UPC 1990 on p 203
5. Counterarguments in general—the opposing point would ask whether the
functions of wills formalities are substantially satisfied by the situation in which
the will was executed. (see next section on corrective measures)
iii. How to execute?
1. p 216 gives form and instructions on how to execute.
2. Common Law Rule (varies on # of witnesses)
a. T signs (or another in T’s presence and by his direction)
i. doesn’t have to be full name, but if T intended to sign full name
and only signs partially, then invalid
ii. T expressly asks someone else, can’t be implied
b. a writing
c. T’s signature is made or acknowledged by T in presence of 2 or more
witnesses
i. Stevens v. Casdorph, wheelchair-bound T went to bank to
execute his will. T got bank employee to witness execution. T
signed will, then employee took will to two other bank employees
to sign it, although they hadn’t directly witnessed T’s signing.
State statute required that T sign in presence of two witnesses,
present at the same time.
ii. Rule—form over intent. even though the bank employees were
aware of what was going on, the ct required strict compliance with
requirement that two witnesses be present at same time of T’s
signature and actually see T sign will.
iii. Dissent—T’s intent is clear, and no undue influence. T also
lacked mobility, so it was the best under the circumstances
d. Witnesses must be present at the same time when T signs
i. In re Groffman, T signed will and acknowledged it, but not while
in the presence of both witnesses. T did it separately with each
witness, where then the witness would sign.
 ii. Rule—form over intent. despite T’s intent (and lack of fraud)
that this be his will, not valid b/c T did not acknowledge his prior
signature to both witnesses at the same time or to sign the will
before both witnesses at the same time.
e. Witnesses attest and subscribe (meaning sign) in T’s presence
i. 1990 UPC
1. no need for witnesses to sign in T’s presence, since only
has to be reasonable amount of time
2. no need for witnesses to be there at the same time
3. uses conscious presence test for when T asks someone
else to sign for her
3. Meaning of “presence” under the requirement that witness be in T’s presence
a. Line of sight test—witness is considered in T’s presence (and vice versa):
T doesn’t have to actually see witnesses sign, but must be able to see them
were T to look
i. Ex, T was driven to bank and bank teller sees T in car and teller is
witnesses, but is invalid b/c T couldn’t see teller sign will; seems
silly
b. Conscious presence test—witness is considered in T’s presence (and vice
versa) if T through sight, hearing or general consciousness of events,
understands that the witness is in the act of signing
4. order of signing
a. T has to sign first and complete it first b/c it’s required that the witnesses
have to witness it. (or witness T’s acknowledgement)
b. what if one witness leaves in the middle of T signing, T finishes and other
witness signs. Then W comes back, T acknowledges signature, and then
W signs. Not valid, since T didn’t complete signature while both
witnesses present. T’s acknowledgement not good enough b/c T has to
acknowledge BEFORE BOTH witnesses sign.
5. interested witnesses
a. Rule—regardless of actual knowledge of status, the witnesses can’t be
a beneficiary of the will
i. although sometimes statute will allow if witness’s share doesn’t
exceed their share under intestacy statute);
ii. Justification—prevent undue influence
b. UPC—doesn’t require that the witness be disinterested.
c. An interested witness can’t disclaim to validate the execution, even
though disclaiming would “relate back” to when interest was created
i. Estate of Parsons, 3 witnesses: a notary public and two people
who were beneficiaries. the one beneficiary disclaimed her
interest. State statute required 2 witnesses. Ct held invalid since
only 1 witness was disinterested
d. Remedies for interested witness
i. Invalidate the entire will—harsh, b/c it deprives the other
beneficiaries of their gifts under the will
ii. Void the interested witness’s portion—more fair, but not always
true that the interested witness would have taken more than
would’ve if the will was valid (either T was intestate or under T’s
earlier will)
iii. Purging—witness only is interested if got more than would have
otherwise (either if T was intestate or under an earlier will). Void
only the part that’s in excess.
iv. Rebuttable presumption of misconduct—interested witness can
rebut and keep the gift; if can’t then do the purging
 v. Don’t use this rule—UPC does this b/c it does more harm than
good by trapping innocent witnesses. If someone is guilty, then let
someone challenge the gift under undue influence or fraud
doctrines
b. Curative, Clear, and Convincing, 225-35
i. use these doctrines when EXECUTION of will is not in strict compliance with wills act.
Not a matter of construction of will’s terms
ii. themes
1. judicial competence— is the court legislating rather than applying the law?
2. testamentary intent—the law wants to honor the intent of the decedent
3. practice vs. scholarship—formalities are relatively silly b/c they’re not as useful
as they try to be
ii. Substantial compliance
1. 1990 UPC (updated later)—imperfect execution is valid when there is clear
and convincing evidence T intended document to be his will, and that it
substantially complied w/formalities so as to serve the purpose of Wills Act
2. criticism by Langbein—substantial compliance doctrine uses too high a standard
for whether the will substantially complied with Wills Act formalities.
3. In re Will of Ranney (NJ), introduction of doctrine in US. T used two-step self-
proving will, but forgot the attestation clause. W therefore only signed self-
proving affidavit, and not the attestation clause. Problem is that the self-proving
affidavit stated that W signed attestation clause when they obviously didn’t. Ct
adopted substantial compliance doctrine and remanded b/c of intent over form.
iii. Dispensing Power/Harmless Error
1. same thing as substantial compliance, but without the second requirement. Works
as an EXCUSE.
2. 1997 UPC—imperfect execution is valid when there is clear and convincing
evidence T intended document to be his will
3. it means ct can “dispense with” the requirement for substantial compliance with
formalities that it deems appropriate
a. usually the witness requirement is the easiest to be dispensed with, but the
writing requirement being the most important is one that is basically never
dispensed with. T’s signature is somewhere in the middle.
b. also called harmless error b/c there is no injustice if the error is ignored
4. In re Estate of Hall (Montana), H and W made joint will and were prepared to
execute once they got the final version. They signed the draft copy, but had no
attesting witnesses to it. State had dispensing power law. Ct found will was valid.
Even though no witnesses, the dispensing power was used to dispense with the
witness requirement since there was “not reasonable doubt” H and W didn’t
wanted this to be their will, and that their prior will was revoked.
5. NOTE—the UPC dispensing power also allows intent to be the only
requirement if T wants to revoke or revive will as well!
c. Holographic Wills: Informalities? Holographic Wills, 236-249
i. If the will doesn’t comply with the attestation requirement, try validating as a holographic
will.
ii. Requirements
1. Will is written in T’s handwriting
a. Better to have whole thing in handwriting than a form.
b. First generation statutes—everything handwritten with no type at all,
and “entirely dated” with month/day/year. Any type will invalidate the
whole thing or be forced to look at only handwritten portion.
i. Estate of Mulkins, printed language was ignored, even though it
made handwritten portion hard to follow. Probated b/c
testamentary intent was in T’s handwriting
 c. 1969 UPC material provisions—requires signature and material
provisions in handwriting. Problem when testamentary intent is printed
b/c it will be ignored.
i. Estate of Johnson—written names in blanks, notarized, but no
witnesses; testamentary intent was printed, so they were ignored
and therefore not probated. Ct said the printed words were
essential to establishing intent.
ii. Estate of Muder—handwritten on printed form, notarized but
only one witness; under the printed part saying “I give to”, wrote
in beneficiaries and assets. Ct said it was testamentary intent b/c
no way T could’ve ignored the printed “I give to” part right next to
it.
d. 1990 UPC material portions—material portions and signature still need
to be written, but date and testamentary introductory words can be printed.
Testamentary intent can be established by extrinsic evidence, which
encourages court to look at the printed testamentary words
2. T signs it in own handwriting
a. T’s signature is whatever T intended it to be, but can only be done by T,
not by someone else.
b. Just has to answer the purpose of the signature of the Will Act.
c. Can be signed anywhere, but if not signed at end, then raises doubt it was
meant to be a signature rather than just being used to ID self.
3. attestation witnesses are not required
iii. Rationales
1. strongly serves evidentiary function—they’re written in T’s own handwriting, so
shows that T actually wrote it
2. often written when person is in extremis (in peril), so can’t get a witness to attest
iv. Risks
1. lacking formalities
a. although evidentiary function is served well, lacks channeling (not
uniform), ritualistic (no witnesses), and protective functions
b. specific risks: whether T was competent; increased potential for fraud and
undue influence; whether T intended it be will; how to resolve conflicts
btw multiple wills; increased administrative costs
2. ambiguities
a. Kimmel’s Estate, T died on same day as mailed letter to kids which said
“if anything happens” he wants kids to have money in bank account.
Signed it “father.” Didn’t leave residue to anyone. Ct admitted the letter
b/c signature was valid and “if anything happens” supports testamentary
intent.
i. Problem with this case—T didn’t leave residue to anyone
3. signature—since not required that signature be at the end of the instrument, the
question arises of whether T intended it to be will or just identification
v. court should consider:
1. extrinsic evidence
a. testamentary intent—T wants this document to be a will, not just an
intent to make a will in future. This is where Kuralt went wrong.
b. circumstances in which it was written
c. anything else that’s pertinent (past relationships, indication of fraud, etc)
2. the document itself—most importantly has to be in handwriting.
vi. A subsequent holographic will is considered a codicil when it disposes of only part of
an estate
1. In re Estate of Kuralt, T made holographic will leaving his Montana property to
mistress. Then T had formal will leaving everything to wife and kids. T then
 deeded his part of his interest in the house he bought with mistress to mistress
(fake sale). Later wrote letter to mistress saying he’d get lawyer to come to
hospital to make sure she inherits the rest of the property. Mistress wants this to
act as a codicil to the formal will (amending rather than replacing earlier will)
2. Court found the last letter was a codicil, not just future intent to make a will b/c he
intended to dispose of part of the estate to mistress
a. Court considered, all of the documents, extrinsic evidence of T’s past
financial support of mistress, type of close intimate relationship, transfer
of portion of deed and intent to convey the rest
3. this case was wrongly decided— ct inquired about intent to dispose of assets, but
didn’t inquire into testamentary intent. The ct got caught up in the reasonableness
of the gift rather than whether it’s a valid will.
4. Interesting tax consequences—mistress doesn’t qualify for the unlimited marital
deduction, so the property is subject to estate taxes (which comes out of the estate;
ie, the wife and kid’s share).
vii. Conditional Wills
1. a conditional will contains an express clause condition that it be probated only
if a stated event occurs. (conditional clauses tend to show up more in holographic
wills than attested wills.)
2. issue—is it an express condition or just an explanation for why the person is
executing the will?
3. Conditional wills are valid, but not preferred. It’s presumed to be an explanation
for making the will b/c it doesn’t make sense to suppose that T would want to
favor one set of family members if T dies on a trip but another set of members if
he comes back and dies later.
4. Eaton v. Brown, T’s holographic will said she was going on journey and may not
return; in that case she leaves everything to her son. T returned but died later.
Letter probated b/c she was thinking of death, not that particular journey that she
took at that time
d. Revocation: “This world I do renounce …”: Revocation, 251-70, 218-19
i. a will is an ambulatory document, in that it’s subject to modification or revocation by T
during their lifetime. It only becomes irrevocable at T’s death.
ii. UPC dispensing power also works to partially or completely revoke, amend, or revive a
will. It only requires clear and convincing evidence of intent.
iii. Can be revoked writing, by physical act, by presumption, and by operation of law.
iv. By Writing
1. Subsequent writing has to qualify as valid will
a. Subsequent writing can be attested or holographic (even to revoke an
attested printed will)
2. Can be revoked expressly
a. Clear and express statement of intent to revoke; valid even if the only
thing it does is revoke
3. Can be revoked implicitly through inconsistency
a. Subsequent will disposes of property that is inconsistent with prior will;
previous one is revoked to the extent of the inconsistency, UPC
4. Can be entirely or partially revoked. (codicil)
v. By Physical Act
1. requirements
a. Act is destructive in nature (burning, tearing, sometimes crossing out
(see below for partial revocation))
i. Old rule—act has to affect some part of the actual words
ii. Modern/UPC—just has to affect some part of the will
iii. Thompson v. Royall, T properly executed will and then codicil.
T later told atty to destroy both documents in her presence. Atty
 didn’t tear them up, but rather wrote on back of both that they’re
void and to be considered only a memo. T signed it. Ct found it
was not proper revocation and admitted both documents to
probate. The actions taken by T and atty didn’t qualify as
revocation by writing (T didn’t hand-write it, and no attesting
witnesses) or as revocation by act (this ct required that the actual
words on the will have to be defaced).
b. Performed with intent to revoke
c. Can be performed by T or by another person in T’s presence and at
T’s direction
i. Harrison, atty who tore up will at T’s direction and mailed it to her
not a valid revocation since not in T’s presence
2. Risks—fraud, since someone else may have destroyed or marked it
3. Partial revocation by physical act—ie, someone draws a line through a part of
the will. High risk for fraud, so some jurisdictions don’t permit it (and leave the
will as is).
a. Jurisdictions that allow revocation by act can dispose of that property by:
i. add revoked gift in residue of estate
ii. dispose of revoked gift by intestacy statute.
iii. apply dependent relative revocation to restore the gift to the
original beneficiary
vi. By Presumption
1. Subset of physical act
2. Will was last in T’s possession but can’t be found, rebuttable presumption
that T revoked the will by act.
3. If not rebutted, then considered revoked. But if rebutted, will is considered lost
and can admit extrinsic evidence to prove its terms. Std is clear and convincing
evidence.
a. Some state statutes require a lost will to be in existence at time of T’s
death or that it was fraudulently destroyed during T’s life.
4. Rationale—it’s assumed T will put it in a safe place, so more likely that T revoked
than just lost it.
vii. By Operation of Law
1. divorce
a. applies to
i. majority—applies only to wills, and not nonprobate transfers
ii. minority/UPC—applies to both probate and nonprobate transfers,
such as insurance, pension, trusts, POD accounts
b. effect of divorce
i. majority/UPC—automatically and irrebuttably revokes all
provisions in will in favor of ex-spouse, unless the will expressly
provides otherwise. Converts joint tenancy to tenancy in common.
Treat spouse as if they disclaimed their share, as well as ex-
spouse’s relatives disclaim their share.
ii. minority—revokes only if there’s a property settlement in the
divorce as well
2. execution before marriage
a. subsequent marriage revokes the will.
b. suppose T executes will and then gets married. Majority of states give
spouse intestate share, unless appears from will that omission was
intentional or spouse is provided for in will
c. the spouse can also ask for a forced share, on p 425
3. birth of children
a. T executes will, then gets married, then has kids
 b. Minority—prior will is revoked.
c. majority / pretermitted child statute—give kids part of estate even if born
after will executed; results in revocation of the will to the extent of the
child’s share
viii. Issues
1. Will vs. codicil
a. If subsequent will revokes prior will, then later becomes the sole will
b. If subsequent will only partially revokes or amends prior will, then later
will is a codicil. The prior will is valid to the extent it’s not revoked by
codicil.
c. If not inconsistent, it’s possible to have multiple wills.
d. REVOCATION of a CODICIL does NOT revoke the underlying will. But
revocation of a will revokes all of the applicable codicils, unless T shows
intent that codicil is to act independently of the will.
e. See problems below
2. Duplicate originals
a. Definition—They are multiple originals of the same will, each executed
(not a photocopy of an executed will). Avoid doing this. Put “copy” at
top of photocopies.
b. Revoked by act or writing—if done to one duplicate original,
automatically revokes all the rest of the duplicate originals
c. Revoked by presumption—split on the issue
i. Revokes the rest—since revocation by presumption is a subset of
revocation by act, then use the same rule.
ii. Doesn’t revoke the rest—ie, one or more of the duplicate originals
is still around. Reasoning is T usually takes good care of a will,
but if it’s a duplicate original then assume T won’t take as good
care of it, b/c they know there’s another one elsewhere.
d. Harrison v. Bird, T executed duplicate original wills. Took one home
and left one with atty. Called atty and told to tear it up b/c revoking it.
Atty does it in presence of secretary and mails it to T. Torn pieces can’t be
found after T’s death.
i. Ct held not valid revocation by physical act since it wasn’t in T’s
presence. But ct also found that b/c the torn pieces couldn’t be
found, use the presumption doctrine like you would for a single
will. Therefore will is revoked.
ix. Dependent Relative Revocation / Ineffective Revocation
1. T makes will and then validly, but mistakenly revokes it
a. Revoke by act—Ex, T crosses out line in will, then writes something next
to it (the addition is an invalid holographic will, and is a mistake of law)
b. Revoke by writing—Ex, T properly executes a codicil revoking part of an
earlier will, but it’s based on a mistake of fact.
2. DDR doctrine: the court will hold the revocation ineffective and probate the prior
will when:
a. Revocation was based on a mistake of fact or law
i. The mistake has to be beyond T’s knowledge
b. T wouldn’t have revoked if knew the truth
i. It’s based on the rebuttable presumption that T would want
revocation to be disregarded if T knew there was a problem with
the revocation.
ii. Ex, T changes $1000 gift to $500 by crossing out and writing it.
DRR not used b/c presumption was rebutted. See problems below.
c. there is an alternative disposition plan OR mistake is recited in the
document.
 3. often used in equitable more than legal ways—case law is inconsistent
4. LaCroix v. Senecal, T’s will left residue ½ to nephew and ½ to friend. Later T
improperly executed codicil b/c one of the witnesses was a beneficiary. The codicil
revoked the residuary clause and replaced it w/ same exact clause, except it called
the nephew by both his given name and nickname.
a. the ct applies DRR to probate the original will. It considered both
documents to determine T’s intent about the revocation
x. sample problems on execution, amendment, revocation, revival
1. p 254 #1, if in Bird the pieces had been found in T’s desk, would the lawyer have
been liable for malpractice?
a. Yes b/c if the pieces were found, the will would be probated and therefore
atty would be liable to the heirs for malpractice.
2. 1 (b) what if the torn pieces had been in file named “revoked will”?
a. probably not as much, since more of a physical act and clearer intent and
less chance for fraud
b. Yes, b/c same result as above.
c. But if jurisdiction adopted the UPC dispensing power, then just need T’s
intent that it be her will or a partial or complete revocation of the will. The
file name would be clear and convincing evidence of intent.
3. p 252, in 2003, T’s will gives everything to A. In 2004, T’s will gives diamond
ring to B and car to C, and no words of revocation. The 2004 will is considered a
codicil, even though it doesn’t refer to previous will. It rather partially revokes by
inconsistency.
a. In 2005, T destroys 2004 codicil w/ intent to revoke it. T dies and 2003
will offered for probate.
i. the 2003 should be admitted since the revoked codicil does not
revoke the underlying will.
b. In 2005, T destroys 2003 will w/ intent to revoke it. T dies and 2004
codicil offered for probate.
i. the 2004 codicil should not be admitted since revocation of a will
revokes all of the applicable codicils, unless T intends codicil to
operate independently of the will
4. p 258 #4, Kroll wrote “cancelled” on margin of each page of will and dated and
signed it in margin. Is this valid revocation by physical act?
a. traditional—not a valid revocation b/c the writing did not touch the words
of the will itself.
b. If state does recognizes holographic—valid revocation since likely to
satisfy requirements of holographic will, since the writing is signature
and date, but also “Cancelled,” showing intent
c. UPC—would be a valid revocation by physical act b/c the new writing
doesn’t have to touch words of the document
5. p 262 #1, Typewritten will provides $1000 to nephew, and T crosses out amount
and writes $1500, then initial and dates it next to entry. What is nephew entitled
to?
a. In state recognizing holographic will
i. Not a valid codicil b/c not enough written in T’s handwriting to
make sense of the change. The rest of the will is printed.
b. state does not permit partial revocation by physical act
i. no revocation and therefore no change, so nephew would get
$1000
c. state permits partial revocation by physical act. Should DRR be
permitted?
 i. if state permits revocation by this method, then gift would not
go to nephew at all, and would be added to residue or dispose
of by intestacy.
ii. DRR should be applied and nephew gets $1000, the original
amount.
d. state permits partial revocation by physical act, what if T crossed out
$1000 and changed to $500. should DRR be permitted?
i. If revocation is permitted, then nephew would get nothing.
ii. Applying DRR could go either way, since doctrine creates
rebuttable presumption that T would want the revocation to be
disregarded if knew there was a problem with the revocation.
Depends on the facts.
iii. In this case, ct didn’t apply DRR to reinstate the larger gift.
6. p 263 #2, T devises $5000 to J, and residue to B. T’s codicil revokes money to J
“since J is dead” but in fact she isn’t. Does J get the $?
a. J gets the money b/c revocation invalid. Apply DRR b/c revocation based
on mistake of fact, which appears in the will.
7. what if the codicil revokes money to J since “I’ve already given J $5000”, but T
actually hasn’t. does J get the money?
a. J does not get the money b/c revocation is valid and effective. Do NOT
apply DRR b/c the mistake was based on something only T would know.
8. what if codicil revokes money to J, stating “I revoke gift to J.” There is evidence T
thought J was dead b/c someone told T that J died, but J is alive.
a. J does not get money b/c revocation still valid. DRR not applied b/c the
reason for the the mistake did not appear in the will.
xi. Revival
1. T validly executes will 1, then validly executes will 2 that revokes will 1. then T
revokes will 2, wanting to give effect to will 1. 3 approaches:
2. English approach—will 1 was never revoked b/c T had not died yet to give will 2
effect. T doesn’t have to do anything to revive will 1
3. Minority—when will 2 was executed, it revoked will 1. T has to do something to
revive will 1. T has to reexecute will 1 or incorporate by reference into new will.
4. revival/Majority/UPC—when will 2 was executed, it revoked will 1. T just has
to intend to revive will 1. If will 2 was revoked by act, ct considers any of T’s
actions and statements (both contemporaneous and subsequent to revocation) to
prove intent that will 1 be in effect. If will 2 was revoked by writing (will 3), the
intent to revive has to be in will 3.
a. Estate of Alburn, T executed will 1, then executed will 2, expressly
revoking will 1. T later told brother she got rid of will 2 and showed him
torn-up pieces. T told someone else T wanted will 1 to be effective. Is
will 1 revived or revoked?
i. Ct found that will 2 revoked will 1, but will 1 can be revived if T
intends it. Ct considered circumstances (was living with brother,
so she did not want to be intestate; failed to make a third will) and
oral statements about first will. Will 1 is revived.
b. will vs. codicil under UPC
i. if will 2 is a will, fully revoking will 1—UPC requires intent to
revive, just as above example in American approach
ii. if will 2 is codicil, partially revoking will 1—UPC follows English
rule, and T doesn’t have to do anything to revive will 1.
c. T dies in 2000. T’s heir is H, and T has safe deposit box w/ 3 properly
executed docs. 1995 will devising everything to A; 1996 will devising
everything to B; 1999 document reading “I hereby revoke by 1996 will”.
what happens until UPC §2-509?
 i. since the 1996 document wholly revokes 1995, and then itself is
revoked, the presumption is that the 1995 will stand
xii. Safeguarding a Will
1. often, original kept with atty, copy given to T w/ location of original noted
2. the atty keeping original criticized since seems to be soliciting business;
a. rationale—if T wants to make changes, they’ll have to ask atty to do it or
ask to get it back so that someone else can do it.
b. in practice, should only do it if client wants atty to.
3. Better to have original with T, copy with atty for this reason.
a. Problem with this is if T marks the original and invalidates the will.
4. otherwise can leave w/ probate court clerk; but it’s rare
e. Incapacity: Contests: Testamentary Incapacity, 141-157
i. Contests in general
1. standing—a party has standing and can contest a will or a provision in it only if the
party will benefit financially if the challenge is successful
ii. General incapacity
1. justifications
a. will should be given effect only if it represents T’s true desires
b. mentally incompetent person is not “person”
c. mental capacity is required by law to protect T’s family
d. public acceptance of law rests on the belief that legal institutions are legit,
and legitimacy can’t exist w/out reasoned decisions
e. assures a sane person that disposition of their wishes will be carried out
even if the person later become incompetent and makes another will
f. protects society at large from irrational acts
g. protects senile or incompetent T from exploitation
2. standard
a. Restatement requirements
i. adult
1. (usually 18+ or if under 18, married or emancipated)
ii. of sound mind (the ability to understand, not actual
knowledge)
1. the nature and extent of their property, and
2. the natural objects of their bounty (family), and
3. nature of the testamentary act, and
4. how these elements relate together to make a disposition
of their property
b. test is one of capability, not of actual knowledge;
i. if actual knowledge were used, then a reasonable mistake would
make you incompetent
c. type of capacity
i. don’t have to be of average intelligence, since half of people
would be incompetent
ii. right to marry is fundamental right—so lowest std for capacity
iii. next is testamentary
iv. highest is contractual—state has an interest in making this higher
b/c it carries the risk that person would become dependent on state
b/c of bad business dealings
d. in order to be unsound
i. need to be insane, hallucinate, or have delusions
ii. can’t be just idiosyncrasies, or departures from normal unless it
bears directly on the testamentary act
iii. burden is on contestant
b. presumption is that person is competent
 i. In re Estate of Wright, T properly executed a will in which he
left $1 each to a couple of people on top of the regular gifts he
gave to family. T had surgery a few years back and a head injury,
lived in dirty shack, gave someone a kerosene-soaked fish, etc.
The attesting witnesses testified about these events.
ii. The ct held T had testamentary capacity. The testimony comes
from the attesting witnesses, who signed the will saying that T was
of sound mind, and therefore subjected them to closer scrutiny b/c
they essentially lied earlier in the attestation clause they signed.
No medical testimony was given and the burden on was the
contestant.
2. Attorney’s obligation
a. Atty should assess capacity before drafting will. Atty can use own
judgment to determine whether person is competent, don’t need to
investigate.
3. remedy
a. the ct will strike as much of the will as was caused by the defect in
capacity
ii. Partial Incapacity
1. T must have capacity while actually executing the will. Can lack capacity both
before and after the will is executed and it will still be valid.
iii. Insane Delusion
1. mistake—if person knew the real facts, would have changed will
2. insane delusion—false perception of reality (ie, a mistake of perception) to which a
person adheres despite all evidence to the contrary
3. doctrine
a. majority—rational person test; if rational person in T’s shoes could not
have reached same conclusion, then delusional (easier to contest)
b. minority—any factual basis test; if there is any factual basis to support
belief, not delusional
4. causation
a. majority—but for the delusion, T would not have made that disposition
b. minority—might have affected test—only that the delusion might affect
the disposition (easier to contest)
5. burden-shifting
a. burden is on contestant to show T had insane delusions
b. then shifts to proponents of will to show that T had reasonable basis for
the delusions
6. societal norms
a. In re Strittmater, T’s doc says T suffered from split personality, b/c even
though T got along with parents, but after they died wrote horrible things
about them. She also was a feminist and jointed national women’s party,
bequeathing them everything. Ct found T insane b/c supposedly she hated
men. (Old case)
7. In re Honigman, T married to W for long time but then had surgery and started
accusing her of cheating all the time. T told atty leave mostly everything to
siblings b/c W was independently wealthy. Strange thing was that W would
always answer phone, got a love-card from male friend, and male friend came over
when T was away.
a. Doctrine—T delusional b/c didn’t pass rational person test. Would’ve
passed any factual basis test since there was some evidence W was
cheater.
 b. Causation—T delusional b/c ct went by might have affected test, and ct
struck the entire will. Would have passed but-for causation b/c possible he
just wanted to provide for siblings b/c wife was already rich.
f. Contests: Undue Influence, 158-86
i. in general—challenges are often made on several grounds; incapacity and undue influence
are often together
ii. definition—Δ influences T to reach different outcome from what T would have done
otherwise
iii. requirements
1. T was susceptible to influence
2. influencer had motive to coerce
3. influencer had opportunity
a. confidential relationship, intimate relationship, dependency
b. problem is that these are the type of relationships that would make
someone want to give them something in the will
4. disposition was the result of the influence
a. influencer received bulk of estate in some jurisdiction, or influencer was
legatee at all
iv. burden shifting
1. presumption of undue influence triggered by burden on contestant to prove by
clear and convincing evidence that there’s
a. some jurisdictions
i. confidential relationship btw Δ and T
ii. Δ received bulk of estate
iii. T had weakened intellect
1. consider general health, state of living; not talking about
intelligence
b. restatement
i. confidential relationship btw Δ and T
ii. suspicious circumstances in making of will
1. consider extent of weakened condition, wrongdoer
participation of will preparation, donor not receiving
independent advice from disinterested party, will prepared
in secrecy/haste, whether donor’s attitude changes toward
others by reason of relationship with wrongdoer, decided
discrepancy btw new and previous wills, continuity of
purpose running btw new and previous wills indicating
settled intent, whether reasonable person would find it
unnatural and unfair
2. to rebut presumption, proponent has to prove by clear and convincing evidence
a. some jurisdictions, disproving all the elements
b. other jurisdictions, that Δ acted in good faith and T acted voluntarily
3. Estate of Lakatosh, T gave Δ power of atty. T’s will was drafted by Δ’s cousin,
and Δ was main beneficiary of the will. Tape recording of execution ceremony
showed T repeatedly claimed nephew tried to kill her. Δ used his power of atty
power to take money from T and give it to his girlfriend, and T lived in squalor
before dying.
a. Ct said undue influence. (power of atty is confidential relationship; Δ was
main beneficiary, weakened intellect showed by bizarre murder claim and
living in squalor).
ii. Bequests to attorneys
1. presumption of due influence arises when atty receives legacy, as well as ethics
violation
 2. exception for family members—when drafting atty is beneficiary of will but is
related to T, then no presumption of undue influence is raised and isn’t ethical
violation either
iii. no contest clause / in terrorem provision
1. def’n—if beneficiary contests will, they forfeit their gifts.
2. make sure to bait the beneficiary with something so that they have incentive not to
contest it
3. policy—good b/c discourages litigation, family quarrels, defaming T; bad b/c
could inhibit litigation proving fraud or undue influence
4. majority/UPC/NJ enforce clause unless probable cause for the contest
5. minority enforce unless contestant alleges forgery or subsequent revocation by
later will/codicil; reason is that probable cause rule encourages litigation and shifts
in favor of contestants
iv. Lipper v. Weslow, T named the Δ, his son and an atty, as beneficiary and executor. Δ also
drafted the will. Had no contest clause that if challenged the will, the beneficiaries would
forfeit their gifts. Will gave reason for disinheriting some members of family in legalese
language, and underestimated number of times Π visited/sent card. T didn’t read will
before signing it, and attested by Δ’s business associates. Before T died, T told people she
wanted to disinherit Π, and it was confirmed that Π never visited.
1. Ct probated the will b/c T wasn’t under undue influence, with an emphasis on her
good physical condition and extrinsic evidence that it was T’s intent to disinherit
the Π. Although there was confidential relationship, opportunity, and motive,
there’s no causation evidence that Δ replaced T’s plan with Δ’s plan.
2. Practice note—don’t put facts in the reason for disinheriting, since it leaves it
open to contesting, makes the family more angry.
3. No-contest clause wasn’t effective here b/c the contestant stood to inherit nothing
anyway from the will written as it was. Could’ve gotten something if T was
intestate, though.
4. Δ unethical for drafting will in which he was a beneficiary, b/c of the conflict of
interest. Will be covered under the family attorney exception, so that no
presumption of undue influence is raise, but Δ’s share was more than if T was
intestate.
v. Sex and Gender
1. perceived attributes of gender are basis of court’s assumptions about undue
influence, which is BS. The court examines the relationship to find T’s intent
(makes sense that T intends to bequest things to people she cares about), but ct will
invalidate “unnatural dispositions”
2. In re Will of Moses, T’s lover H was an atty and 15 years younger, and had
worked for her before. H also cared for her while she was in ailing health. She
gave bulk of estate to H in a will drafted by another attorney and without H’s
knowledge. Drafting attorney knew H was an atty but didn’t ask about the nature
of their relationship or advise about undue influence appearance. Drafting attorney
simply wrote down what T told him to do
a. Ct held presumption of undue influence existed because of their
relationship, that H was an attorney. Presumption could be overcome if T
acted on independent counsel of disinterested party, but T did not actually
receive any advice
b. T could’ve made a trust for H, or done inter vivos transfer.
2. In re Kaufman’s Will, T executed will giving estate to long-term partner. T
wrote letter to family giving reasons for bequeathing to partner. Partner helped T
go to therapy and come out of the closet.
a. The letter was actually a mistake since was old by time will was probated,
probably not enough to overcome presumption of undue influence;
could’ve created a trust.
g. Contest by Fraud, Duress, TI: Contests: Fraud, Duress, and Tortious Interference, 186-97
i. Fraud
1. definition
a. T was deceived by wrongdoer
b. T did something T wouldn’t have done if hadn’t been lied to
c. wrongdoer had intent to deceive T, knowing it to be false when making
the misrepresentation
d. wrongdoer had the purpose of influencing testamentary disposition
2. remedy
a. invalidate the parts (or whole) will that are affected by the fraud
b. failure to execute—impose constructive trust on beneficiaries to remedy
the unjust enrichment. This is different from the trust where there is a
fiduciary duty btw trustee (here, the wrongdoer) and beneficiary (here, the
rightful heir),
3. type of fraud: fraud in the inducement
a. person misrepresents facts and causes T to execute a will w/ provision in
wrongdoer’s favor, or not revoke or execute a will
b. ex, convincing T to change their mind about will. O’s heir apparent, H,
induces O not to execute a will in favor of A by promising O that H will
convey the property to A. While H makes this promise, H has no intent to
convey the property to A.
c. causation problem—knowing whether T would’ve done the same thing if
T knew the facts.
i. Carson, W thought she went through marriage ceremony with H,
lived together for a year, and wrote in will to her “husband X,” but
turns out that H had more than one wife and therefore wasn’t
legally married to W. invalidate the devise?
ii. if lived together for 20 years based more on long and intimate
relationship more than legal relationship. if married for just a few
days, then more on legal relationship. causation is a question for
the jury when it’s in the middle
d. Puckett v. Krida, nurses took care of T w/ Alzheimer’s. One of them was
attorney in fact. Nurses convinced T that relatives were taking money and
going to put her in a home. Nurses listened in on phone, isolated her from
family, made bad decisions about sale of T’s property, and kept T from
contact with realtor. Challenged on fraud and undue influence.
i. Presumption of undue influence met—confidential relationship
(nurses, one was atty-in-fact), opportunity (they had access to her),
motive $$,
ii. Fraud—encouraged false beliefs, intended to defraud T.
4. type of fraud: fraud in the execution
a. person misrepresents character or contents of instrument signed by T,
which does not in fact carry out T’s intent.
b. ex, lie about the paper they’re signing. O has poor eyesight and asks her
heir apparent, H, to bring her the document prepared for her as a will so
that she can sign it. H brings her document that’s not O’s intended will,
knowing it is not the document O wants. O signs it, believing it to be her
will.
ii. Duress
1. definition
a. (when undue influence b/c overtly coercive, it becomes duress)
b. wrongdoer threatens to perform or did perform a wrongful act
c. that coerced the donor into making a donative transfer that
d. the donor would not otherwise have made.
 2. ex, threatening T with harm if T doesn’t do what wrongdoer wants
3. remedy
a. invalidated to the extent that the duress caused the transfer to occur or not
b. can do a constructive trust (just like above), theory based on unjust
enrichment
4. Latham v. Father Divine, T devised almost everything to Father Divine. Π
allged T intended to revoke will and execute new one, but FD and followers
prevented her from doing it through fraud, undue influence, and physical force.
a. Ct found that Π stated a case and could be remedied through constructive
trust, which would order the trustee (Δ) to pay out to the beneficiaries
(rightful heirs)
iii. Tortious Interference
1. definition
a. aka tortious interference with expectancy or intentional interference with
economic relations
b. can’t be used when challenge based on incapacity
2. applies more broadly than challenging a will
a. not used to contest a will, but get tort damages b/c of interference with
expectancy;
b. so can apply to inter vivos transfers as well; can attach more than the will
itself, and can get punitive damages. can do it in court other than a probate
court.
3. procedural
a. Π has to pursue probate remedy first in order to bring TI suit;
b. only if probate remedy is inadequate then Π can bring tort suit.
c. no-contest clause doesn’t apply to tort suit since it’s not contesting the will
4. why limit this doctrine?
a. don’t know what the testator would do, so have to consider lots of
different evidence
b. difficulties defining “expectancy” as a legal concept
i. consider contract law (is it a promise? but not every promise is
enforceable);
c. third parties can bring suit under this cause of action
i. under probate law, only those who would get something under
intestacy can challenge will; but here anybody with an expectancy
can bring a suit
5. requirements
a. expectancy exists
b. reasonable certainty that expectancy would have been realized but for the
interference
c. intentional interference with expectancy
d. interference involved tortious conduct (such as fraud, duress, undue
influence)
e. damages
6. Marshall v. Marshall, Anna Nicole Smith was stripper who married rich old H.
H lavished gifts on her and promised to give half his wealth. H’s son interfered
with her access to money during H’s life, and changed her share into nonprobate
assets, in order to increase son’s own share of estate. The investments only made
sense if the 90-year old expected to live another 5 years.
a. ANS has an expectancy because H kept promising her ½ his money in
trust, and she relied on his gifts during his life. Since they were married,
she could at least count on an elective share, but son interfered with assets
to make them into nonprobate assets.
h. Ambiguity and Extrinsic Evidence: Problems of Interpretation: Ambiguity and Bad Drafting,
365-87
i. Types of ambiguity
1. patent ambiguity—ambiguity that appears on the face of the will. No extrinsic
evidence needed to establish that there’s an ambiguity
a. under plain meaning rule, no extrinsic evidence allowed to construe term,
but is allowed under modern.
b. Smith v. Burt, T devised 80 acres to A, and remaining 140 acres to B, but
didn’t specify which 80 acres he’s talking about.
2. latent ambiguity—not ambiguous until apply the will to the facts. Extrinsic
evidence allowed, even under CL
a. equivocation—description fits two people or things, such as will devises
everything to daughter Susan, but T has two daughters named susan.
b. description doesn’t fit anyone exactly—such as naming Mr. and Mrs. X
living at 100 Main st. as beneficiaries, and then they get divorced and
moved. Didn’t mean that it would go to the second wife, so admit
extrinsic evidence. Latent ambiguity is that the second Mrs. X never lived
at 100 main st.
ii. traditional: plain meaning / no extrinsic evidence rule, no reformation
1. plain meaning rule—plain meaning of the words not changed by outside evidence
that another meaning was intended, even if it goes against T’s intent.
2. Extrinsic evidence allowed only if there is latent ambiguity (not patent)
a. criticism of rule—the meaning of the words are the person’s, not one
“real” meaning;
b. Support of the rule—oliver Wendell holmes want the meaning to be the
public’s meaning in the writer’s circumstances; increases the potential for
fraudulent claims and increased litigation
c. Personal usage exception—if T always called someone by a nickname,
then extrinsic evidence admitted to show this
3. Mahoney v. Grainger, T’s residual clause in will stated “All the rest of my estate
I give to my heirs at law living at the time of my decease, to be divided among
them equally, share and share alike.” T made statements that she wanted to give to
cousins to share, who she thought was her nearest living relatives. Technically,
her aunt was nearest living heir.
a. No ambiguity in the will, so statements about T’s intent not admissible.
Even though the plural form of heirs was used, it could mean one person in
common usage.
iii. correcting mistakes without power to reform
1. modern rule—rejects plain meaning
a. to determine whether there is ambiguity, can admit extrinsic evidence
b. once there it an ambiguity, it can be latent or patent
c. then admit extrinsic evidence of intent in order to construe the ambiguity
2. rule—the court doesn’t add or substitute words, but strikes words that are
erroneous, and then applies the language to the property or person that it
otherwise describes.
a. Arnheiter v. Arnheiter, Will provided that T’s undivided one/half interest
of premises known as No. 304 Harrison Avenue, Harrison, NJ” be sold
and put in trust. T mistakenly wrote 304 Harrison rather than 317
Harrison. Ct didn’t change the language by substituting or adding words.
Instead, rejected the erroneous portion, which was 304. The rest of the it
described her property interest on that street, which as applied could only
mean the house at 317.
 3. Rule—when easily mistaken details of identification are involved, the ct
should receive evidence tending to show there’s a mistake and should
disregard details when proof establishes that a mistake was actually made
a. Estate of Gibbs, T’s will stated “to Robert J. Krause, now of 4708 n. 46th
st, Milwaukee.” T knew Robert W Krause, not Robert J. Krause. RWK’s
address was wrong as well. Ct found no ambiguity, so can’t admit
extrinsic evidence, but then decided to disregard the middle initial and
street address b/c they’re an easy mistake to make and there’s clearly
demonstrable intent.
iv. Openly Reforming Wills for Mistake
1. definition—reformation—reformation is equitable remedy that would correct
mistaken term in will to reflect what T intended will to say;
a. criticism of reformation—court can only interpret the words T actually
used, and not interpret words T is purported to have used. Increases
litigation and chances that T’s written words being ignored.
2. Restatement, Reformation for mistake
a. Ct can reform any donative document, even where no ambiguity, to
conform to T’s intent when there’s clear and convincing evidence:
i. That mistake of fact or law affected terms of doc
ii. Of donor’s intent
b. Could apply to trusts, wills, other testamentary instruments
3. Fleming v. Morrison, B wanted to sleep with F, so B made fake will with her in
it. After B signed it, he told atty about true purpose. Ct admitted extrinsic
evidence of B’s fake intent to hold the will invalid.
4. Probable Intent, NJ
a. When unforeseen changes in circumstances after will is executed frustrates
T’s intent, ct will step into T’s shoes and distribute as T would have done.
Extrinsic evidence is of course admitted.
b. Ex, particular contingency happens, but wasn’t provided for in the will
1. Srivener’s Error Rule
a. Clear and convincing evidence of drafting atty’s error
b. The drafting atty’s error misled T into executing will on the belief that it
would be valid,
c. then extrinsic evidence of the mistake is admissible to establish intent and
correct the mistake, regardless of whether the language is ambiguous.
d. justification for scrivener’s rule
i. consistent with other doctrines, such as fraud, duress, lack of
capacity, insane delusion, which also admit extrinsic evidence of
T’s intent.
ii. T didn’t make a mistake, the drafting attorney did
iii. High burden of proof, since needs to be clear and convincing
2. Erickson v. Erickson, T’s will named D as main beneficiary, and then got married
to her just a few days after executing the will. Under state law, though, the
marriage automatically revokes the will unless there is an express provision for
marriage. There was extrinsic evidence T intended that will not be revoked by the
subsequent marriage, and that it was just atty error not to put the provision in there.
Ct used scrivener error doctrine that clear and convincing evidence of atty error
and its mistake on T’s intent admits extrinsic evidence and validated will.
i. Scope of Will: Problems of Interpretation: Putting the Pieces Together, 271-86
i. even if will doesn’t comply with Wills Act formalities, can still consider extrinsic evidence
under incorporation by reference and acts of independent significance.
ii. Integration of Wills
1. threshold question is what constitutes the pages of the will
 2. doctrine of integration— all papers present at time of execution, intended to be
part of will, are integrated in the will
3. Precautions—staple sheets, number all pages X of Y number of pages, initial
every page in margin
iii. Republication by Codicil
1. Republication by codicil—will is treated as reexecuted when its last codicil is
executed
2. republication must be consistent with T’s intent
3. effect on preexisting will—Ex, T revokes will 1 by will 2 and then executes
codicil to will 1. Will 1 becomes republished, and the will 2 is revoked by
implication
4. curative powers—if there are problems with the original will’s execution that
don’t affect the validated of the whole in whole, the doctrine can fix them. Ex,
interested witness, undue influence on only a part of the will.
a. ex, purging statute revokes gifts to attesting witness who are beneficiaries.
Will 1 gives everything to A; A&B are witnesses. Codicil 1 gives money
to C; C&D are witnesses; Codicil 2 gives ring to C; D&E are witnesses.
b. Because the last codicil used disinterested witnesses, it reexecutes will 1
and codicil 1. A and C can keep their gifts.
iv. Incorporation by Reference
1. incorporation by reference—a valid will can incorporate a document by
referencing it, even when that other document was not executed with Wills Act
formalities.
2. requirements
a. will has express provision of intent to incorporate the document
b. the will describes the document with reasonable certainty
c. the document being incorporated was in existence when the will was
executed
i. justification— third factor necessary b/c if you can use a future
document then you are effectively changing the will with a future
non-existent document. creates fraud, duress, etc. dangers.
a. Clark v. Greenhalge, T’s will gave everything to executor, except for tangible
personal property that she would list “by a memorandum” she would make and
give to executor. T made a memo and a notebook with lists, and dated it.
b. Ct held that even though the express intent listed only the memorandum, the
language of the will was broad enough to include the notebook as well, and the
will described the notebook with reasonable certainty. As for the notebook being in
existence at the time the will was executed, T also executed codicils to the will
after the notebook entry was made. The codicils reexecuted the will.
i. T could have created a memo and reupdated the will via codicil every time
she made a change to the list.
c. UPC Separate Writing Identifying Bequest of Tangible Property
i. It modifies incorporation by reference doctrine by waiving the requirement
that the document be in existence when the will is executed, as long as it
only disposes of tangible personal property (not money). The writing can
be amended after the will is executed as well
ii. Johnson v. Johnson, T’s will was typewritten, but wasn’t dated, signed or
had attesting witnesses. Handwriting at bottom mentions the will above it,
T made another gift, dated and signed it. Everything was written on the
front of a single sheet of paper.
iii. The typewritten part was obviously not executed with proper formalities.
But the codicil is a valid holographic codicil since in handwriting, dated,
and signed. It also incorporates by reference the will above it, since it
refers to “this will” and the codicil then republishes the will.
 2. Acts of Independent Significance
a. Also called doctrine of nontestamentary acts.
b. UPC, Events of Independent Significance
i. a will can dispose of property by referencing facts outside of the will, as
long as the fact has significance which is independent from the will
c. effect—T can essentially change the will w/out executing a codicil.
d. Ex of act, T’s will gives $1000 to her son-in-laws, everything in the garage to her
brother, and $10,000 to people in a letter she’s going to give to executor. When
the will was executed, her daughters were single. When T died, she had a new
lawnmower in the garage, her daughters got married, and the letter listed her
daughters as recipients of the $10,000.
i. Son-in-laws—ok, since it has significance outside of its affect on the will.
ii. Lawnmower—ok, since putting lawnmower in garage is valid purpose
iii. Letter—not ok, since the letter does nothing more than give money under
T’s will. Its only purpose is to control who takes under T’s will.
e. Ex of writing, W’s will provides that if H predeceases her, his will would control
W’s estate. When W’s will was executed, H didn’t have a will, but did later. H
died before W.
i. Incorporation by reference doesn’t work—W can’t do it b/c H’s will
wasn’t in existence when W’s will was executed
ii. Acts of independent significance—W’s will referenced H’s will, which
had its own independent significance, since it distributed his own estate.
3. Comparison of Republication, Incorporation, and Acts of Independent Significance
a. distinguish republication from incorporation
i. republication applies only to prior validly executed will; it can’t make a
prior invalidly executed will valid.
ii. incorporation by reference can incorporate into a will language or
instruments that were never validly executed.
b. Time
i. Republication looks back in time b/c it requires that a valid will be
executed before the codicil is executed
ii. Incorporation by reference looks back in time b/c it requires that the
document it incorporates exist before the will was executed
iii. Acts of independent significance usually looks forward in time b/c it
reverences an act or event to occur after the will is executed.
c. Trusts
i. Republication by codicil—does NOT apply to trusts
ii. Acts of independent significance—DOES apply to trusts
j. Changes in Property and Beneficiaries: Problems of Interpretation: Lapse, Antilapse, and
Class Gifts, 387-405
i. Death of Beneficiaries
1. the default rule is that beneficiary must survive decedent, unless T specifies
otherwise.
2. Lapse
a. Definition—beneficiary doesn’t survive T or alive for probate of the will
b. common law
i. lapsed gift fall to the residue of the estate
1. includes specific devises (piece of property) and general
devises (money)
ii. lapsed residue goes to intestacy (T’s heirs)
1. if it’s a share of the residue, it also goes to heirs via
intestacy rather than to the other residuary beneficiaries
2. ex, residue goes ½ to B, ½ to C. B predeceases T. B’s
share goes to T’s heirs, not C.
 c. UPC/modern—antilapse statutes (below)
d. Practice note
i. Write contingency into will—write in will that it will go to
beneficiary’s heirs, or another person, or go to residue
e. Void gift—ex, beneficiary was dead when the will was executed, or
beneficiary was an ineligible taker (ex, animal), then devise is void. Same
rules as lapsed gifts.
i. Estate of Russell, T’s valid will gave residue to Q and pet dog
Roxy. T made specific devise of jewelry to T’s niece, her only
heir. Q says T meant for her to use the money to take care of dog,
not ½ to her and ½ to dog.
1. extrinsic evidence—latent ambiguity, since didn’t know
it was a dog on the face of the will. Admit extrinsic
evidence of this. To construe the will, no more extrinsic
evidence is needed. Ct found that only looking at will, it
looks that ½ to Q and ½ to dog.
2. void gift—the gift to dog is void, and therefore dog’s
share goes to intestacy, and therefore to T’s only heir.
3. Antilapse statutes
a. UPC §2-605, Antilapse
i. devisee is of a certain relationship to T (grandparent or lineal
descendant of grandparent)
1. NJ is broader and includes stepchildren; NH protects all
devisees regardless of blood relationship
ii. the gift has lapsed (B predeceased, gift is void, slayer statute
applied, disclaims)
iii. gift goes to devisee’s issue who survive T by 120 hours
iv. unless T expressed contrary intent in the will
b. justification—T made the gift b/c intent is for B to benefit.
c. Criticism—if it becomes part of beneficiary’s estate, that estate was
probably already probated, causing administrative difficulties
d. Contrary intent
i. Majority—antilapse statute does not apply if words of
survivorship are in the will, meaning it expresses contrary intent.
The contrary intent can also be made by saying ““all lapsed
legacies and devises or other gifts made by this will which fail for
any reason” go to residue to prevent antilapse from applying.
ii. UPC—additional evidence of contrary intent is needed
iii. Allen v. Talley T devised will to “living brothers and sisters” and
then listed them names, to share and share alike of all of T’s
property. All of them were alive when the will was executed, but
only 2 survived when T died. The ones who died had children.
iv. Not a class gift—b/c the will listed their names individually
v. Antilapse does not apply—the will’s language is that of
survivorship, and therefore antilapse statute doesn’t apply.
vi. Gifts go to—therefore the estate goes to the living siblings only,
and not to the deceased siblings’ heirs.
e. Nonprobate transfers—majority of state make lapse and antilapse apply
only to probate transfers. Minority will apply it to POD accounts, trusts,
insurance policies. Nobody applies it to joint tenancies.
f. Devise to spouses—antilapse does not apply to lapsed gifts to spouses
under CL and UPC
i. Jackson v. Schultz, T had no heirs. T devised everything to W,
who had children from previous marriage. Will gave to “W and
 her heirs and assigns.” Antilapse statute doesn’t apply to spouse,
unless the language “and her heirs and assigns” created substitute
gift in W’s heirs. Otherwise gift lapses and escheats to state b/c
he’s intestate w/ no heirs.
ii. Ct changed the words in the will in order to save the gift from
escheating and preserve T’s intent. “to W and heirs” would be fee
simple, but “to W or heirs” would create substitute gift to heirs if
W is dead.
4. Class gifts
a. Class gifts are gifts to more than one individual and inherently includes a
right of survivorship.
b. Common law—if gift fails to go to one member of the class, it goes to the
rest of the class, and not deceased member’s heirs.
c. UPC / majority antilapse statutes
i. Applies antilapse to class gifts, so that gift goes to member’s heirs
rather than the other members
ii. Applies to class members who die both before and after will is
executed.
d. Minority antilapse statutes
i. Won’t apply antilapse statute to members who die b/f will is
executed, reasoning that T didn’t have the dead member in mind.
e. Class gift example—T, a widow, devised property “to my sisters” and
residue to stepson S. T had two sisters living, A and B, when executed
will. Sister C died before executed, leaving children who survived T. A
died during T’s lifetime leaving two kids. T is survived by B, A’s kids,
C’s kids, and S. Assume antilapse statute applies to devises to sisters.
i. if antilapse statute didn’t apply to class gifts (common law), then
everything goes to B as sole surviving member of the class.
ii. majority—B takes 1/3 share, A’s kids a 1/3 share, and C’s kids 1/3
share.
iii. Minority of states—C’s kids don’t share b/c C was dead when will
was executed. ½ to B and ½ to A’s kids.
f. Issue: is it a class gift?—have to look at T’s intent to decide if it’s a class
gift (which has a built-in right of survivorship to the other class members)
or if it’s just a gift to multiple individuals (and antilapse statue would
apply). Consider:
i. T’s description of beneficiaries
1. is it a list or does it refer to them collectively?
2. restatement says a class is one where membership is
usually not static and changes until the class members are
entitled to distribution
ii. T’s description of the gift
1. is it in certain shares (not class) or in the aggregate
2. Dawson v. Yucus, T conveyed farm in equal shares to
dead H’s nephews. The farm came from his side of the
family, and she wanted it to go back to them. One of the
nephews predeceased T, but T didn’t change the will.
Extrinsic evidence of T’s intent was not allowed even
though arguably nephew’s death created latent ambiguity.
The will gave specific enumerated shares and there’s no
survivorship right in will.
iii. Common characteristics of beneficiaries
iv. T’s overall testamentary scheme
 1. In re Moss, T left certain gift to W and niece as trustees,
to pay income to W for life. Then at W’s death, to remain
in trust for niece and niece’s sister’s kids. Residue goes to
W. Niece died before T. Ct said this was a class gift in
light of T’s testamentary scheme b/c it only gave life
interest to W, and didn’t give it to her outright. If it
wasn’t a class gift, then niece’s share would go to W
outright, and that clashes with the life interest he gave W.
g. Gift to individual and class
i. No consensus, even though there’s an example from Moss.
ii. American Law of Property—presume the gift is not a class gift
to single class, but split it up btw individual and class gift.
iii. Restatement—presume the gift is to single class composed of
individual and subclass.
ii. Changes in Property
1. what to do if the property drafted in the will doesn’t exist or is changed by the time
will is probated?
2. types of gifts:
a. specific devise—specific item; most important, so will be satisfied first
b. general devise—can be satisfied using any item that fits the description of
the gift; ex, $$$, all the cars T has
c. residuary devise—what’s left after everything else is distributed
3. Ademption—specific gifts
a. extinction—specific gift is transferred before devisee received it
b. common law—beneficiary takes nothing b/c irrebuttable presumption
arises that T revoked the gift.
c. modern—substitute something that beneficiary can take. T’s intent was to
give something of value to beneficiary
4. Satisfaction—general gifts
a. After T executes will, T makes inter vivos gift to beneficiary under the
will. Should this count against beneficiary’s share of the estate?
b. Common law—if beneficiary is child of T, then treat as against B’s share
c. UPC—an inter vivos gift is presumed not to be in satisfaction (counted
against share of estate) unless expressly said so in will. Applies to both
kids and non-kids of T.
d. Similar to advancement—advancement deals with when T dies intestate;
satisfaction is used when T has a will.
e. ex, T devised to niece $50K for down payment on home; b/f T dies she
gave niece the money. Niece doesn’t take under the will.
f. practice note—put contingency in will for gifts that may already have
been made to beneficiary during life
5. Abatement—T gives away more than T actually has
a. Ex, T give $50K to each niece, but whole estate is only $5K.
b. satisfy the gifts by hierarchy: specific, general, residue
5. Part IV - Non-probate Transfers
a. Will Substitutes; Revocable Trusts; The Decline of Probate: The Revolution in Will Substitutes,
295-322
i. Why use a Will Substitute
1. asset-specific
2. **avoids probate, so financial intermediary takes the place of the probate court**
3. formal requirements don’t apply, so can change at any time
4. criticism—acts like a will, but doesn’t comply w/ wills act formalities
5. justification—the purposes of the formalities are still complied with
 6. nonprobate assets aren’t considered part of the estate, so it won’t be counted
towards elective share; but sometimes they’re counted as part of the elective share!
ii. Superwills
1. can’t use a superwill to dispose of both probate and will substitutes
2. justification—the will substitute, such as life insurance, counts on being able to be
quick and easy to disburse the money
3. UPC says superwill can work only if the will substitute’s contract allows it to be
controlled by superwill
iii. Types (all pure will substitutes, except for joint tenancy)
1. life insurance—works the same as a will b/c doesn’t take effect until death, and
owner can name beneficiary whenever and whoever they want
a. benefit—use current earnings to buy possible future increase in worth,
unreachable by creditors if payable to spouse or child
2. pension accounts—can designate beneficiary that passes owner’s interested in the
event he dies b/c exhausting the account in payout phase
3. joint account/bank, brokerage, and mutual fund accounts—usually a joint
checking account, pay on death account; joint account differs from will b/c they
look more like gifts, b/c creates present interest in cotenant
a. risk—cotenant will take everything out
4. revocable inter vivos trust—like a will b/c owner can retain equitable life interest
and power to alter and revoke beneficiary designation
5. joint tenancy, usually in real estate, securities, cars; called imperfect b/c they
effect lifetime transfers
a. cotenant acquires interests that is no longer revocable and ambulatory
b. when person dies, there is no transfer since dec’s interest is extinguished
iv. Creditors
1. creditors can’t reach if payable to child or spouse
a. life insurance, retirement benefits, joint tenancies
2. creditors can reach, p 310
a. inter vivos trust, PODs, bank accounts
v. Revocable Inter vivos Trusts
1. vocabulary
a. settlor—executes the instrument
b. trustee—owner of legal title, can dispose of property in order to effectuate
settlor’s intent
c. beneficiary—owner of equitable title
i. if settlor is sole beneficiary of trust, and has right to revoke, then
it’s the same thing as a will, and is invalid since didn’t comply w/
formalities
ii. If trustee is sole beneficiary of trust, then legal and equitable title
merge, and trustee doesn’t owe a fiduciary duty to anyone. Invalid.
d. deed of trust—settlor names third party as trustee, but settlor can be co-
trustee
i. settlor can still revoke, amend, etc the right to income,
testamentary power of appointment
ii. another way of planning for incapacity. good to separate trustee
and settlor.
e. declaration of trust—settlor is trustee, and should name successor trustee
for after death.
i. Very close to a will; criticism is that it should comply w/ wills act
formalities
2. Farkas v. Williams, Dec was intestate. On separate occasions bought stock,
taking title in his own name “as trustee for Williams”. He also signed declaration
of trust naming himself life interest, remainder to Williams and retained power to
 revoke by selling the stock. Even though Dec was settlor, trustee, and life
beneficiary w/ right to revoke, it’s still a trust b/c there is a remainder to the
beneficiary, and that’s considered a valid interest.
3. applicable rules
a. formalities of wills—do NOT apply
i. trusts don’t have to comply with requirements, b/c don’t have to
be attested to, witnessed; law of trusts applies
b. subsidiary law of wills—do NOT apply
i. physical revocation of wills, integration, incorporation by
reference, etc. does these apply to trusts? No, use contract law
and law of trusts.
ii. In re Estate and Trust of Pilafas, T named himself trustee in
revocable inter vivos trust. Atty gave T both will and trust to
keep, but when T died neither could be found. Should the
presumption that T revoked the will apply to the trust as well? No,
subsidiary law of wills does not apply because there is a present
interest by the beneficiary in the trust.
c. Creditors of Settlor
i. Beneficiary/settlor is alive—creditor can reach trust corpus b/c the
trust was self-settled and the entire corpus is available to decedent.
ii. Beneficiary/settlor is dead—bank can still reach trust corpus b/c
even though settlor’s power to revoke trust are gone, and
beneficiary’s interest is vested, b/c bank can reach anything that
was w/in settlor’s powers.
iii. State Street Bank v. Reiser, T created revocable inter vivos trust,
borrowed money from the bank, then died. Bank can still reach its
debt against the settlor to the extent that T had power over the trust
during his lifetime.
vi. Benefits and Costs of Revocable Trusts, p 316-22
1. consequences during life of settlor
a. revocable trust puts property management in hands of trustee
b. trust is useful in keeping property separate of husband and wife, which can
become irrevocable at one of their deaths. It can make sure that estate
goes to who they agreed it goes to.
c. trust treated as owned by settlor, so no difference in federal estate, gift tax
d. helps avoid court order/guardianship that T is incompetent b/c trust can
plan for contingency of incapacity (alternative to durable power of atty)
e. no tax benefits for settlor since revocable trust is considered T’s property.
2. consequences after death of settlor
a. trust costs less since avoids probate system, but drafting trust itself has
some cost.
b. trusts are quicker to administer and better when T has part in business
since trustee can invest more flexibly than executor
c. trusts bad b/c longer statute of limitations for creditors than with a will
(malpractice claims SOL, too). It’s the normal one that would apply if S
was alive.
d. trusts are private, but wills go through public probate process
e. trust avoids elective share statutes to family members; although courts will
use equity to give them some
f. avoids ancillary probate since it doesn’t have to go through probate at all
b/c title to the land is changed to the trustee during S’s lifetime.
g. can choose governing law over the trust (except for real property). T
usually can’t pick the governing law for testamentary trust, it’s T’s
domicile at time of death (it dictates probate). Good if you want to avoid
 RAP. (although UPC lets T pick governing law for will & testamentary
trust)
h. avoids will contests since it’s harder to prove incapacity and undue
influence. Heirs of decedent can’t see trust instrument, so have to spent
money to bring suit before even knowing if they have a chance of winning.
i. No tax benefits for settlor, since estate tax is the same.
vii. Pour-over wills
1. definition—T writes a will that expressly give property (often the residue) to the
trustee to distribute according to trust (separate document)
2. advantage—a revocable inter vivos trust avoids probate, but only applies to assets
that are already placed in it, so would have to update it all the time if want to make
sure everything is in it. Pour-over will puts everything in the trust when T dies,
and T doesn’t have to do the updating all the time. It’s uniform administration.
3. inter vivos vs. testamentary trust
a. a testamentary trust is funded when T dies, and is written in the will itself.
b. inter vivos trust is often funded when T is alive, written on separate paper
4. theories to validate the pour-over clause:
5. facts of independent significance—trust must have assets during life
a. as long as trust is funded inter vivos, then the trust has its own significance
b/c the beneficiary has an interest
b. doesn’t matter if it’s funded before or after will is executed, just as long as
T is alive
c. trust amendments are effective.
d. trust not subject to probate court’s supervision
6. incorporation by reference—the will incorporates the trust
a. the trust doesn’t have to be funded during T’s life, but the trust instrument
must be in existence when will was executed
b. BUT trust amendments not incorporated since made after will is executed;
take care of this by reexecuting will or republication by codicil
c. trust is subject to probate court supervision since it’s now part of the will.
7. Uniform Testamentary Additions to Trust Act / UPC
a. Will refers to the trust, the trust is in a separate writing, and the trust is
executed anytime before T dies (doesn’t have to be executed b/f will).
b. Amendments are effective even after will executed.
c. it can be unfunded during life (like testamentary)
d. but not subject to probate court supervision (like inter vivos)
e. Wills Laws application—since a UTATA trust can be unfunded like a
testamentary trust, debate over whether subsidiary law of wills applies.
f. Clymer v. mayo, T executed will and revocable inter vivos trust. Will
gave certain property to H, and residue in trust. T’s life insurance and
pension put in trust as well. T and H divorced, and T died w/out changing
will or trust. Although trust was unfunded during life (life insurance and
didn’t retire yet), it was UTATA trust, so valid. Statute automatically
revokes portion of will that goes to ex-spouse, but H says can take under
the trust since wills laws inapplicable to trust. But ct said that T
considered will and trust as one document, therefore should trust like a
testamentary trust and apply the divorce statute, esp considering it was
unfunded at death. Trust assets went to contingent beneficiaries.
b. Life Insurance: Payable-on-death (POD) I: Life Insurance, 322-33
i. Life insurance is a classic payable-on-death contract, and doesn’t need to comply w/ Wills
Act formalities.
ii. Term Life
1. when term expires, policy needs to be renewed.
2. cheaper than whole life policy, no value before insured dies.
 3. pure insurance, no savings feature
4. is intended to replace income, so only really use for 20 years or so until kids grown
iii. Whole Life
1. person insured for entire life.
2. combination of life insurance and savings plan. after many years the policy is paid
up/endowed, so that no further premiums are owed. Therefore it has value even
before insured’s death.
3. forced savings feature—premium is fixed at same amount throughout the time
they’re payable, regardless of age
4. settlement options—lump sum payment, annuity for rest of beneficiary’s life,
interest for years followed by payment of principal, periodic payments of interest
and principal.
iv. Common law—only life insurance contracts were exempt from Wills Act formalities, not
POD contracts in general
1. Wilhoit v. Peoples Life Insurance Co., O names S beneficiary of life insurance
policy, then dies. S takes the money and reinvests it w/ the insurance company in
a POD agreement. S names R as beneficiary of the POD. R predeceases S,
naming L as beneficiary in will. S later dies and in will puts the money in trust
with B as beneficiary. Ct says POD contract was invalid testamentary act b/c
didn’t comply w/ formalities. Construed POD as independent contract, not
insurance contract (which would be exempt from formalities). Therefore disburse
according to S’s will, and give money to B.
a. Ct could’ve reasoned better. Could’ve said there’s implied survivorship in
POD b/c she didn’t intend to give the money to a dead person. Then it
would’ve gone to the contingent beneficiary in the will, B. Same outcome,
better reasoning.
b. could’ve said that the will altered a previous disposition, superceding it.
c. Also could’ve said S had power of appointment, which means she has
power to eliminate old designations and designate new people.
ii. Modern / UPC—most POD contracts, deposit agreements, life insurance, are now exempt
from Wills Act formalities
1. Estate of Hillowitz, T was in investment club, which paid widow money
representing his interest in his partnership in the club. Partnership agreement
stated that on partner’s death, share will be transferred to spouse w/ no termination
of the partnership. Ct upheld this POD contract even though no formalities made.
iii. Law of Wills
1. Antilapse and POD accounts, UPC—applies to POD designations as well, so that
it goes to beneficiary’s issue rather than residue. Of course includes life insurance
2. divorce statute—inapplicable to life insurance policy. Must change
beneficiary.???
a. Cook v. Equitable Life Assurance Society, H named W as beneficiary in
life insurance policy. They divorced but the divorce didn’t mention the
policy, and H didn’t change the beneficiary. H remarried and had kid.
Later made holographic will, leaving everything to new wife and kid, and
specifically the life insurance policy. Ct held divorce didn’t automatically
revoke wife as beneficiary of life insurance policy. H had to change it
himself.
c. POD II: Pensions, multiple-party accounts, and joint tenancies, 333-45
i. Annuities and Pensions
1. pension—it’s a protection against living too long; benefit by using non-taxed
money to put in it.
2. defined benefit plan—payment is by annuity, so that nothing goes to estate after
death
a. annuities—payment every year for the rest of beneficiary’s life
 3. defined contribution plan—employer and employee make contributions to
specific account, so that employee and family are entitled to full amount in account
and would be available to the estate
4. more flexibility—also the option of an annuity with slightly reduced payments in
return for payout to heirs/devisees for 5-10 years after death
5. Egelhoff v. Egelhoff, H named W as beneficiary to life insurance plan and pension
plan. Both governed by ERISA. They divorced and T died intestate. State
divorce law says divorce automatically revokes ex-spouse as beneficiary under
nonprobate asset. If ERISA preempts, then would go to W; if state law applies,
then to T’s heirs. Ct says ERISA preempts b/c of the goal of uniform
administration of the laws. Dissent says uniform administration shouldn’t trump
T’s (presumed) intent.
ii. Multi-Party Accounts
1. includes
a. joint and survivor accounts—both A and B can draw on account and
survivor owns balance after the other dies.
i. Often the court will use the rule that the joint account conclusively
establishes a right of survivorship, and evidence to the contrary is
not admissible.
b. POD accounts—B can’t draw on account until A dies
c. agency accounts—B can draw on account during life, but not after A dies
d. savings account trust (Totten trust)
i. not a trust, but treated as one by the court. Just a savings accounts
w/ beneficiary upon owner’s death.
ii. O makes deposits in savings account in the name of “O, as trustee
for A” O retains right to revoke trust by taking out money at any
time. A is entitled only to the amount after O dies. therefore A is
a POD beneficiary of a trust of a savings account.
2. question is whether subsidiary law of wills apply?
3. there are multiple parties on the accounts, so problem is often that intent of person
opening account is hard to define—is it for convenience or ownership?
a. Franklin v. Anna National Bank of Anna, T had bad eyesight, so S
moved into help him, and T added her name on his bank account so S
could get money if T needed it. Paperwork called it joint tenancy with
right of survivorship. S didn’t deposit or withdraw money, but T told S he
wanted her to have the money when he dies. Later G replaced S as
caretaker. T removed S and replaced it with G on account, along with
letter to bank giving reason for giving access to the account. Ct ruled that
the account doesn’t go to S or G, but to T’s estate b/c joint tenancy wasn’t
T’s intent, it was only for his convenience.
iii. Joint Tenancy in Realty
1. common for married couples since it’s nonprobate asset
2. nothing passes at death b/c T’s interest vanishes upon death; therefore T can’t
devise her share; also means creditors can’t reach T’s share after death
3. considered imperfect will substitute b/c it’s not easily revocable; it requires that all
parties agree to take action.
6. Part V - The Limits of Testamentary Freedom
a. Marital Property Systems: Protecting Survivors: Marital Property Systems, 417-23; 455-62
i. Right to support
1. regardless of whether the state is community property or separate property system,
the spouse can ALWAYS get support from the following;
2. social security income—only the surviving current spouse has a right to benefits,
and worker can’t transfer the benefit to anyone else. Ex-spouse can collect if
 worker didn’t remarry and was married > 10 yrs. If surviving spouse is collecting
own SSI, can’t get both, and has to pick just one.
3. pension plan—ERISA ensures that surviving spouse has survivorship rights, but
can waive it under strict rules.
4. homestead—ensures that survivor has a place to live, and protects from creditors
by usually giving survivor a life estate or a lump sum (UPC says $15K). T can’t
deprive them of the house.
5. personal property set-aside—surviving spouse and kids can set aside some
tangible personal property up to certain amount to protect from creditors. T can’t
deprive them of the exempt items.
6. family allowance—spouse and minor children get money to live on during probate
process. Can be limited to fixed period or for full time of probate; can be limited
to $ amount or standard of living.
7. Dower and curtesy—old form of providing spousal support. H or W has a life
estate in the other’s real property if one dies. Mostly abolished
ii. Alaska / novel
1. the couple can choose if they want community or separate property
2. even couples in other states can choose in will to use Alaska law to decide.
iii. separate property (majority, including NJ)—H and W own separately all property each
acquires, except those which they agree to jointly own.
1. relies on support theory
2. Separate property is
a. property acquired before marriage, or during marriage if by gift or
inheritance, as long as kept separate
b. couple can agree to own the property as community property to achieve
tax benefits
3. scope
a. traditional extends to probate assets from before and during marriage
b. latest UPC extends to probate and nonprobate assets, but only during
marriage
4. rights of surviving spouse
a. Elective share / forced share—statute dictates minimum share that
survivor gets of decedent’s estate. Usually 1/3 if there are kids and ½ if no
kids.
b. See below for rest of details.
5. order of deaths
a. If non-wage worker dies first, then there’s nothing for her to convey in a
will, except for her own separate property.
6. practice note—it’s malpractice not to mention the elective share
iv. community property (minority)—H and W own everything acquired during marriage in
equal undivided shares
1. relies on partnership theory—both partners contribute to acquisitions
2. Community property is
a. Both spouses acquisitions during marriage;
b. doesn’t include acquisitions before marriage and gifts and inheritances
during the marriage. Consider those separate property.
c. Most states have H and W own equal shares in each item of community
property at death, not equal undivided shares in the aggregate of the
property.
d. H and W can agree whether they want something to be separate, though.
3. rights of surviving spouse
a. Surviving gets their share outright, and decedent can dispose of their half
however they like
4. scope
 a. applies to all property, regardless of probate or nonprobate, I guess
b. If something is a death transfer, the surviving spouse gets ½; but if
something is an inter vivos transfer, then the surviving spouse can set aside
only unreasonable transfers
5. order of deaths
a. if non-wage earner dies first, she can still devise half of the community
property.
6. widow’s election
a. T gives W a conditional gift. Ex, T’s will gives all of his community
property to W as life beneficiary, remainder to others, as long as W
surrenders her own half of the community property.
i. W takes under will—therefore she gets the trust , but gives up her
½ interest in the community property
ii. W doesn’t take under will—therefore she keeps her own ½ interest
outright, but doesn’t get T’s interest.
b. Alternative to forced widow’s election
i. both H and W put community property in revocable trust, pay
income to H and W for their joint lives and life of survivor,
remainder to kids or others
ii. becomes irrevocable upon one of the couple’s deaths
iii. advantage—uniform administration and assurance their property
goes to kids
7. tax benefits of community property
a. income tax advantages, not estate tax (unlimited marital transfer
exemption)
i. Transfers that currently qualify for the marital deduction:
1. H transfers property to W in fee simple to W
2. H creates trust giving W income for life w/ power to
appoint trust principal at death
3. H creates trust giving W income for life (QTIP trust)
b. survivor gets a tax break on a stepped up basis on the value of the property
when the T dies, not when the property was bought. Ie, only have to pay
taxes on capital gain from when T dies.
c. ex, Land was worth 100K when purchased, 300K when T died. Surviving
spouse owned half of the property, but now owns it all. Spouse then sells
for 325K. Survivor only have to pay tax on the 25K capital gain, rather
than pay taxes on the 300K – 100K = 200K/2 = 100 + 25 = 125 gain in a
separate property state.
8. practice note—don’t tell a couple that a joint tenancy is the same thing as
community property. Community property has a huge tax advantage.
9. Possible reform
a. Superwill—person can draft single document which can talk about probate
and nonprobate transfers and go through single administration (mentioned
above w/ nonprobate transfers)
b. Problems w/ this—might pose more problems than solutions, since would
be hard to figure intent of T when trying to disburse the amounts
10. Community property with right of survivorship—new form of community
property in community property states
a. decedent can’t dispose of his share by will, it passes by right of
survivorship to spouse
b. purpose is to avoid probate costs on decedent’s ½ share
v. Conflicts
1. conflict of laws
 a. Survivor rights—law of marital domicile at time of spouse’s death
controls survivor rights
b. Real property—law of situs controls whether it’s community or separate
(but can still choose to apply law of marital domicile)
c. Personal property—law of marital domicile at time of acquisition
controls whether it’s community or separate
2. Move from separate to community state
a. Assume couple’s home is in wage-earner’s name, and therefore would be
considered wage-earner’s separate property. If they move to community
property state and earner dies, the survivor rights are determined by the
domicile. Survivor is entitled to ½ of community property, but house was
acquired before getting to the state. Survivor not protected.
b. Same thing with if both spouses don’t earn wages in the state. Their
previous respective earnings are still considered separate property, and the
non-wage-earner isn’t entitled to half the previously community property.
c. Quasi-community property—protects survivor by applying to property
owned by decedent while domiciled elsewhere that would’ve been
community property if they lived in the new state when it was acquired.
Then go 50/50 as if they were in community state the whole time.
i. But only applies to T’s separate property, not to the couple’s
property. If non-earner dies first, can’t devise survivor quasi-
community property.
d. Real property outside the state—still is governed by the situs, and will
be protected by the elective share b/c it’s in a separate property state.
3. Move from community to separate state
a. Assume couple’s home is in wage-earner’s name, it will still be treated as
community property w/ each spouse owning undivided ½ share, regardless
of title. Survivor will automatically get their ½ share, but possible also to
take the elective share from T’s ½.
b. Uniform Disposition of community rights at death act—adopted in
many separate property states, which says community property stays
community property unless couple agrees to make it separate (but would
lose tax advantage). Also prohibits survivor from taking the elective share
after getting their automatic ½ interest.
b. The Elective Share, 425-38
i. Rationale for elective share
1. partnership—surviving spouse contributed to decedent’s acquisition; would apply
to ½ the acquisitions during marriage
2. support—want to provide surviving spouse w/ adequate support; would get
smaller share of ALL the estate (either probate and nonprobate; before and during
marriage; check if traditional or UPC)
ii. exercising the right
1. usually only the spouse can exercise it, not survivor’s heirs, devisees, creditors
2. ex, H’s will excludes W. W exercise election, but before time period runs out, W
dies. Should W’s pers rep be able to renounce H’s will & take a forced share?
a. if yes, then W’s elective share of H’s property will pass to W’s
heirs/devisees; supported by partnership theory. Like community property
system.
b. if no, then H’s property will pass to H’s devisees. Supported by support
theory, since W is not alive and doesn’t need support anymore. Like
separate property system
3. incompetent spouse—if survivor lacks capacity, guardian or court can elect it if in
best interest of spouse.
 a. 1969 UPC—court can elect against will after finding it necessary for
support
b. 1990 UPC—guardian can elect against will, but the portion that exceeds
the amount given in the will is put in custodial trust. When survivor dies,
it goes to the devisees from whom it was taken or to predeceased spouse’s
heirs, minimizing the disturbance to T’s testamentary plan.
4. Medicaid eligibility—exception is made for Medicaid eligibility, in that the
elective share must be considered in determining eligibility for Medicaid.
a. In re Estate of Cross, T died, leaving everything to son. His step-mother
the widow, had Alzheimer’s and couldn’t make decision of whether to take
under T’s will or take the elective share. She was also living in a nursing
home, paid by Medicaid. W is required to take the elective share to remain
eligible for Medicaid. If didn’t take it, she’d be guilty of fraud and
therefore ineligible.
iii. Abandonment
1. if spouse abandoned the other, should they get an elective share of each other’s
estate?
a. no—under partnership theory no, since they haven’t invested in each other
b. yes—under support theory yes, since there was a promise in the beginning
of the marriage to support each other
2. Abandonment hard to prove since there’s no formal recognition of separation, like
divorce. Therefore court is reluctance to deny the forced share to abandoning
situation
iv. same-sex couples—no court yet (check new case) has extended elective share when in
spousal-type relationship. If there’s domestic partner statute, though, often can get elective
share.
1. In re Estate of Cooper, T devised bulk of estate to former lover, residue to current
same-sex partner. Current partner tried to force elective share b/c he was in
spousal-type relationship, and should qualify as “surviving spouse.” Ct only
applied rational basis for equal protection challenge, although should’ve used
higher scrutiny since it’s a fundamental right.
2. Lewis v. Harris, gay-marriage is one step closer in NJ
a. Background
i. Hawaii—state spm ct said denying marriage was unconstitutional;
then legislature made constitutional amendment, and then enacted
statute to give some rights to same-sex couples
ii. Vermont—state spm ct said there has to be something equivalent,
called civil union, w/ as many benefits as possible as marriage.
Hard to make it equal to marriage b/c there’s a mobile population
& work in other states, and federal statute doesn’t recognize same-
sex marriage.
iii. Massachusetts—state spm ct says marriage is open to same-sex
couples.
iv. California—mayor of san fran married couples, but then state
legislature revoked that authority. Then state gave rights to
couples to register under domestic partnership law
v. NJ—domestic partnership law gave many of same benefits of
marriage, but not all. Also state statute that added domestic
partner to almost all of probate code. Intestacy, xx, and xxx is the
same for same-sex partners. But didn’t add part about automatic
revocation in will after end of relationship, support and
maintenance while will is being contested, and others.
b. Is marriage btw same-sex partners a fundamental right?
 i. Same-sex marriage is not a fundamental rights b/c of originalism
argument and no tradition of it in the state. Therefore use
something like rational basis test (substantial relationship to
legitimate reason)
c. Are similarly-situated couples being discriminated against (equal
protection challenge)?
i. Equal protection IS violated under rational basis test, since there is
no substantial relationship legitimate reason for state to restrict
rights to these couples. P 43-44 give details of differences in
rights, such as automatically changing last name, back wages
owed to deceased spouse, tax deductions for spouse’s medical
bills, etc.
d. Remedy—Deadline given to legislature to choose to add same-sex couples
to definition of marriage or to give separate parallel statutory scheme for
those couples.
e. Dissent–Same-sex marriage is a fundamental right. Therefore it’s all
about the name; Saying there’s no tradition of same-sex marriage is a
circular argument. Ct should decide this rather than legislature b/c the ct is
the defender of the constitution.
v. Intestacy v. Elective Share
1. scope
a. Intestacy gives people certain percentage of estate; only applies to probate
assets
b. Elective share applies to a will, but spouse can still get a %; applies to
probate and to SOME NONPROBATE ASSETS under UPC
c. Therefore elective share could be more, even though it’s could be a
smaller percentage, since it reaches more assets.
d. Omitted souse’s share page 189 supplement and page 447, 466 – UPC
grants an omitted spouse the right to receive no less than his or her
intestate share from portion of tetator’s estate that is NOT devised to a
child of the testator

2. Tenancy by the entirety

a. Only H and W can own it; like a joint tenancy
b. Operates the same as a joint tenancy for community and separate property
states
3. Conflict of laws
a. Look at the state laws for property rights
b. real property—governed by state in which land sits
c. personal property—governed by state where decedent was domiciled at
time of death
c. Property Subject to Elective Share: Defining the “Net” Estate and Premarital Agreements, 438-
55
i. Statutory Definition
1. Traditional statutes—applies to probate assets, from before and during marriage.
Doesn’t matter how long they’re married.
2. 1969 UPC augmented estate—applies to T’s probate + nonprobate assets
acquired during marriage where T retains certain rights to control, possession, etc.
Also takes into account inter vivos transfers to surviving spouse. Property
acquired before marriage NOT included to be more like community property
system
a. Justification—b/c of public policy, don’t want spouse to evade elective
share
 b. Doesn’t this violate testamentary intent? But it seems a fair restriction.
3. 1990 UPC marital property
a. sliding scale—the longer married, the higher the %
i. criticism—there should be circumstances that trump a sliding
scale, such as when one spouse is taking care of dependants early
in life
ii. counterargument—there are other ways of protecting minor
children, such as requiring support for them out of the estate when
they’re minors
b. applies to probate and nonprobate assets of BOTH spouse during marriage,
as well as before marriage if T retained substantial control
c. includes gifts and inheritances, which wouldn’t be included in community
property state
d. used by many states
e. closer to community property system, and tries to implement partnership
theory
4. NJ’s definition of augmented estate
a. includes nonprobate transfers w/out consideration and given to someone
other than spouse, such as
i. revocable trust where decedent is trustee and can dispose of trust,
ii. any property held w/ right of survivorship w/ another person (its
value),
iii. transfers w/in 2 years of death >$3K to one person
ii. Judicial Response
1. inter vivos trust is part of estate if T retains sole general power of
appointment or power to revoke.
a. Sullivan v. Burkin, H and W separated but did not divorce. H created
inter vivos trust w/ principal assets in it and named himself trustee. He
retained life estate interest and right to withdraw principal, right to revoke.
Did not give anything to W in the trust or will. Ct held it was valid inter
vivos trust. Announced a new rule that if T retains sole general power of
appointment of inter vivos trust, it’s considered part of the estate.
2. trusts created by third parties are not considered part of the estate. Trust has
to be created by spouse during the marriage.
a. Bongaards v. Millen, J had life estate interest in trust established by her
mother. J had limited power of appointment over remainder and power to
terminate. J never terminated trust, but appointed remainder to N. J’s will
intentionally omitted H, and H tried to use elective share. H says trust
would’ve been equitably divided on divorce, he should get share now. Ct
announces new rule above.
3. Illusory transfer—focus is on how much control decedent retained in revocable
trust.
4. Intent to defraud test—some looked to subjective intent, some to objective intent
to defraud surviving spouse of elective share. Objective would be reflected by
control retained by transferor, amount of time btw transfer and death, and degree to
which survivor is left w/out interest in decedent’s property or other support.
5. Present donative intent—focus not on what donor retained, but on whether donor
intended to make a present gift. Use same factors as intent to defraud test for
objective intent.
iii. Premarital Agreements and Waiver
1. spouses can agree to waive survivor’s elective share, but must be agreed to before
marriage and not during marriage
a. seems a clear rule, but is it fair to require them to make decision before
marriage, since don’t really know the spouse yet?
 b. 1990 UPC addresses this and says the right of election can be waived
before or after marriage.
2. premarital agreements are usually enforced, but some concern that there needs to
be full and fair disclosure.
a. 1990 UPC requires the waiver to be voluntary and not unconscionable, as
well as fair and reasonable disclosure of decedent’s finances.
1. the court will enforce one-sided agreements as long as there is adequate
disclosure.
a. In re Estate of Garbade T and W executed prenuptial right before getting
married. T was rich and W had no assets. The agreement waived both
spouses rights to maintenance and community property rights, as well as
elective share. The agreement was prepared by T’s attorneys, and W
didn’t get her own lawyer or even read it or get a copy of it, and wasn’t
advised it waived the right of election. W got some money under will, but
decided to take the elective share. Ct finds no evidence of fraud, just that
W failed to get own lawyer or read it. Presumptively valid.
i. Ct could’ve reasoned that using a sliding scale, H already earned a
majority of his wealth under the partnership theory.
ii. W could’ve argued undue influence, since they were in unequal
positions.
b. In re Grieff, prenuptial agreement btw elderly couple included waiver of
election. H selected and paid for W’s atty. Just months after marriage, H
died and left everything in will to kids from previous marriage. W filed
petition for elective share. Ct found agreement presumptively valid b/c
found no inequality that would shift burden.
d. Cutting Out the Kids, 466-73
i. US Rule
1. All states except Louisiana give no statutory protection to child from intentional
disinheritance. Often the statute will give everything to surviving spouse
a. Louisiana is different, though, since kids <23, disabled kids can’t be
disinherited, unless parents have just cause.
b. Criticism of La—“just cause” reasons seem random. Includes hitting
parent, being a criminal, marriage w/out consent, not calling parents for 2
years.
2. practice note—advise client to give small settlement or put in terrorem clause to
avoid litigation
3. other protections available to kids
a. adult and minor children can bring will contest b/c they have standing to
challenge it. Can use incapacity, undue influence and fraud.
b. minor children are protected through surviving spouse getting an elective
share, and assume that the surviving spouse will take care of them
ii. Alternatives from Abroad
1. England—no elective share; instead has right of maintenance: ct will use T’s
property to support T’s dependents for life, including spouse, ex-spouse who isn’t
remarried, and of course kids.
2. Family Maintenance
a. ct can order distribution from estate to spouse, children, and any other
dependents based on their needs, size of estate, their std of living, and
claims of others.
b. Ct considers the dependent’s current and future needs, not just what
T provided for them earlier in life.
c. Lambeff v. Farmers Co-operative Executors, Australia. T’s will gave
to sons and not daughter. The sons lived in a trailer park and had little
education or prospects, and have kids. The daughter was from former
 marriage, and she had a good job, education, an apartment, and no kids.
Daughter wrote to T a couple of times, but received no reply. Daughter
sued under family maintenance provision b/c she did not receive money
for her proper advancement in life. Ct considered daughter’s needs with
son’s needs. Daughter arguably would’ve done better with father’s help.
Ct gave her $20K
3. arguments for family maintenance model
a. flexible, since it’s tailored to need and lifestyles
b. ethical appeal, since responsibility for kids shouldn’t stop at death, and
behavior of family members is evaluated as well
c. performs social welfare functions as well
d. little intrusion on freedom of testation, since doesn’t apply automatically
e. creates incentives to do well
f. equitable solution
4. arguments against family maintenance model
a. inheritance is a statutory right, not fundamental right; therefore kid being
disinherited isn’t violating a fundamental right
b. probate system staffed by lay judges chosen by politics rather than merit
c. promotes litigation
d. increase unpredictability of the system, so planning is difficult
e. threat to family harmony and privacy, since could air dirty laundry easily
f. intrudes on testamentary freedom
iii. Pretermission Statutes
1. Pretermitted child—kid is born or adopted after decedent is executed
2. It’s needed b/c often people don’t keep their will updated.
3. Helps perform social welfare function
4. Assumes that testator would include child in will. All states have this statute
5. Some states include kids that person has but don’t know about
7. Part VI – Trusts
a. Introduction, 485-98
i. History
1. Didn’t originate as testamentary tool; instead originated as a way to get around
restrictions in feudal system (friar were not allowed to own property, so people
donating it to them would convey the land to the equivalent of a trustee to hold it
for the frier); made it easier to exert control w/out owning and relinquish control
w/out selling;
2. Distinction btw law and equity is reflected in trust, which separates legal and
equitable title
3. A lot of wealth is now held in equities, securities, trusts; trust is therefore
characterized by both property law and contract law. Restatement calls a trust a
branch of property law
ii. Types and Uses
1. Inter vivos
a. Revocable inter vivos and Irrevocable inter vivos
2. testamentary
a. it’s created when T dies, either in the will or funded via the will
b. it’s irrevocable—of course, b/c can’t change it after you die, and doesn’t
come into existence until court probates the will.
c. Settlor can’t be trustee or beneficiary
d. trust can be in the will itself and then created in separate document and
then reference it in the will.
3. express trust—created by operation of a legal document
a. declaration of trust—settlor is also trustee.
i. settlor holds it for life; often used as will substitute
 ii. doesn’t require delivery or execution of deed; just need intention
to make trust
b. deed of trust—property is transferred to another person, the trustee
i. requires delivery of property and an executed deed
4. not express trusts / remedial trusts
a. constructive trust
i. not really a trust, but an equitable remedy (slayer statutes)
ii. used to prevent unjust enrichment
b. resulting trust
i. not a remedy, but a correction that the court provides
ii. ex, kids get property when they’re minors and can’t take care of
property legally
iii. it’s an equitable reversionary interest that arises by operation of
law
iv. where express trust fails or makes an incomplete disposition
1. ex, trust names A as life beneficiary, remainder to A’s
descendants. A dies with no descendants. The remainder
goes in a resulting trust for settlor’s heirs or devisees.
5. business trusts
a. used to be more popular than corporations; isn’t the case anymore
iii. Advantages of trusts
1. provide for person(s)—good for kids; incompetents; elderly; those in need of
financial management, make sure spouse passes the money to kids (esp when
they’re her step-kids) (want to protect ultimate beneficiaries); prevent spend-
thrifts; anyone susceptible to influence (drug addicts)
2. provides for flexible distribution of assets—what if beneficiaries circumstances
change, and therefore can change amounts to each person;
3. permits expert management of property—don’t want to be bothered w burden
of management during a difficult time
4. avoid probate—keeps it private, it’s quicker, and sometimes cheaper
5. avoid taxes—federal estate taxes still apply, but could affect income tax. If in
irrevocable trust during life, then would be taxed at beneficiary’s lower rate. Also
helps with inheritance tax for the beneficiary.
6. avoid creditors with discretionary trust
a. Discretionary trust—T devises property to X in trust, and provides that
trustee has absolute discretion to pay income or principal to A, or can
provide that trustee be given discretion to pay income to a class of persons,
like A and her issue. These trust are useful for lessening tax burden on
family by distributing income to those in the lower tax brackets, and
preventing creditors of beneficiary from reaching any of the trust money.
Creditors can include ex-spouses wanting alimony or child support, unpaid
taxes, etc. Creditors can’t reach trust as long as beneficiary isn’t paid.
7. avoids conflicts of interest—separates the benefits of the trust from the burden of
the trust.
iv. Parties to the Trust
1. Problem on p 493, O transfers securities worth $100K to X in trust, to pay the
income to A for life and then to B for life. On the death of the survivor of A and
B, the trustee is to distribute the trust principal to B’s issue then living.
a. settlor—O has equitable reversion (called resulting trust)
b. trustee—X has legal title to the trust assets, and has fiduciary duty to
invest and manage the assets for the beneficiaries.
c. beneficiary—A has equitable life estate
d. beneficiary—B has equitable remainder for life
e. beneficiary—B’s issue have equitable contingent remainder in fee simple
 f. *be sure to identify everyone’s interest in the trust*
2. one person can be all three hats, as long as there is another beneficiary or
trustee
3. Settlor
a. Settlor can be both trustee and beneficiary, but there has to be another
beneficiary at some point in the existence of the trust. After death is ok. If
settlor is trustee, they just has to have equitable duties to someone else, or
else legal and equitable title would merge and just have a fee simple.
4. Trustee
a. Holds legal title
b. Trustee owes fiduciary duty to beneficiaries
i. Fiduciary duty means: loyalty, prudence, and subsidiary duties. Is
the highest duty under the law.
ii. loyalty—trustee has to administer the trust solely in interest of
beneficiaries
iii. prudence—objective standard of care
iv. subsidiary rules
1. duty of impartiality btw class of beneficiaries (ex, income
beneficiaries vs. remaindermen)
2. duty to keep trust property separate from trustee’s own
property
3. duty to inform and account to the beneficiaries
c. trustee must have active, and not passive duties. If no active duties, then
trust fails and beneficiaries get legal title.
d. Often are banks now, since they have lots of technical experience.
e. Property is transferred from the settlor by deed.
f. Problem 1, p 491. X is named trustee and puts money in safe, but then
later says doesn’t want to be trustee several months after O dies. Trust
was accepted by X since he put the money in his safe deposit box. Also
just put it in the box, rather than invest it (so duty was violated)
5. Beneficiary
a. Holds equitable title
b. can sue the trustee when they think she’s mismanaging the money.
c. Remedies available to beneficiaries for breach of trust is personal claim
against trustee, although no higher priority than trustee’s other creditors
d. but only beneficiaries can reach the trust property, and not trustee’s
creditors
v. Life estate vs. trusts
1. overall— Life estate is difficult to manage b/c it can’t be sold, mortgaged, etc
w/out permission of everyone with an interest. It’s an even worse idea if the
property is personal property, such as mutual fund or stocks.
2. definitional difference
a. Life estate—life tenant has possession and control of property
b. Trust/equitable life estate—trustee has legal title. Best thing to do is make
the life tenant the trustee/beneficiary.
3. Sale
a. Life estate—no power to sell unless granted in instrument; need to get
consent of all remaindermen and reversioners
b. Trust—use a form to give trustee the power of sale
4. Reinvestment of proceeds of sale
a. Life estate—if proceeds go to life tenant, then the power of sale is treated
as a general power of appointment, leading to bad tax consequences
(included in life tenant’s taxable gross estate at death, and otherwise would
not have been taxed). General power of appointment is when donee/holder
 of property (life tenant) is authorized to appoint the property to herself, her
estate, her creditors, or her estate’s creditors.
b. Trust—if life tenant gets proceeds, the money goes into a trust anyway.
Just make a trust from the beginning.
5. Borrowing money
a. Life estate—if life tenant wants to take out mortgage on property, need
consent of remaindermen and reversioners. If explicitly given this power,
then again would be treated as general power of appointment.
b. Trust—power of sale usually put in trust and in trustee’s statutory powers,
as well as power to lease, give oil leases, pay taxes, etc
6. Leasing
a. Life estate—if realistically want to lease to someone, nobody’s going to
rent unless their lease can extend past the life tenant’s life. If life tenant is
given power to accept lump-sum payment in advance for rent, then also
general power of appointment
b. Trust—same as D
7. Waste
a. Life estate—life tenant can’t take out oil, cut down trees, etc b/c it would
be considered waste and remaindermen can sue. If given the power, then
would be general power of appointment.
b. Trust—same as D
8. Expenses
a. Life estate—life tenant has to maintain property, pay taxes, and pay
interest on mortgage. Only responsible for maintenance to the extent that
the income from the property is adequate to cover the expenses.
b. Trust—same as D
9. Creditors
a. Life estate—life tenant’s creditors can seize the life estate and sell it
b. Trust—trust is out of reach of creditors
10. Personalty vs. realty
a. Life estate—personal property often requires specialized knowledge
(stocks and bonds stuff), and law of waste is uncertain here, so that
remaindermen not adequately protected from life tenant’s mismanagement.
b. Trust—trustee owes fiduciary duty to beneficiary, so beneficiary is
adequately protected, as well as those with future interests (remainder
beneficiaries)
11. Miscellaneous
a. Life estate—trespassers can damage the property, eminent domain issues,
liability in tort; rights of life tenant and remaindermen unsettled.
b. Trust—same as I
b. Creating a Trust I: Intent and Property, 498-518
i. Requirements for Creation (trusts can be contested)
1. Intent—Intent to create trust, not just the intent to dispose of assets
a. don’t need to use the word trust in the instrument
b. T’s intent turns on whether T meant to create simply a moral
obligation or a fiduciary obligation.
c. Precatory trust—T just hopes that something will be done w/ the
property, doesn’t require it. It’s not a trust, just a gift with a wish
d. Lux v. Lux, T devised residue to grandchildren, to be maintained for the
benefit of the grandkids, and not sold until the last one is 21. Part of the
property in the trust, T had power of appointment over. Ct held that even
though the word trust wasn’t used anywhere in the instrument, it still
created a trust. The court appointed the executor the trustee.
2. Res—property in the trust
 3.Purpose—No ok: if it violates public policy or is illegal, fraudulent
4.Beneficiary—must be ascertainable
5.Settlor—must be competent
6.Trustee
a. Don’t really need one in trust, since court can appoint one
b. Ct can amend the trust to make being a trustee more attractive to do
7. merger issue
a. Ex from class—T created trust for son., and appoints himself trustee, as
well as name himself and son are beneficiaries. If son predeceases T, then
legal and equitable title merge, since the father is both trustee and
beneficiary now.
8. Statute of fraud issues
a. Can be oral, unless it involves real property and therefore has to be in
writing to comply with statute of frauds
9. Rule against perpetuities
a. Often states will allow private trust to endure for 21 years or more, if for
specific purpose such as care of animal, cemetery plot
b. Charitable trusts are exempt
ii. Examples to Distinguish From other Instruments. Is a trust created when:
1. Agency relationship
a. Ex, P gives A written authority to sell real property in another state and
give proceeds back to P.
b. not a trust b/c there’s no beneficiary since it came right back to P. never
was separation of legal and equitable title
c. but similar b/c there’s fiduciary duty
2. Bailor-bailee
a. ex, A and B are neighbors. A borrows ladder from B, and B gives A dog
to care for.
b. Bailment b/c they’re trading and holding for each other
c. there is a fiduciary relationship, but still not a trust
3. Fee simple with condition subsequent
a. ex, O conveys real property to “G and his heirs. But if tobacco sold on it,
then O or his heirs can reenter and terminate estate.”
b. Not even a fiduciary relationship
4. custodial duties
a. Trust has a specific purpose, but custodial relationship is for
beneficiary in general.
b. Jimenez v. Lee, Grandmother bought bond for grandkids’ education.
Father sold bond and put money in account and spent it. Father spent it on
the daughter and rest of family. If father is custodian, he’s given money
generally for the beneficiary, and doesn’t have to use it specifically for
education. Ct found that it was a trust b/c it was for the specific purpose of
education.
c. Other differences are trustee has to keep good records, is personally
liable, and the SOL starts to run as soon as the trustee accounts to the court
(whereas custodian SOL runs when beneficiary turns 21).
d. ex, uncle transfers $10K to sister as custodian for niece. Names sister as
custodian under uniform transfers to minors act. See p 416 (or 516?)
i. close, but not a trust; it’s a custodial relationship rather than
trustee-beneficiary relationship.
ii. little more confusing here since UTMA gifts usually go to the
minor w/ adult as custodian. The situation here is closer to a trust,
but still not one.
5. Equitable charge / Fee simple with condition precedent
 a. Equitable charge is when T devises property to a person, subject to the
payment of a certain sum of money to a third person
b. The equitable charge creates a security interest in the transferred property,
and there is no fiduciary relationship.
c. Ex, the will’s clause leaves all property to J provided she pays $25K to S.
d. not a trust, but gift subject to equitable charge (can also be called fee
simple with condition precedent)
e. means that donor gives to donee on the condition that the donee pay a third
party.
6. Debt
a. The requirement that a trust be funded by res distinguishes it from a debt.
Trust involves duty to deal w/ specific property and keep it separate from
own funds. But a debt is an obligation to pay another, but can use it for
own purposes and commingle it with own money.
b. D transfers $5K to C w/ C’s promise to pay it back with interest.
i. not a trust, just a debt.
ii. there’s a condition on a promise to pay, but no duties between the
parties
7. Guardianship
a. E no longer competent to manage property. E’s mother appointed as
guardian of E’s property
i. it’s a guardianship rather than trust.
ii. court can’t create a trust for E, unless it’s an equitable remedy.
iii. also this arrangement doesn’t separate legal and equitable title.
8. Gift—discussed with both intent and property funding
iii. The Requirement of Trust Property
1. Property segregated from other assets (otherwise simply a debt)
a. Unthank v. Rippstein, Decedent wrote letter that he would pay
beneficiary $200/month for 5 years “as long as he lives.” Later he crossed
out “as long as he lives” and leaves it just at 5 years. Ct found that a trust
was not created b/c this money was not segregated from the rest of D’s
assets. The beneficiary and intent wasn’t clear either. Beneficiary’s
argument that the entire estate went into trust, and only had to pay out the
$200, thereby putting the rest of the estate into a resulting trust didn’t fly
with the court.
b. Easy to compare to Kuralt case, where T also write a letter to mistress
giving her assets, which the court found was a valid holographic codicil
because T supposedly had testamentary intent. The court was swayed by a
lengthy relationship.
2. a trust is not created until it is funded
a. can’t assign future profits to reduce taxation
i. Brainard v. Commissioner, S created trust for future earnings to
lessen taxes (paid out to 4 beneficiaries, making their bracket
lower). Ct held that the trust wasn’t created until the earnings
were actually put in it. Since no res existed when S declared his
intent to create trust, he’d have to do it again when res was added.
Therefore S is taxed on the earnings since they weren’t yet part of
the trust.
b. A person can assign future earnings from an existing contract
i. Speelman v. Pascal, T wrote letter to friend giving her a
percentage of his shares in a play yet to be produced. In the
opposite way from Brainard, the ct found this to be a valid trust
because the donor’s intent was clear and his expectation of profit
was a valid property interest that funded the trust.
 iv. Gifts & Intent
1. Intent
a. beneficiary of a gift can do whatever they want with it, and commingle it
with their other assets.
b. T can make symbolic delivery that is reasonable under the circumstances
and it will be perfected.
c. Hebrew university assoc v. Nye, H and W want to donate library to a
university. H dies, then W starts packing books for the university, and W
proclaims in public that she can’t give any of the book away b/c they’re
not hers to give anymore. Ct found it was not a trust, since W didn’t have
a fiduciary duty or take action like a trustee (strong counterargument that
W did act like a trustee, since she protected and inventoried the property).
Ct held it to be a gift, but wasn’t perfected b/c wasn’t delivered. Ct
considered it to be an incomplete transfer.
d. Hebrew university assoc v. Nye II, Ct found that the gift was perfected
when W made a symbolic delivery to the university by creating a memo
cataloging the books, which was reasonable under the circumstances.
2. funding the trust
a. see Speelman above
a. Mere promise to make a gift
i. Ex, I give you 5% of play if I produce it and if there are any
profits
ii. unenforceable
iii. like gift, since there’s no consideration in exchange
iv. not a trust, since there’s no need for management of the money
b. valid trust
i. ex, O orally declares himself trustee for one year of all stocks he
owns, with profits of the stocks to go to A
ii. indefiniteness of res not a problem, like Speelman
iii. equitable title is given to beneficiary, just for a limited time
iv. oral declaration is okay b/c there is no real property
v. no delivery of trust res is required since settlor is the trustee, and
don’t need to deliver to self
vi. fiduciary duty exists btw O and A, so not just a gift or promise
c. hybrid of brainard and speelman
i. ex, In a notarized writing, O declares himself trustee for benefit of
A of any profits O makes from stock-trading for the next year
ii. no future interests issue, since it’s only for one year
iii. problem is that there’s no res, since profit hasn’t been made yet.
d. Valid trust
i. ex, O trustee for benefit of A, of 5% of profits of play O is writing
ii. res is in trust, although it may exist and it may not (just like
speelman), but it’s clearly defined

see book for oral trust with confidential relationship – court grants constructive trust in case.
c. Taxation o f Grantor Trusts
i. Grantor trust is when settlor retains control over the trust. If it’s of a sufficient degree, tax
the trust as if settlor were the owner to prohibit them from getting tax benefit
ii. But if grantor gives up control (co-trustee w/ adverse party, or irrevocable trust), then
grantor more likely to not have to pay taxes
ii. Reversionary interests, p 516
1. if settlor has reversionary interest >5%, then grantor still has control over the trust
and will be taxed during life of trust, UNLESS it’s for a lineal descendant and
 reversionary interest takes place only if it’s on the death of the
descendant/beneficiary.
d. Creating a Trust II: Beneficiaries, 518-28
i. Valid Beneficiaries
1. beneficiary must be objectively ascertainable (but not if charitable)
a. a description that permits objective identification, such as a class.
b. Clark v. Campbell , Beneficiaries were T’s “friends,” which is a relative
and subjective term. The ct struck this clause and put the property in a
resulting trust that is added to the residue of the estate.
2. Alternatives to a trust when beneficiary is unascertainable
a. T can list friends by name
b. T can give a power of appointment to the executor
i. the appointees (beneficiaries) do not have to be ascertainable
ii. executor is given the power of appointment so she can use her
discretion to distribute the items
iii. no fiduciary relationship is created btw the holder and the
appointees
iv. rather is discretionary, so T has to have faith in person with the
power
3. beneficiaries can’t violate the rule against perpetuities
a. people—It’s possible to name as beneficiary people who don’t exist yet
(future children) b/c they’re ascertainable,. When the beneficiaries are
determined, then the trust is created. Count only by the human lives in
being + 21 years
b. honorary trusts—have to be established in terms of human lives, not
animals lives. It’s possible that the pet can outlive the lives in human lives
in being + 21 years at the time of the trust (tortoises). Actually, in theory
all honorary trusts have the possibility of violating RAP since the
beneficiary isn’t a person.
i. modern—many states adopt wait and see rather than invalidate
from time of attempted creation
ii. UPC allows trust for care of animal for the life of the animal, and
other non-charitable purposes for 21 years.
iii. Alternative disposition—charitable trusts aren’t subject to
RAP; give the animal to a charity, like a zoo. Can’t tag the for the
specific care of that specific animal, but to the zoo as a whole
(which then will spend it on animal, b/c they’d be violating the
trust if they didn’t).
4. honorary trusts
a. ex, pet as a beneficiary, trusts to maintain a gravesite
b. technically fail for want of a valid, ascertainable beneficiary (pets and
gravesites don’t have standing; keep in mind that a child can’t sue but her
guardian can)
c. honorary trust is saved when the purpose is specific and not
capricious/illegal and the trustee is willing to honor the terms.
d. If the trustee stops honoring the terms, then the property goes in resulting
trust back to the estate.
e. In re Searight’s Estate, T gave dog to H, and gave trustee money to pay
H a certain amount per day as long as it lives. If it dies b/f the money runs
out, then divide the rest btw list of people. When T died, dog and all of
the people listed in will were living, and H accepted the dog. Ct held trust
is saved as an honorary trust. It doesn’t violate the rule against
perpetuities since it the money could only last for 4 years max at the rate it
was to be paid out (assuming interest rate at 4%.).
 i. Counterargument could be that it’s possible to violate RAP if
interest rate was really high, since it could last past human lives in
being + 21 years.
ii. Invalid Purposes
1. Illegal, fraudulent trusts
a. Ie, provide for maintenance of drug ring
2. capricious trusts
a. can make an argument that a trust for an animal that’s way in excess of
what it could reasonably need could be construed as capricious purpose
b. UPC lets court reduce the amount necessary if it’s substantially more than
needed
3. against public policy
a. Payment of criminal fines, pay judgment for intentional torts
b. what about creating trust for children of convicted felons? Yes and no,
since it might provide incentives for people to get felons, but then it serves
the society by helping out the next generation.
4. private purpose in charitable trust
a. …
e. Rights of Beneficiary to Distributions: “In the style of living to which they have become
accustomed”: Distributions, 533-43
i. mandatory trusts
1. trustee must distribute all the income
2. ex, O transfers property to X in trust to distribute all the income to A. Trustee has
no discretion to choose either who receives income or the amount
3. support trust—type of mandatory trust,
a. since it it’s limited by an ascertainable support standard. It’s the amount
that’s necessary for beneficiary’s support.
b. ex, “such amounts as are necessary to support my children in the style of
living to which they are accustomed”
ii. spray trust
1. mandatory to trustee (since has to pay all the income), but discretionary as to the
beneficiaries (trustee can pick who they are and how much they get.
2. Ex, O transfers property to X in trust to distribute all the income to one or more
members of a group consisting of A, A’s spouse, and A’s kids in such amounts as
the trustee determines.
iii. discretionary trusts
1. trustee has discretion over payment of income or principal or both.
2. purely discretionary trust—wide discretion standard. Beneficiary has no right to
receive payments, since they’re at discretion of trustee
3. discretionary support trust
a. combines statement of discretion with stated support std
b. ex, “such amounts as the trustee shall, in his uncontrolled discretion, deem
necessary to support my children in the style of living to which they are
accustomed”
4. scope of discretion
a. simple discretion—the default is always to act in good faith (subjective)
and reasonable judgment (objective)
b. extended / absolute discretion—“sole, absolute, and controlled discretion”
doesn’t actually mean that; still have to act in good faith; sometimes
reasonable judgment analysis
5. discretionary trust incurs a duty to inquire
a. this duty requires trustee to make an active inquiry into beneficiary’s
needs. Failure to do so is an abuse of discretion.
 b. Marsman v. Nasca, the drafting attorney was named trustee of a
testamentary discretionary support trust (“after considering sources of
support for beneficiary, trustee in uncontrolled discretion can pay out of
the principal for beneficiary’s support and maintenance”) . The atty failed
to make an active inquiry into beneficiary’s finances. The trust also
included an exculpatory clause. The ct put the burden on the opponent of
the clause to prove it was the result of an abuse of confiden
6. Beneficiary’s other resources—whether trustee must consider them is a question
of settlor’s intent. (is it to maintain a floor or income regardless of other resources,
vs. was it to be used only in case the other resources are inadequate)
a. arguably a rich beneficiary doesn’t need to get paid, but the presumption is
that settlor wants beneficiary to get paid regardless of resources.
7. exculpatory clauses
a. ex, “no trustee is liable except for willful neglect or default”
a. gives more flexible for the trustee to get their job done. Want them to be
exonerated in most cases.
b. Invalid if:
i. it states that it’s not subject to review by any court (b/c it
withdraws beneficiary’s right to enforce, making it really just a
gift to the trustee)
ii. it immunizes against bad faith, reckless indifference, intentional or
willful neglect
c. Marsman, ct put burden of proof that the clause was the result of an abuse
of confidence on the opponent
d. UPC—puts burden on the drafter to prove that it’s fair and was adequately
communicated to the settlor
2. Professional ethics in extended discretion and exculpatory clauses—often the
drafting atty is the trustee, and the atty is drafting the clause. Solution is full
disclosure and written recognition that the settlor understands the clause.
ii. Unitrust
1. life beneficiary is given fixed annual % of total trust, regardless of whether it
comes from income or principal.
2. trustee can then pursue investments that provide greatest benefit, regardless of the
amount of income it produces, since beneficiary gets either or both principal &
income.
iii. Perpetual dynasty trust
1. in jurisdictions that abolished RAP, this allows trusts to last forever. Usually trust
is created for the benefit of settlor’s issue. Usually trustee is given discretion over
both income and principal for greater investment flexibility
f. Creditors: Keeping Creditors at Bay: Discretionary, Protective, and Spendthrift Trusts, 543-57
i. Rationales
2. arguments against creditors reaching trust
a. Protect settlor’s intent, since it was their property to begin with
b. Limits on alienation isn’t novel
c. spendthrift clauses protect beneficiary but also restrict her rights to transfer
the interest
d. the creditor can reach the beneficiary’s interest once it’s distributed; it just
can’t get to it while it’s still in trust
3. Argument in favor of creditor reaching trust
a. too much dead hand control
b. beneficiary incurred the debt voluntarily
c. as for children and ex-spouse, if beneficiary doesn’t support them, then the
State will have to
iv. Can a creditor reach the trust?
 1. Applicable statute
2. Beneficiary’s interests
a. Who is the beneficiary? Settlor can’t protect assets when they’re the
beneficiary.
b. Settlor’s intent and beneficiary’s interest are often aligned, but not always
3. Type of trust
a. Does the beneficiary have a right to the trust?
b. Spendthrift, support, discretionary, hybrid are all treated differently
4. Type of claim / creditor
a. Involuntary or voluntary creditor? Family or commercial creditor?
5. Settlor’s intent
a. American law pretty strongly respects settlor’s intent
6. Trust instrument
a. What does it actually say? It’s a part of what type of trust it is, settlor’s
intent, etc, but can sometimes have extra language that can be illuminating
ii. Once creditor reaches trust, can trustee pay out of trust?
1. Depends on type of trust and law that applies in the jurisdiction
2. possible for creditor to get a court order directing payment to them
v. Default Rule Principles
1. Default is that trust is available to creditors as long as there are no provisions
preventing the beneficiary from transferring their interest. Doesn’t matter if
beneficiary’s interest is discretionary or mandatory. Creditor steps into
beneficiary’s shoes and receive what beneficiary would have received.
2. mandatory trust—creditor can force trustee to distribute it to creditor pursuant to
the terms of the trust just as beneficiary could have
3. discretionary trust—just as beneficiary can’t force trustee to distribute property,
creditor can’t force it either. Limited to what trustee pays out
vi. Types of Creditors
1. Voluntary creditor—Commercial situation
2. Involuntary creditor—Child support, Tort judgments
3. Family vs. commercial
a. Sometimes don’t fall neatly into voluntary/involuntary
b. Doctor is commercial, but didn’t have choice to provide care
c. Spouses are family, but they did have a choice to marry (but not to fail)
vii. Types of Trusts
1. Discretionary trust
a. Trustee has discretion on how to distribute income
b. Creditors can’t compel payment by trustee, b/c trustee doesn’t have to pay
anything out
c. Beneficiary has no enforceable right to receive payments
d. Alimony and child support can reach trust once payment is made, but
harder to get b/c beneficiary doesn’t have claim to money
2. Forfeiture provisions
a. It’s a discretionary trust until creditor tries to reach trust, and then
beneficiary’s interest evaporates and trustee doesn’t have to pay anything
out
3. Trust for support (implied spendthrift clause)
a. Trustee will pay only as much of income or principal is required for
maintenance and support
b. beneficiary has enforceable right to receive payments
c. beneficiary can’t transfer interest (it implies a spendthrift clause)
d. Creditors who can reach trust. Seems like creditor can force a
payment.
i. Alimony and child support can reach trust
 ii. Necessary personal services (medical care) can reach trust
iii. Gov’t claims can reach trust
4. Spendthrift trust
a. The trust terms expressly restrict beneficiary’s ability to alienate interest,
both voluntary and involuntary transfers, and therefore creditors can’t
reach a spendthrift trust
b. Creditors who can reach trust. Depending on if it’s mandatory or
discretionary, creditor can force a payment.
i. Alimony and child support can reach trust
ii. Necessary personal services (medical care) can reach trust
iii. Gov’t claims can reach trust
c. UTC Spendthrift Provision
i. Valid only if it restricts beneficiary from voluntary and
involuntary transfers
ii. Creditors can’t reach trust asset before beneficiary receives it
iii. exceptions to spendthrift provision, so they can get present or
future distributions—child support, alimony, and creditor who
has provided services for protection of beneficiary’s interest in the
trust,
iv. spendthrift provisions doesn’t apply to—fed and state taxes
d. Scheffel vs. Krueger Beneficiary gets mandatory income from trust +
discretionary support from principal. Spendthrift provision, too. Tort
judgment entered against beneficiary. Ct construed state statute to mean
that even involuntary tort creditors can’t reach a spendthrift provision.
e. Shelley v. Shelley. Beneficiary has spendthrift trust with mandatory
income. Beneficiary or his kids also get discretionary payment from
principal in case of emergency. Beneficiary gets remarried a couple of
times and disappears. His ex-wives and children want child support and
alimony from trust. Ct ruled that the children can reach income and
principal of trust since trustee has discretion to pay out for emergency,
both through their own interest and through father’s. Spouse can get at the
income through father’s interest, but not at the principal.
5. Self-settled Asset protection trust
a. When settlor is also the beneficiary of a trust, creditors can still reach it
b. Public policy—you can’t protect your assets from creditors by placing
them in trust for your own benefit
c. Doesn’t matter if the trust is discretionary, spendthrift, or both.
g. Modification and Termination: Preserving Flexibility I: Modification and Termination, 572-87
i. Interests
1. Settlor—want intent to be followed, and American law generally agrees
2. Beneficiaries/remaindermen—varies
3. Trustee—wants to get paid, so will want to keep trust; or maybe get rid of a
problem, so want to get rid of it
4. The state—maybe if termination would help them out in some way
ii. Method: Consent
1. consent from all parties
a. Get consent from settlor, beneficiary and trustee, since they’re everyone
who has an interest. Arguably don’t even need trustee’s consent since they
speak for the settlor, and settlor is still alive.
b. Doesn’t matter if revocable or irrevocable trust; also can be a spendthrift
clause
c. Can’t be against public policy
d. Problems—if it’s a testamentary trust, then the settlor is dead, and can’t
consent; or when a party is incapacitated and therefore can’t consent
 2. consent from settlor if revocable trust
a. settlor retains the power to revoke, so settlor can terminate by herself and
over the objections of others.
b. It implicitly includes the power to modify b/c can terminate and then
create new trust with modified terms.
iii. Method: Trust protector
1. trust protector as power of appointment, so that person can make change in the
trust itself
2. Not full-proof, since don’t know what trust protector will do, but is a good way to
change things outside of the courts
iv. Method: court order via judicial doctrines
1. reformation/correction
a. court will fix obvious mistakes made by settlor/atty drafting it
b. errors where it’s a mistake, and settlor’s intent is clear
c. parallel to wills
2. Claflin doctrine/material purpose rule
a. Doctrine— trust can’t be terminated or modified prior to time fixed for
termination, even if all beneficiaries consent, if termination or
modification would be contrary to a material purpose of the settlor.
b. Look to settlor’s material purpose of trust
c. Trust can be modified if doesn’t contradict material purpose of trust
d. Trust can’t be terminated if material purpose of trust is still ongoing
i. Common law finds it’s still-ongoing if it’s a discretionary trust,
spendthrift trust, support trust, or distribution when beneficiary
reaches a certain age.
e. Serves as example of settlor’s intent trumping beneficiary’s interests
f. In re Estate of Brown, Trust for grandkids education, then to their parents
for their support for life, then terminates and grandkids get the whole
thing. The parents are now elderly and want to terminate the trust to
maintain their standard of living. All of the beneficiaries consent. Ct says
can’t terminate trust b/c material purpose of trust is still ongoing b/c it’s
supposed to last the parents their whole lives.
3. Changed circumstances
a. Even if trustee objects, if beneficiaries consent and there is a change of
circumstances that would frustrate settlor’s intent, then can modify trust.
b. Implemented through
i. administrative deviation (alter terms of way trust is
administered; sometimes just change in trustees)
ii. equitable deviation (if settlor had known about a changed
circumstance, then court will enforce what settlor would’ve
wanted; often used for changes for tax advantages)
c. In re Trust of Stuchell, Trust gave life income to primary beneficiaries,
trust terminates on survivor’s death and gift to remaindermen. One of the
primary beneficiaries is the mother, who has a mentally retarded son who
lives on Medicaid and SS benefits, which have income restrictions for
eligibility. Both primary beneficiaries and remaindermen consent to
modification so that trust will not terminate when life beneficiaries die and
other provisions to prevent son from becoming ineligible for benefits.
i. Mother argues changed circumstances, b/c if grandfather knew
grandson was retarded, he would have created special needs trust
ii. Ct refuse to modify the trust just b/c it benefits the beneficiaries.
iii. Ct should’ve paid attention to whether settlor would’ve objected to
the modification, not just whether it’s better for beneficiaries.
 d. Special-needs trust / supplemental trust—If beneficiary is incapacitated,
it will keep money separate for a certain list of things and still be eligible
for state funding. Statute defines the list of things that trust can pay for.
Public policy issues of burdening the system vs. helping out someone to
put them in better position.
v. Trustee Removal
1. common law—even if beneficiaries all consent, settlor’s intent controls and the
trustee won’t be removed under breach of duty.
2. modern / UTC—still not just all beneficiaries consenting, but can be removed b/c
of in-fighting btw trustees that impairs administration, trust is underperforming, or
changed circumstances.
h. Powers of Appointment: Preserving Flexibility II: Powers of Appointment, 589-91; 607-15
i. Rationale
1. power of appointment is like a power to revoke in the hands of a beneficiary other
than the settlor. Gives the donee/beneficiary the power to deal with changed
circumstances, especially after the first line of beneficiaries die. Settlor is giving
the donee the power to override the trust if the holder of the power deems it
appropriate.
ii. Definitions
3. Donor of the power—person who creates the power
4. Donee of the power—person who receives the power, and can exercise it (appoint
the property)
a. can be anyone, but usually trustee or beneficiary
b. Donee doesn’t have the fiduciary duty that a trustee does b/c it’s a
discretionary power (whether to exercise it, who to exercise in favor what,
what they get, subject to limitations on the power)
5. Appointee—person who donee exercises the power in favor of. (ie, who gets the
property)
6. Takers in default of appointment—if donee fails to exercise power, then the
appointment defaults and goes to the next taker.
7. General power of appointment
a. Exercisable in favor of anybody, including donee, his estate, creditors, and
creditors of estate
b. Donee will be taxed on the property, since can do most things a fee simple
owner can do.
8. Special power of appointment / limited power / non-general power
a. Not a general power of appointment, so not exercisable in favor of donee,
donee’s estate, creditors, or creditors of estate
b. Donee won’t be taxed on the property
9. Testamentary powers—only exercised upon probate of will
10. Lifetime power—can be exercised during life by deed
iii. Example of General Power, T devises property to X in trust to pay income to A for life,
or until time as A appoints, and to distribute the principal to such persons as A appoints
either by deed during A’s life or by will. If A doesn’t exercise the power of appointment, at
A’s death X is to distribute the principal to B.
1. T is donor of the power
2. A is donee of general power of appointment exercisable by deed or will
a. The only difference btw A being owner in fee simple is a piece of paper A
can sign at any time. For A to acquire title, A just has to write “I appoint
myself.” Notice A doesn’t have ownership until exercises the power.
3. B is the taker in default of appointment
a. If A doesn’t exercise power, it doesn’t go to A’s heirs, but to B. If
instrument doesn’t create taker in default, and the power isn’t exercised,
then property passes back to donor or donor’s estate
 iv. Example of Special Power, T devises property in X in trust to pay the income to A for
life, and on A’s death to distribute the principal to A’s issue as A shall by appoint by will.
If A doesn’t exercise the power, at A’s death X is to distribute the principal to A’s then
living issue, such issue to take per stirpes.
1. Diff btw ex 1 and 2: Here, A can exercise power to benefit A’s issue, but A can’t
appoint property so as to benefit A or A’s estate.
v. Purposes
1. taxing distinction
a. Book defines it in terms of IRS code b/c one of the purposes is to avoid
taxes
b. The more control that the settlor retains over a trust, the more likely the
settlor will be taxed on the income. Same thing with power of
appointment.
c. General power of appointment makes the property taxable to the donee.
Special power is not taxable.
2. Flexibility in beneficiaries—May not have identified all the beneficiaries of a
trust yet. Can prefer that initial beneficiaries determine it
3. Deferral of decisions—Can defer who benefits and what the terms are until later.
Person who’s around in the future can make better decisions. Settlor actually
relinquishes some control, but can preserve some intent
4. Incentives—Creates incentive for beneficiary or possible beneficiaries to be nice
so that they’ll get some cash-money
vi. Creditors’ Access
1. special power—creditors can’t gain access
2. general power—creditors can’t reach the property unless donee exercised the
power, and can then reach the property that was appointed. Creditor can’t force
donee to exercise the power. Gov’t also taxes the donee who has general power;
Less popular because of these reasons
vii. How to Exercise
1. it’s exercised any time the donee intends to exercise it
2. residual clause in will that doesn’t reference any powers of appointment
a. majority—does not exercise general or special power of appointment
b. minority—exercises general, but not special.
i. Rationale—general is very close to fee simple, so that donee
thinks of it as their own, whereas donee wouldn’t think of special
power as own property since can’t appoint it to self.
c. UPC—exercises only a general power, and only if the creating instrument
doesn’t contain a gift-over in case it’s not exercised.
i. Rationale—prevents power from being exercised inadvertently
3. Beals v. State Street Bank & Trust Co., B received general power of
appointment in a trust. B received most of principal, but kept some in the trust. B
later changed the general to a special power of appointment to avoid tax
consequences. B didn’t exercise the power in life, but put in residue of will that
she’s leaving the power of appointment to C.
a. Special or general?—ct admitted extrinsic evidence of the way B treated
the property. Even though she called it special, she treated it like general.
Under state law, general is presumptively exercised.
4. person with general power can appoint special power to be passed to another
donee; personal with special power can appoint general power be passed to another
donee, depending on original donor’s intent.
i. Loyalty: Trust Administration and Fiduciary Obligation: The Duty of Loyalty, 771-91
i. In General, the Fiduciary Duty
1. Law of administration encourages trustees to act appropriately to balance their use
of discretion
 2. justification for vigorous policing—beneficiary can sue, but problems are hard
for them to detect b/c they may be disabled, underage, not a financial expert, or
just doesn’t get enough information about what’s going on in the trust.
Beneficiaries often cannot alienate their interest (ex, spendthrift trust).
3. Trustees and executors both have fiduciary duty
a. Another place where law of will and trusts overlaps
b. Executor’s duty is to the beneficiaries of the estate
c. Difference is that executor is about liquidating the estate, but trustee is
preserving and maintaining the assets
4. agency relationship—settlor is principal, trustee is agent. Trustee works by
dealing with situations that settlor can’t direct in advance, or didn’t foresee.
5. Duties
a. Loyalty—forbids self-dealing
b. Prudence—reasonableness
c. Subsidiary rules
i. Duty not to delegate use of discretion
1. but CAN delegate authority to invest assets
appropriately and wisely; ie, trustee can get expert
financial help
ii. duty to collect and protect—by defending and bringing claims,
obtain possession without delay
iii. duty to inquire—inquire into circumstances of beneficiaries
iv. duty of impartiality—balance btw income and principal
beneficiaries
v. duty to diversify part of modern administration, since it often
deals w/ financial assets; can’t just protect princiapl
i. duty to earmark trust assets—designate as trust’s rather than
trustees;
1. prevents mistakes and informs the beneficiary of what
their interest is in, and prevents trustees from claiming
profit from good investments and disclaim from bad ones.
2. liability—old rule was strictly liable, but new is to be
liable only for the loss caused by the failure to earmark,
not from general economic conditions
ii. duty to not mingle trust funds with own—violated even if didn’t
use trust funds for trustee’s own purpose
1. commingled funds are difficult to trace, and trustee’s
creditors might mistakenly reach trust
2. although now trustees can take advantage of economies of
scale and mix trust assets together from diff trusts
3. liability—modern is like above, in that liable only for the
loss caused by the commingling.
iii. Duty to inform and account to beneficiaries
ii. Trustee’s Powers
1. doesn’t have any inherent powers
2. defined by the trust instrument, statute, common law.
iii. Duty of Loyalty
1. Trustee’s duty of loyalty is solely in the interests of the beneficiaries
2. It’s the most important duty; if doing this, then all the other responsibilities will
fall in line.
3. the trustee’s fee isn’t considered self-dealing b/c the settlor set it up (or statute)
4. duty against self-dealing—it’s where trust and trustee engage in a
transaction; selling to family is considered self-dealing, even if fair and
reasonable price
 a. possibly could get consent from all beneficiaries after full disclosure.
Probably still need a court order as well.
b. Harman v. Hartle, T’s executors were son in laws. Executors indirectly
sold property to one of the executor’s wives. The wife turned around and
sold the property for a profit. The buyer was bona fide purchaser w/out
notice. ct says selling to wife is self-dealing by the executor, and therefore
has to give a portion of the profit to the Π, but no punitive damages.
5. trust pursuit rule—beneficiaries can get property back if purchaser isn’t bona
fide purchaser (paid consideration), or the purchaser had notice of the trust.
6. no further inquiry rule—as soon as trustee is engaged in self-dealing, it’s a per se
violation with no further inquiry as to whether it was fair or reasonable
a. In re Gleeson, trustee stayed on the land he was already a tenant on as a
holdover for a year after settlor died, and paid more in rent than he did
previously. ct applies no further inquiry rule. Doesn’t even matter that the
trustee/tenant paid more rent than he would have otherwise from the
earlier lease.
7. duty to avoid conflicts of interest—trust deals with third party w/ whom
trustee has an interest; if it’s not self-dealing then no further inquiry rule does
NOT apply and the court will consider if it’s fair and reasonable
a. In re Rothko, T’s will had 3 co-executors. Two of them had an conflict
of interest when they sold T’s paintings to their gallery and corporation.
One was the director/treasurer, and the other was an artist with a contract
with the gallery to sell his own paintings. Gave the gallery a 50%
commission (old commission was 10%), and sold many paintings quickly.
Third executor knew about it, but didn’t actually stop them after bringing
it up.ct applied the no further inquiry rule, but if they did inquire they
would’ve said the conduct was terrible. As for the negligent executor, he’s
still responsible b/c he had notice of the other’s misdeeds. Found against
negligent one for compensation damages, but the others for appreciation
damages as well.
8. compensation or appreciation damages—ct can choose btw compensating for
the value of the loss at the time it was sold, or adding in the appreciation value of
the assets as well. If there’s misfeasance, more likely to be responsible for aprec.
9. co-trustees—common law is for private trusts, unanimity is required, but modern /
UTC is that majority is ok. Even if unanimity is not required, trustees still have
duty to prevent breach of trust by co-trustee by bringing suit. Unanimity is not
required for charitable trusts.
j. Prudence: Trust Investment Law: The Duty of Prudence, 791-97
i. Keep in mind that there’s lots of overlap btw the duties of prudence and impartiality. Ct
can just choose which theory to apply
ii. Impartiality and prudence duties primary apply to investments, but can apply to other
assets
iii. Standard of Care—objective
1. restatement / prudent investor—exercise care and skill as man of “ordinary
prudence” would do with own property; ie, treat it as you would your own
uniform trust code (new)—trustee should consider other circumstances of trust
and exercise reasonable skill, care and caution; reasonable care standard
iv. Prudent Investor Standard
1. legal list evolution—when real property was in trusts, inflation wasn’t a problem.
After the Southsea Bubble burst and people lost money in investments, the court
laid out a list of investments which are allowed for trustees to invest in. now
displaced by prudent investor standard
2. modern portfolio theory—criticizes the way the courts apply the prudent man
rule b/c they don’t understand investments; trustees actually need to diversify, and
 not shy away from high-risk investments. Even low-risk investments can be bad
b/c they’re subject to losses from inflation. Consider the rate of return on the trust,
not on individual assets.
3. prudent investor standard
a. increased sensitivity to tradeoff btw risk and return, and invest
appropriate; ie, don’t have to preserve actual dollar amount of principal as
primary concern.
b. Imperative to diversify—not an option to diversify, it’s a duty
c. reversal of non-delegation rule
i. it’s ok to delegate b/c investing is complex, and it’s assumed that
trustee won’t be an expert in all areas of investment
ii. doesn’t protect trustee from other aspects of prudent investor rule,
but just means that now it’s not automatically a violation to
delegate some stuff
k. Impartiality: The Principal and Income Problem: The Duty of Impartiality, 821-32
i. Duty of Impartiality
1. impartiality—trustee has to be impartial btw life income beneficiaries and
remaindermen, usually.
ii. The Principal and Income Problem
1. impartiality is tied to the principal and income problem b/c have to balance rate of
return on current assets (income) vs. value of principal (remaindermen)
2. notes after Dennis case, p 829
a. tax consequences—trustee is responsible for them now, too
b. Unitrust—settlor in trust instrument sets percentage of trust principal that
gets distributed to life income beneficiary. Beneficial b/c it ensures that
the income beneficiary’s interest is aligned with principal beneficiary’s
interest.
i. reflects prudent investor rule and modern portfolio theory since
the difference btw principal and income is really less defined in
real life, anyway
3. trustee’s interest—often are more conservative with trust and protect the principal
for the remaindermen, rather than maximize income for current life beneficiary.
a. remaindermen are more likely to sue and hold trustee personally liable;
b. if life beneficiary sues, they’ll just get more money out of the trust
c. paying too much to the life beneficiary would violate duty of prudence
iii. Impartiality and Prudent investor Example
1. Dennis v. Rhode Island Hospital Trust Co., Trust created and worth $300,000.
A large part of the assets were some buildings that were rented out and thus
making significant income ($35,000/yr), but were depreciating in value b/c of the
structure’s deterioration and worsening neighborhood. Trustee eventually sold
them for $130,000. Eventually the trust ended due to the Rule Against
Perpetuities, and the remaindermen received the principal.
2. Ct ruled based on the duty of impartiality—could’ve said that the income
beneficiaries would winning out over the remaindermen by far. Ct found that
trustee should’ve sold buildings right before the buildings depreciated greatly in
value, reasoning that this is the point at which trustee could no longer ignore that
the neighborhood was in decay, and thus would have preserved the principal.
3. Ct could’ve ruled based on prudent investor rule—at first it doesn’t look like a
violation since the assets were making income, BUT IT WASN’T DIVERSIFIED.
The new prudent investor rule wasn’t in place back then, but would be a violation
today.
4. Damages—trustee liable for difference btw what they would’ve sold it for right
before the decline in value ($290K) and what they did sell it for ($130K). $290K -
$130K = $160K * interest * # years since could’ve sold it = $345K
 5. additional breaches of trust—trustee kept bad records since hadn’t done the
accounting for 55 years. If they had done so, they could’ve went to the court and
proved that they had to keep the buildings b/c they would’ve taken a huge loss on
their sale, and thus admitting their mistake. Would’ve minimized damages
l. Inform and Account: Trust Property Rules: The Duty to Inform and Account, 830-43
i. rules and requirements
1. UTC—trustee is to keep “qualified beneficiaries” “reasonably informed” of
“material facts”
2. material facts are disclosed
a. trustee’s identity
b. that the trust exists at all, or when it becomes irrevocable
c. trust instrument itself (although the trust doesn’t have to be registered or
probated since it’s a private document)
d. trust assets and their value,
e. major transactions, investment strategy, notice of sale of assets
f. rate of compensation changes
3. qualified beneficiary—not a minor or incompetent beneficiary. Go to their
guardian.
4. Trustee has to send annual report of property, liability, etc.
a. justification—beneficiary needs knowledge since they’re the only ones
who can enforce the terms of the trust
5. beneficiary can waive the report or other information. Beneficiary can also
withdraw that waiver later.
a. justification—beneficiary just might not be interested; beneficiary might
want to save money on trustee fees. Beneficiary has opportunity to ask for
the accounting again.
ii. clash of interests
1. settlor’s interest in beneficiary’s knowledge of trust—settlor might not want
beneficiary to know to keep him from being lazy, or doesn’t trust with the
knowledge
a. can settlor waive this right? Possible to appoint trust protector, b/c trust
protector then has the power to bring suit against the trustee. Sometimes
otherwise beneficiary has right to know and demand from trustee. Cts are
divided.
2. trustee’s interest—have to try to figure out settlor’s intent
3. trustee’s agents—ie, trustee’s atty doesn’t have atty-client privilege against
beneficiary knowing about trust. Reasoning is that beneficiaries and not trustees
are the real clients when trustee hires atty.
iii. Fletcher v. Fletcher, Inter vivos trust made irrevocable upon death of co-settlor.
Surviving settlor orally informed trustee she didn’t want the beneficiaries to know about
the terms of the trust, but not mentioned in the trust anywhere about the secrecy. Trust was
amended to split into 3 trusts upon surviving settlor’s death. One provided for adult son
for medical care, and the others were for his kids. After adult son died, principal would be
paid to the kids. Trustees wouldn’t show son the entire trust document (including the
original trust) and complete list of assets. Trustees argue that duties to separate
beneficiaries do not overlap, and that trustee has atty-client privilege with settlor. But
court finds that beneficiary needs to know all terms to know if trust is being adequately
distributed, and that beneficiaries are at least equivalent to the settlor in terms of duty.
1. Unitary trust—the court found that there is not actually 3 trusts, but one trust
since all of the beneficiaries can all pull from both the principal and the income.
Therefore the duties are overlapping to all the beneficiaries.
iv. National Academy of Sciences v. Cambridge Trust Co, H gave W lifetime trust to
terminate if W remarries. W remarried but never told anyone, and had her brother receive
the checks, where she signed her old name. This suit is btw the remaindermen since W
 died and the bank that paid out the income to W. Trustee found liable b/c they didn’t
inquire about easily accessible information over a 20+ year period. Could’ve just asked
the beneficiary to sign an annual letter saying she’s not married.

m. Charitable Trusts: Charitable Trusts: Relief, Advancement, Promotion … and Perpetuity, 729-37
i. distinctions btw charitable and private trusts
1. beneficiary not required to be ascertainable—can be a class of people. has to
be for an indefinite # of people, and not a named person
2. purpose must be charitable
a. can be for salary of law professor, but not for benefit of lawyers in general
b. can’t endow a political party, but can improve gov’t in a way advocated by
a party, such as supporting a candidate.
3. is exempt from Rule Against Perpetuities—beneficiaries can die, but purposes
can exist forever
4. charitable trusts are tax-exempt—income is exempt, and the money that’s
transferred to it is deducted from decedent’s income
5. settlor can let trustee name trust—giving trustee power makes it more flexible
6. cy pres applies to charitable purpose
a. the purpose is charitable but can’t continue for some reason, then can
change purpose that would further the original intent of the settlor
b. ex, charity to cure polio, but polio is no longer a problem. purpose of trust
can be changed to something similar, like childhood disease that needs
vaccine.
7. state atty general enforces the trust—rather than the beneficiaries in a normal
private trust.
ii. Valid Purposes
1. Restatement list of valid charitable purposes
a. relief of poverty, advancement of education, advancement of religion,
promotion of health, governmental or municipal purposes, other beneficial
accomplishments for the community.
b. “beneficial to community” means purpose of a character sufficiently
beneficial to the community to justify permitting property to be devoted
for an indefinite time to their accomplishment
2. if not a charitable trust, then will be considered a benevolent trust, which is subject
to RAP. Benevolent trust is considered private trust.
3. Shenandoah Valley National Bank v. Taylor, T tried to leave estate in trust to
kids in 1st, 2nd, and 3rd graders on day before easter and Christmas. Ct says
benevolent and not charitable b/c
a. not for educational purposes—the kids would just spend it anyway, and
not on education.
b. not beneficial to community—the kids aren’t poor, or even if they are, it
goes to the rich and poor alike.
c. If hadn’t been in a trust, would have been a class gift, naming the class as
1st, 2nd, and 3rd graders. Wouldn’t be in trust, though, and wouldn’t endure.
d. Counterargument—should honor the intent. Could’ve modified the trust
so that the money goes to the school to be spent on the kids.
e. is there another purpose that could’ve fit? relief of poverty, advancement
of religion
4. the alphabet trust, T funded a trust to create more uniform alphabet. Ct says not
charitable purpose. Shows that sometimes being too specific will make a trust fail.
Could’ve just said for the study of language, etc.